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Beth Gladden Coulson, Judge.
Appellant, Country Corner Food and Drug, Inc., appeals a decision of the Faulkner County Circuit Court awarding judgment to appellee, Robert L. Reiss, for breach of an agreement to provide family health insurance coverage pursuant to an oral employment contract. We affirm.
In October, 1985, appellee quit his job and moved his family from Kansas in order to begin work for appellant in Greenbrier, Arkansas, as a meat-cutter. At the time that appellee began work for appellant, appellee’s wife was pregnant; health insurance coverage for the pregnancy and birth was discussed, as well as coverage for the entire family, including the child, after its birth. The contract of employment between the parties was never reduced to writing and was of indefinite duration. Appellee’s baby was born in January of 1986 and was returned to the hospital within a few weeks for respiratory problems. The expenses incurred as a result of the infant’s hospitalization were not covered by insurance, and appellant fired appellee after appellee requested that appellant assume responsibility for the medical bills. Thereafter, appellee sued appellant for breach of contract and requested that appellant be required to pay the amount of the baby’s medical expenses.
In his complaint, appellee asserted detrimental reliance on appellant’s promises to provide medical insurance for appellee and his family. In its answer, appellant countered that the contract violated the statute of frauds because it was not in writing. After a trial, the circuit court rendered judgment for appellee. In its findings of fact, the circuit court found that the parties entered into an employment contract whereby appellant agreed to provide medical/hospitalization insurance for appellee, his wife, and his child to be, and that no such insurance coverage was perfected. The trial judge also held that substantial part performance removed the contract from the statute of frauds. On appeal, appellant asserts that the trial court erred in refusing to find the contract violated the statute of frauds and that there is insufficient evidence to support the trial court’s findings of fact. We disagree with appellant on both points.
Appellant is correct in stating that part performance does not remove an oral contract of employment from the statute of frauds. It has long been held that partial performance of a contract for personal services does not take a verbal contract out of the operation of the statute of frauds except for that part which was performed. Swafford v. Sealtest Foods Division of National Dairy Products Corp., 252 Ark. 1182, 483 S.W.2d 202 (1972); Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S.W. 130 (1912). See also Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985). This is not determinative, however, of the outcome here, for we find that the employment contract in question does not violate the statute of frauds for other reasons. We do not reverse the trial judge if he reached the right result, even though he gave an erroneous reason. Worthen Bank & Trust Co. v. Adair, 15 Ark. App. 144, 690 S.W.2d 727 (1985); White v. Gladden, 6 Ark. App. 299, 641 S.W.2d 738 (1982).
Clearly, the employment contract in question was terminable at will by either party because appellee was not bound to serve for a specified period of time. Proctor v. East Central Arkansas EOC, 291 Ark. 265, 724 S.W.2d 163 (1987). Because the contract was terminable at will by either party and was for an indefinite duration, it did not run afoul of the statute of frauds. See Ark. Stat. Ann. § 38-101 (Repl. 1962). “Contracts of employment, beginning in praesenti, and of indefinite duration generally, are held not to be obnoxious to the statute, since they are susceptible of performance within the year from the time of their inception.” 72 Am. Jur. 2d Statute of Frauds, 11 (1974).
Ordinarily, it is only oral agreements which cannot be performed within the year that are unenforceable under the provision of the statute regarding contracts not to be performed within a year. It is the generally accepted rule that to bring a contract within the operation of this provision of the statute, there must be an express and specific agreement not to be performed within such period, for if there is possibility of performance within a year, the agreement is not within the statute.
Id. at 9.
In Meyer v. Roberts, 46 Ark. 80 (1885), the Arkansas Supreme Court noted that the statute of frauds applies only to agreements which appear from their terms to be incapable of performance within one year. See also Halsell v. Kimberly-Clark Corp., 518 F. Supp. 694 (E.D. Ark. 1981), aff’d, 683 F.2d 285 (8th Cir. 1982), cert. den’d, 459 U.S. 1205 (1983). Accordingly, we hold that the statute of frauds was not applicable to the contract in question because it was for an indefinite duration and was terminable at the will of either party; hence, the possibility existed that the contract could be performed within one year of its inception.
Even if the statute of frauds were applicable to the employment contract in question, the evidence presented below reveals sufficient detrimental reliance on the part of appellee to take the contract out of the operation of the statute of frauds. “Where one has acted to his detriment solely in reliance on an oral agreement, an estoppel may be raised to defeat the defense of the statute of frauds.” 73 Am. Jur. 2d Statute of Frauds, 565 (1974). “An estoppel may be raised to defeat the defense of the statute of frauds although there is no fraud in the inception of the contract.” Id. at 567. Additionally, we have held that estoppel may prevent the application of the statute of frauds. In Ralston Purina Co. v. McCollum, 271 Ark. 840, 611 S.W.2d 201 (Ark. App. 1981), we stated:
A promise is binding if an injustice can be avoided only by enforcing the promise, if the promissor [sic] should reasonably expect to induce action or forbearance of a definite and substantial character by the promissee [sic], and if that action is induced.
Id. at 844.
Here, appellee testified that, in reliance upon appellant’s promises of employment and benefits, including health insurance coverage for the pregnancy and birth, as well as family health insurance coverage following the child’s birth, appellee quit his job, giving up the benefits attendant thereto, and moved his family to Greenbrier, Arkansas. This is sufficient detrimental reliance to remove the employment contract from the operation of the statute of frauds.
Even if the contract of employment in question had been within the statute of frauds, appellant would still be liable for the compensation due. In Swafford, supra, the Arkansas Supreme Court explained:
While it is true that an oral contract for personal services in excess of one year is void, and that part performance will not remove such contract from the operation of the statute of frauds, it is also true that the employer will be liable for whatever service was rendered.
252 Ark. at 1187. According to appellee, family health insurance coverage was part of the total compensation promised him by appellant in exchange for appellee’s services. In Arkansas, it has been held that the terms of the oral contract may be shown as evidence of the amount to be recovered in such instances. Walker v. Shackelford, 49 Ark. 503, 5 S.W. 887 (1887). Accordingly, we find no error in appellee’s recovery of the amount needed to reimburse him for the infant’s hospitalization expenses, because family health insurance coverage was part of the compensation promised appellee by appellant.
Appellant contends that the evidence is insufficient to support the trial court’s findings, arguing that appellee failed to prove the existence and breach of a contract and damages for the alleged breach. When the testimony is in conflict on the issue of whether the parties agreed, a fact question arises that is to be determined by the trial judge. Western Auto Supply Co. v. Bank of Imboden, 17 Ark. App. 4, 701 S.W.2d 394 (1985). We do not reverse on a factual issue as long as there is evidence to support the trial court’s finding and the finding is not clearly against the preponderance of the evidence. Id.
Appellee testified that appellant promised to pay him $400.00 per week, vacations and holidays, and family insurance coverage. According to appellee, appellant also promised to pay for the conversion of appellee’s prior insurance with Pilot Life in order to cover the pregnancy and birth of the child. The evidence demonstrates that appellant did comply with this promise. Appellee also testified that, in addition to the conversion premium, appellant paid him for the $900.00 representing the balance of the pregnancy and birth expenses that were not covered by the conversion plan. Appellee testified that appellant promised that insurance would be provided for the baby after its birth under a new family health insurance policy and that, prior to the baby’s birth, two application forms were sent in for the family coverage. The first form was rejected because it was the wrong form; the second form was rejected because it was not sent in to the company on time. Appellee sent the third form in on the same day the baby was put into the hospital, but coverage was denied on that application because of the pre-existing condition exclusion. According to appellee, the mix-up was caused by appellant. Appellant disputed this and placed the blame upon appellee. Appellant admitted that he promised appellee that it would provide appellee with a family medical policy similar to appellant’s.
Appellant argues that there was no meeting of the minds because appellee’s compensation was to be $350.00 per week instead of the $400.00 to which appellee testified and because appellee’s policy through his prior job would not have covered the baby after its birth anyway. Appellee disputed this assertion. This dispute, however, is not determinative of whether a contract was reached. “The underlying purpose in awarding damages for breach of contract is to place the injured party in as good a position as he would have been in had the contract been performed.” Beardsley v. Pennino, 19 Ark. App. 123, 127, 717 S.W.2d 825 (1986). Regardless of whether appellee’s Pilot Life policy provided coverage for the baby after its birth, there can be no question that appellant promised to provide appellee with family health insurance coverage for the baby after its birth; appellant’s actions and his admissions at trial clearly support this conclusion. It is also clear that this coverage was not perfected and that the agreement was thereby breached.
We also reject appellant’s claim that appellee failed to prove damages. Appellant offered testimony about the amount of medical bills incurred as a result of the hospitalization of the infant following its birth. Appellant had promised to provide appellee with insurance coverage for such expenses. Accordingly, we cannot say that the circuit judge’s findings were clearly erroneous or clearly against the preponderance of the evidence.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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Melvin Mayfield, Judge.
A Pulaski County Circuit Court jury convicted appellant, David Ashley, of aggravated robbery and sentenced him to fifteen years in the Arkansas Department of Correction. He argues on appeal that the court erred in admitting into evidence certain identification testimony and that the evidence was insufficient to support the verdict.
In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the Arkansas Supreme Court held that when there is a challenge to the sufficiency of the evidence, we must review that point prior to considering any alleged trial errors and, in doing so, we must consider all the evidence, including any which may have been inadmissible, in the light most favorable to the appellee.
There is evidence in the record that about 10:30 p.m. on November 20, 1985, the owner and a clerk of a liquor store in southwest Little Rock were sitting behind the counter at the front of the store when two white men entered. One of the men remained at the front while the other man, who was wearing a jacket and had his hands in his pockets, went to the back of the store and looked into a beer cooler and into the storeroom where customers were not authorized to go. A little while later, the man at the front took a beer from a cooler and asked the man at the back if he had what he wanted or if everything was okay, and the man said “Yeah.” The owner of the store testified that this caused him to feel that something was going to happen so he got up and walked to the rear of the store, passing the man in the jacket who was returning to the front of the store.
About that time, the man in the front of the store pulled a pistol on the clerk, told him not to move, and that this was a robbery. The owner then emerged from the storeroom with a shotgun and yelled, the clerk dropped to the floor, and the men ran out the door and into the woods. The owner chased them for a distance and fired a shot in the air, but both men disappeared into the woods. Nothing was taken from the store and no one was hurt.
Several days later the store owner identified, from a photographic array, the appellant as the man in the jacket who went to the back of the store. He made the same identification at trial. Although the clerk identified the gunman, he was unable to identify the man in the jacket.
Robbery is committed when a person employs or threatens to employ physical force upon another with the purpose of committing a theft. Ark. Stat. Ann. § 41-2103 (Repl. 1977). Aggravated robbery is committed if a person is armed with a deadly weapon when he commits a robbery. Ark. Stat. Ann. § 41-2102 (Supp. 1985). A person is an accomplice of another if he aids another in planning or committing an offense. Ark. Stat. Ann. § 41-303 (Repl. 1977). An accomplice is criminally liable for the conduct of another person. Ark. Stat. Ann. § 41-302 (Repl. 1977).
Appellant relies on Hicks v. State, 271 Ark. 132, 607 S.W.2d 388 (1980), in support of his argument that he was only an innocent bystander during this episode and that the state failed to show he had the necessary intent to show accomplice liability. In Hicks, two black men and a black woman entered a 7-11 store. While the woman distracted the clerk, one of the men took several bills out of the cash register. After being apprehended, that person implicated Hicks. However, the pictures taken by a hidden surveillance camera showed only that Hicks stood near the cash register and near the other two people and that he had a bill in his hand. The court held this was insufficient evidence to sustain a conviction as an accomplice. The court stated:
The term accomplice does not embrace [one] who had guilty knowledge or who is morally delinquent; it includes only one who takes or attempts to take some part, performs or attempts to perform some act or owes some legal duty to the victim of the crime to prevent its commission; and mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of some legal duty to act, concealment of knowledge or failure to inform officers of the law, is not sufficient to make an accomplice.
271 Ark. at 136.
Appellant also cites Green v. State, 265 Ark. 179, 577 S.W.2d 586 (1979), in which our supreme court reversed and dismissed the conviction of a man who had entered a Church’s Fried Chicken place and made a purchase. As soon as he returned to the car, his companions entered and robbed the restaurant. Although one of the accomplices testified that it was Green’s job to see how much money was in the cash register, the court said:
The question of evidence necessary to corroborate an accomplice’s testimony to the extent of allowing a case to be submitted to a jury is necessarily governed by the facts and circumstances of each case as it is presented. Evidence which is merely suspicious in nature is insufficient, or if it is as consistent with innocence as guilt, it is not enough to submit the question of the defendant’s guilt to the jury.
265 Ark. at 182.
On appeal, we review the evidence in the light most favorable to the state and affirm if there is substantial evidence to support the conviction. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978). Substantial evidence is evidence that is of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other, but it must force the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980); Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982). Intent is a state of mind which is not ordinarily capable of proof by direct evidence, but it may be inferred from the circumstances. Johnson v. State, 7 Ark. App. 172, 646 S.W.2d 22 (1983). The fact that evidence is circumstantial does not render it insubstantial. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). Presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant factors in determining the connection of an accomplice with the crime. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Jurors are allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Johnson & Carroll v. State, 276 Ark. 56, 632 S.W.2d 416 (1982). Furthermore, the action of fleeing from the scene of the crime is relevant to the issue of guilt. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984); Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973).
We do not think the Hicks and Green cases, relied upon by appellant, can be taken to mean that the evidence in this case is insufficient for conviction. Both of those depended upon the testimony of an accomplice which must be corroborated in order to support a conviction. In this case, when viewed in the light most favorable to the state, there is evidence, that does not come from an accomplice and needs no corroboration, from which the jury could find that appellant and the gunman were acquainted; that they entered the liquor store together on foot; that appellant surveyed the back of the store and when asked if everything was okay, replied that it was; that this served as a signal to the gunman who then attempted to rob the store; and when confronted with the owner brandishing a shotgun, instead of dropping to the floor as an innocent bystander would do, appellant put himself directly in the line of fire by fleeing into the woods with the gunman. The appellant’s argument is based strictly on his interpretation of the facts. However, reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury, Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983), and the jury’s conclusion on credibility is binding on this court. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).
Appellant also argues that the trial court erred in admitting into evidence the identification made of him by the liquor store owner. Appellant filed a motion to suppress the identification because of a photographic lineup on December 2, 1985. The motion was denied by the trial court and appellant argues this was error because the photospread was unduly suggestive and created a substantial likelihood of an in-court misidentification.
The law regarding photographic arrays was summarized in Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), as follows:
Although the reliability of eyewitness identification is normally a question for the jury, the fundamental fairness of identification procedures addresses itself to the trial court. . . . Although the question whether a pretrial photograph identification procedure is unduly prejudicial may be a mixed question of law and fact,... we should not reverse the trial judge’s decision unless, viewing the totality of the circumstances, it is clearly erroneous. . . . Identification testimony is properly admissible, if from the totality of the circumstances the confrontation did not give rise to a very substantial likelihood of irreparable misiden-tification. . . . [Citations omitted.]
The test we apply in such identifications is based on factors stated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed. 2d 140 (1977). McCraw v. State, 262 Ark. 707, 561 S.W.2d 71. They are: the opportunity of the witness to view the criminal at the time of the crime, the degree of attention of the witness, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation.
271 Ark. at 539 and 541.
Applying those factors to the evidence in this case reveals that appellant was in the liquor store for five to six minutes; the store owner was watching him carefully because his conduct had aroused suspicion; less than two weeks after the robbery, the owner chose appellant’s picture out of six similarly appearing men; just two days after the robbery, the owner viewed a photospread which did not contain appellant’s picture, and made no identification; and the owner unequivocally identified appellant in court. An in-court identification can be held inadmissible as a matter of law only if, after viewing the totality of the circumstances, it can be said that the identification was patently unreliable. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). We reverse the trial judge on this issue only if we find he was clearly wrong. Beed v. State, supra. We cannot say the trial judge was clearly wrong in this case.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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George K. Cracraft, Judge.
Arkansas Blue Cross and Blue Shield, Inc., appeals from a judgment of the Lee County Circuit Court, sitting as a jury, finding it liable to appellee policyholders for benefits provided for a physical condition rather than those provided for a mental one and allowing the pro se appellee an attorney’s fee. It contends that the trial court erred in finding that appellee’s daughter’s hospitalization and treatment were for a physical illness rather than a mental condition, in excluding the testimony of appellant’s actuarial manager, and, because appellee was also a witness in the case, in holding that he, as a pro se attorney, was entitled to an allowance of fees.
On February 25, 1987, we granted a joint motion to certify this case to the supreme court pursuant to Rule 29(1 )(c) and (4)(b) of the Rules of the Arkansas Supreme Court and Court of Appeals. On June 9,1987, the case was remanded to the court of appeals for decision. Accordingly, jurisdiction lies in this court. We find no error and affirm.
The appellee and his minor daughter were insured under a group health insurance policy issued by appellant to appellee’s law firm. The policy provided liberal benefits for hospitalization and medical treatment for physical illness and accidental injury, but limited coverage for medical and hospital expenses incurred as a result of mental, psychiatric, or nervous conditions. The policy did not define either mental or psychiatric condition. Appellee’s daughter was hospitalized and treated for a disorder diagnosed as bipolar affective disorder. The appellee submitted the expenses for her hospitalization and treatment but only those limited benefits provided for mental conditions were paid. Appellant contended that the child’s disorder was a mental condition for which she had received psychiatric treatment and therefore was entitled only to limited benefits. The appellee brought this action to recover full benefits provided in the policy for an illness of a physical nature.
The appellee testified that he was a practicing attorney and the father of the insured minor whose developing problem became acute in 1984. She spent a great deal of time in bed crying and developed eating and sleeping problems. She lost weight and at times was in deep depression. In those periods, she would lose interest in all those things in which other children her age were engaged. At times, she was suicidal and talked about dying. At other times, she was energetic and her sleeping and eating patterns were near normal. She was subsequently hospitalized and was seen by psychiatrists. She was prescribed medications for her condition and has improved to such an extent that she is now a different person. Her mood, weight, and eating problems have stabilized and are now normal. Her sleeping patterns, though variable, are near normal. She is attending a special school and has reasonable expectation for a normal life so long as she remains on her medication.
Dr. Thomas Harris, a treating psychiatrist, testified that those of the medical profession who dealt in mental conditions had historically categorized these illnesses by symptom rather than cause. He stated that bipolar affective disorder, referred to in the past as manic-depressive disorder, is characterized by those symptoms described by the appellee but that “I think most laymen, and actually I think most physicians and most people in psychiatry now classify illnesses by cause or origin.” Although classified according to symptoms as a mental disease by some in the profession, he stated it is in fact a physical disorder. “The medical research is now, in my opinion, overwhelming in that regard.” He stated that it was an illness of the brain and body rather than of the mind and stemmed from a chemical imbalance which responds to medication. This illness, like many others he described, manifests some behavioral or emotional disturbances, but the causes of those manifestations are physical and biological in nature as distinguished from mental.
There was evidence that, although bipolar affective disorder originates as a physical illness which requires and responds to medical treatment, psychotherapy is utilized in several ways in treatment of the disease, as was done in Jane Doe’s case. It helps the patient accept the fact of her illness and learn to cope with it. It also assists the patient in becoming accustomed to normal feelings and reactions and learning the importance of taking the prescribed medication necessary to continued recovery. It is further utilized in measuring the effect of medication on a person’s mood levels in order that proper adjustment could be made in medicine dosages.
Dr. John Leite, a clinical psychologist who treated the minor appellee, testified that “[o]f all the kids I’ve seen, [Jane Doe’s] is most clearly a biologically-based illness.” Dr. Anne Utley, a treating psychiatrist, stated that, although bipolar affective disorder is classified as a mental problem, there are physical causes for it. Dr. Dolores DiGaetano, a psychiatrist, agreed that bipolar affective disorder was caused by hormonal imbalance and that it was a biological condition. Dr. Douglas Stephens, a clinical psychologist, testified positively that bipolar affective disorder was a physical disorder resulting from metabolic imbalance. Dr. Stuart Harris, a psychiatrist, also agreed that it was a biological, physical disorder of the brain function with multiple symptomatic manifestations.
There was evidence from medical witnesses that the classification of illnesses by symptoms by those in the psychiatric field was a primitive way of classification and that the profession was moving away from that method. It was pointed out that the Arkansas Psychiatric Society at its 1986 meeting had declared “[bjipolar affective disorder is an illness whose origin is biological.”
Appellant offered evidence of its director of claims that the classification system used by Blue Cross-Blue Shield was the same as that generally used by medicare and most hospitals, physicians, and clinics in the country. Under that system, bipolar affective disorder is classified as a mental disorder. Though most of the doctors who testified in person or by deposition indicated that the psychiatric field did classify bipolar affective disorder as a mental condition, all but one of those agreed that it was so classified by symptom rather than cause.
We agree with the trial court that the issue for its determination was whether bipolar affective disorder is a physical illness or a mental or psychiatric condition within the terms of the policy. On conflicting evidence, it expressly found that “the illness of Jane Doe is a physical condition within the meaning of the Blue Cross contract” and not a mental one. Findings of fact of a circuit court sitting as a jury will not be reversed on appeal unless clearly against a preponderance of the evidence and, in making that determination, we give due regard to the superior position of the trial court to judge the credibility of the witnesses. National Investors Fire & Casualty Insurance Co. v. Chandler, 4 Ark. App. 116, 628 S.W.2d 593 (1982). We cannot conclude on the facts of this case that the finding of the trial court is clearly against a preponderance of the evidence.
Appellant argues that the trial court erred in its conclusions because words of art connected with a profession are to be given the meaning given them by experts in that field. Les-Bil, Inc. v. General Waterworks Corp., 256 Ark. 905, 511 S.W.2d 166 (1974). It contends that, as the manuals used by most hospitals, insurers, and those in the mental health profession classify bipolar affective disorder as a mental condition, the trial court should have so found.
Although the expert witnesses testified that bipolar affective disorder was classified as a mental condition, all but one agreed that only its symptoms fell within that classification and its cause was physical. There was credible evidence from which the court could have found that classification of illnesses by symptom rather than cause was falling into disfavor within the mental health profession, and a large number of physicians and people in psychiatry were now classifying illnesses by their cause or origin. There was also evidence that the Arkansas Psychiatric Society had declared bipolar affective disorder to be an illness having a biological, rather than mental, origin. Furthermore, we agree with the trial court that those classification manuals used by physicians, hospitals, and medical insurers would not be controlling on this issue because they were not adopted in, referred to, or made a part of the policy. Certainly, upon this evidence, a question of fact was made for the factfinder to determine. See Mutual Benefit Health & Accident Assn. v. Rowell, 236 Ark. 771, 368 S.W.2d 372 (1963).
Appellant next contends that the trial court erred in excluding the proffered testimony of its actuarial manager pertaining to underwriting and rating criteria used by Blue Cross-Blue Shield to calculate risks and determine premium charges. He testified that the insurer did offer a broader mental condition coverage but for a higher premium. He testified as to experience in other states and reached the conclusion that the extended coverage for mental illness would require substantial increases in cost to Blue Cross-Blue Shield and/or in premiums to its customers.
The appellee’s objection to the appellant’s actuarial evidence was taken under advisement by the trial court but, at the close of the trial, was sustained because the court found the evidence to be irrelevant to the issues then before it. Appellant argues that it was relevant because the cost factors of additional coverage for mental conditions were taken into account when the premiums were set. It argues that calculation of risk and concomitantly the amount of premiums are factors to be considered in interpreting policy provisions.
Although the amount of the premium may not affect the plain wording of the policy, it is a fact which may be taken into consideration in construing doubtful or ambiguous policy language. 2 Couch on Insurance §§ 15:52 and 15:82 (1984). Here, the actuarial testimony dealt with the entire field of conditions classified as mental in nature, including those that truly may not have physical causes. Bipolar affective disorder was said by the medical experts not to be a mental condition and to affect only one percent of the population. There was no evidence as to how coverage for this particular disease might have affected premium calculation. Furthermore, we note that the trial judge ruled that, even if that evidence was considered, it would not have altered his decision. The determination of the relevancy of evidence lies within the sound discretion of the trial court, and its ruling on this issue will not be disturbed in the absence of an abuse of that discretion. Dooley v. Cecil Edwards Construction Co., Inc., 13 Ark. App. 170, 681 S.W.2d 399 (1984). We cannot conclude that the trial court abused its discretion in this case.
After judgment for the full amount claimed under the policy was announced, the court granted a subsequent motion allowing appellee penalties, interest, and attorney’s fees pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1980). Appellant does not question that appellee recovered the full amount claimed in his amended complaint or that the attorney’s fee allowed by the court was a reasonable one. It contends only that, as the appellee was litigant, advocate, and witness in the case, neither he nor his law partners are entitled to attorney’s fees. Appellant relies on the well-established rule that an attorney may not appear for his client as both advocate and witness as declared in Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). It further argues that one acting in such a dual capacity may not even be allowed fees for his prior preparation of a case unless he has completely withdrawn from further participation, citing Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984).
That line of cases is based upon the ethical rule that a lawyer not accept employment in litigation if he knows, or it is obvious that he, or a lawyer in his firm, ought to be called as a witness. There are many sound reasons for such a rule, most of which are set out in the commentaries to the rule and in Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982). In Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979), the court cited a number of cases in which it had recognized exceptions to that rule, none of which are applicable here.
The appellee makes a very persuasive argument that this rule has no application because he had a right to appear and present his case pro se. He contends that his right to act as pro se counsel carries with it the right to participate in all phases of the case and those rights should not be curtailed because he happens to be a licensed attorney. We do not reach that issue, however, because we conclude that, on the facts of this case, the appellee’s right to participate as litigant, advocate, and witness is expressly excluded from the provisions of the present rule governing professional conduct.
Rule 3.7 of the Model Rules of Professional Conduct provides as follows:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where-.
(1) the testimony relates to an uncontested issue-,
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(Emphasis added).
Here, appellee testified that he was a licensed, practicing attorney and the father of Jane Doe. He outlined to the court his observations of her behavioral pattern prior to seeking medical assistance, her present condition, pursuits, and plans for the future. None of his testimony related to an issue in controversy nor conflicted with the testimony of any other witness. All medical witnesses for both sides agreed that the child did have those behavioral patterns and symptoms to which he testified and all based their professional opinions and conclusions on that statement of history. The symptoms that the father described were not in issue. The material issue in the case was not what her symptoms were, but the conclusions to be reached from that agreed upon medical history.
The commentary to Rule 3.7 points out that, because a witness is required to testify on the basis of personal knowledge while the advocate is expected to explain and comment on the evidence given by others, it may not be clear to the factfinder whether the statement by an advocate witness should be taken as proof from personal knowledge or as analysis of that proof by an advocate. It further recognizes, however, that, if the testimony is uncontested, the ambiguities resulting from the dual role become purely theoretical. As the appellee’s testimony did not relate to any contested issue, the prohibition contained in Rule 3.7 applied to neither him nor his partners.
At the time the petition for award of attorney’s fees was filed, appellee’s partners filed an affidavit with the court in which they stated they were making no claims for any attorney’s fee in the case. It is argued that the pro se appellee should not be allowed fees under these circumstances. We do not agree.
It is well settled that attorney’s fees are awarded under Ark. Stat. Ann. § 66-3238 not as property of the attorney but by way of indemnity to the litigant. Equitable Life Assurance Society of the United States v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974). In this case, appellee was the litigant. The rule applied in the majority of decided cases, with which we agree, allows statutory attorney’s fees to pro se litigants. The rule is discussed in McMahon v. Schwartz, 109 Misc.2d 80, 438 N.Y.S.2d 215 (1981), as follows:
[T] he party, being an attorney, gives the professional time, knowledge, and experience in the conducting or defense of his suit, which he would otherwise have to pay an attorney for rendering. It can make no difference to the defeated party, who is by law bound to pay the costs of the prevailing party, or a fixed equivalent under the Code for it, whether that attorney is the prevailing party himself or another attorney employed by him. The plaintiff, like any other professional man, is paid for his time and services, and if he renders them in the management and trial of his own cause it may amount to as much pecuniary loss or damage to him as if he paid another attorney for doing it.
See also Parker 72nd Associates v. Isaacs, 109 Misc.2d 57, 436 N.Y.S.2d 542 (1980); Winer v. Jonal Corp., 169 Montana 247, 545 P.2d 1094 (1976); Weaver v. Laub, 574 P.2d 609 (Okla. 1977); Annot., 78 A.L.R.3d 119 (1977).
Affirmed.
Adopted by the Arkansas Supreme Court on December 16, 1985, in the per curiam In the Matter of the Arkansas Bar Association: Petition for the Adoption of Model Rules of Professional Conduct, 287 Ark. 495, 702 S.W.2d 326 (1985), to become effective January 1, 1986. | [
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James R. Cooper, Judge.
The appellant in this civil case, a real estate broker, negotiated the sale of the appellee’s home in Fairfield Bay to David T. Hopkins and Barbara Hopkins for the sum of $106,500.00. The sale contract provided that the buyers would pay for the property by making a cash down payment of $10,000.00 at closing and executing a deed of trust for the balance. The appellant’s commission, $6,390.00, was to be deducted from the down payment as part of the closing costs. At the appellant’s suggestion, however, the buyers made a cash down payment at closing of only $2,797.00 in addition to the $1,000.00 earnest money they had previously paid, and gave the appellant a promissory note for $6,300.00 for his brokerage commission, the note being secured by a second mortgage on the property they were purchasing. The buyers subsequently defaulted on their mortgage payments to the appellee, and the appellee filed a foreclosure action against them without making the appellant a party to the action. Prior to trial, the appellee and the buyers arranged a settlement whereby the appellee accepted a quitclaim deed from the buyers in release of their note and first mortgage to her. The appellee then brought an action against the appellant to cancel his second mortgage on the property, alleging fraud and breach of fiduciary duty. The appellant counterclaimed, seeking judgment against the appellee in the amount of the buyer’s debt, and foreclosure of his second mortgage. Following trial, the chancellor declared the second mortgage void, struck it from the record, and denied the appellant’s counterclaim. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in striking the second mortgage from the record and denying his counterclaim for foreclosure of the second mortgage. We find no error, and we affirm.
The appellant contends that striking his mortgage and denying his counterclaim was error because the appellee took the quitclaim deed from the buyers subject to all mortgages of record. Generally, a mortgage lien is extinguished only by payment or release, Barnett v. Bank of Malvern, 176 Ark. 766, 4 S.W.2d 17 (1928), and one who purchases land on which there is a recorded mortgage takes with notice of it and subject to the mortgagee’s rights. First State Bank v. Cook, 192 Ark. 213, 90 S.W.2d 510 (1936); see Vernon v. Lincoln National Life Insurance Co., 200 Ark. 47, 138 S.W.2d 61 (1940).
Although it is undisputed that the appellant’s second mortgage was recorded, the appellee denies that she had knowledge of that second mortgage prior to filing her foreclosure suit against the buyers. She testified that she was unaware that the buyers had executed a note and mortgage to the appellant for his commission, and that it was her understanding that the appellant had received his commission at closing. The appellee’s closing statement indicates that the buyers paid a cash down payment of $10,000.00, and that the appellant’s brokerage commission was deducted from that payment. The only indication that more than one mortgage existed on the property is a reference to “attorney’s preparation of mortgages and notes (V2 of $90.00),” found in the closing statement. The appellee could thus assume, from the documentary evidence, that the appellant had been paid his brokerage commission from the buyers’ down payment at closing. We find that the chancellor was presented with sufficient evidence to support a finding that the appellant, who was the appellee’s broker, did not fully disclose to the appellee the substance of his negotiations with the buyers.
A real estate broker or seller’s agent has a duty to disclose the terms of pending negotiations so that the seller may act advisedly in determining whether an offer is satisfactory; a broker who fails to correctly disclose material facts concerning the negotiations is not entitled to a commission, even if he produces a buyer who is ready, willing, and able to purchase. Carnahan v. Lyman Real Estate Co., 170 Ark. 519, 280 S.W. 5 (1926); Silver Fox, Inc. v. Penfield Real Estate, Inc., 267 Ark. 805, 590 S.W.2d 869 (Ark. App. 1979). A broker owes his principal the utmost good faith and loyalty, and is at all times required to make a full disclosure to his principal, not withholding any valuable information from him, and a broker who fails to make that disclosure forfeits all rights to compensation and renders himself liable for any profits derived. Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983).
Our standard of review is clear. The findings of the chancellor will not be disturbed on appeal unless they are clearly against the preponderance of the evidence and, because the question of the preponderance of the evidence turns heavily upon questions of credibility, we defer in this regard to the chancellor’s superior position to determine the credibility of the witnesses. Toney v. Haskins, supra; ARCP Rule 52(a). Although the chancellor in the case at bar made no specific finding of fraud or breach of fiduciary duty on the part of the appellant, he did question the appellant’s close personal relationship with the buyers, and whether the appellant fully disclosed to the appellee the negotiations surrounding the purchase. Under these circumstances, we cannot say that the chancellor erred in denying the appellant’s counterclaim and striking his mortgage from the record.
Affirmed.
Corbin, C.J., and Coulson, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from the Arkansas Workers’ Compensation Commission and presents the question of whether the employer or the Death and Permanent Total Disability Bank Fund is liable for certain weekly benefits due to the claimant.
The claimant suffered a compensable injury on December 26,1980. The Commission held that his healing period ended on February 7, 1983, and that he became permanently and totally disabled on that date. It was stipulated that, as of December 6, 1984, the employer had paid weekly indemnity benefits totaling $25,956.00 and medical benefits of $25,540.78. The employer contended that all the weekly benefits paid, whether for temporary total disability or permanent total disability, should be applied toward the employer’s liability limit of $50,000.00 as provided in Ark. Stat. Ann. § 81-1310(c)(2) (Supp. 1981), in effect at the time of the injury in this case. This limit was fixed by Act 253 of 1979, which amended various sections of the workers’ compensation law and which, as it existed on December 26,1980, provided as follows:
The first Fifty Thousand Dollars ($50,000.00) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier in the manner provided in this Act. An employee or dependent of an employee who receives a total of Fifty Thousand Dollars ($50,000.00) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this Act but all such benefits in excess of Fifty Thousand Dollars ($50,000.00) shall be payable from the Death and Permanent Total Disability Bank Fund.
The Commission affirmed a law judge’s finding that the employer was not entitled to credit its weekly temporary total disability payments against the statutory limit of $50,000.00 as that limit applied only to weekly indemnity benefits paid for permanent and total disability. After quoting the statute, the Commission’s opinion stated:
Of course, the second reference to the $50,000.00 is not followed by “weekly benefits for death or permanent total disability” but in context clearly refers to permanent disability payments. It would be a total distortion of legislative intent and plain and clear meaning of an unambiguous statute to find that temporary total disability should be counted toward the ceiling. The reference to “all such benefits” plainly refers back to the “weekly benefits for death or permanent total disability.”
The authors of the Statute could not have intended for temporary disability benefits and permanent disability benefits to be treated as interchangeable since they are plainly authorized only in diametrically opposed situations. The worker who qualifies for temporary benefits is paid while in his healing period and until his condition stabilizes. Until the healing period is ended, there is no way to determine whether there is permanent disability. This distinction is maintained in the case law. See Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982) for a discussion of the healing period and the necessity for the injury to stablize before it is ended. Temporary total disability benefits are just that — “temporary”—we could not award them past the end of the healing period even if we wanted to because the Arkansas Supreme Court has defined temporary total disability as “that period within the healing period in which the employee suffers a total incapacity to earn wages” (emphasis supplied). Arkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Temporary total disability benefits were recognized as a legitimate form of benefits distinct from permanent benefits in International Paper Company v. McGoogan, 255 Ark. 1025, 504 S.W.2d 739 (1974). That case settled the precise issue of whether such a form of benefits could be awarded in addition to scheduled (permanent) benefits. Since there are clearly two separate forms of disability payments, i.e., temporary and permanent, it is compatible with a common sense interpretation of § 10(c) (2) to find that only permanent disability benefits are to be counted toward the ceiling at which the Bank Fund takes over since permanent benefits are the benefits which are payable by the Bank Fund and are the benefits which are clearly referred to in the statute. To construe the statute to include payments of temporary total disability benefits would be to disregard the patent language and time honored distinction between the two types of benefits in our statutes and decisions. If the legislature intended such a convoluted interpretation as the respondents maintain, it would have said so. We note that several cases are cited, but they are not controlling. While the two types of benefits may have been added together to reach the ceiling in those cases, no objection was raised, and the issue was not decided or discussed.
On appeal to this court the employer argues that section 81-1310(c)(2), as fixed by Act 253 of 1979, is ambiguous and contends that the phrase “first $50,000.00 of weekly benefits for death or permanent total disability” could refer to either the condition of the claimant as ultimately determined by the Commission or to the characterization of the weekly benefits. This contention is more clearly put by an amicus curiae brief which states that disability payments made before it is determined the claimant is totally and permanently disabled are “nonetheless ‘weekly benefits for death or permanent disability.’ ” It is conceded that medical and rehabilitative expenses would not apply toward the statutory maximum but it is argued that all weekly benefits paid for both temporary total disability and permanent total disability should apply toward the statutory maximum.
We do not agree that the section is ambiguous, and we think the Commission’s interpretation is correct. This section was involved in the case of Hill v. CGR Medical Corporation, 9 Ark. App. 334, 660 S.W.2d 171 (1983), affirmed by the Arkansas Supreme Court in 282 Ark. 35, 665 S.W.2d 274 (1984), and the Commission’s decision is in harmony with the decision in Hill. The appellant calls attention to Ark. Stat. Ann. § 81-1310(a)(C)(Supp. 1981) (which also came from Act 253 of 1979), and points to the $56,700.00 provided there as the employer’s limit of liability for weekly benefits. However, that section expressly states that the limit does not apply “in cases of permanent total disability.” As the Commission’s opinion points out, it is clear that there is a distinction between permanent total disability and temporary total disability and we do not think the limit of $56,700.00 (based upon 450 weeks at the then maximum weekly benefit of $126.00) provided in section 81-1310(a)(C) causes any ambiguity in regard to section 81-1310(c)(2).
Appellant also argues that even if we find there is no ambiguity we should reach the result appellant submits because it has made an advance payment of compensation for which it should be reimbursed pursuant to Ark. Stat. Ann. § 81-1319(m)(Repl. 1976). Again, we do not agree. Under Ark. Stat. Ann. § 81-1310(c)(2)(Supp. 1981), the first $50,000.00 of weekly benefits for death or permanent total disability must be paid by the employer or its insurance carrier before the Bank Fund becomes liable. The payments appellant made to the claimant prior to February 7, 1983, were for temporary total disability. Only those payments made after that date were for permanent total disability and only those payments may be applied toward the maximum of $50,000.00.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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John I. Purtle, Justice.
On April 5, 1975, appellant issued its check payable to Donald L. Nelsen in the amount of 327,939.22. On April 11, 1975, G. A. Boucher endorsed Nelsen’s name, after executing an affidavit that he was authorized to endorse the check, with appellee bank and deposited the proceeds in an account owned by Nelsen and Boucher. May 28, 1975, Nelsen notified appellee that Boucher was not authorized to endorse his name on the check. In order to try to settle the dispute between Nelsen and Boucher and determine its responsibility in the matter, appellee filed a Bill of Interpleader in the Benton County Chancery Court on June 4, 1975. On the same day the chancery court granted a release from liability to appellee pursuant to Ark. Stat. Ann. § 27-816 (Repl. 1962). Donald L. Nelsen and G. A. Boucher, as well as N & B Ranch Corpora tion, in which they were the principal stockholders, entered into a stipulation and agreement in the interpleader action whereby they settled their dispute and the assets and liabilities of N & B Ranch Corporation were distributed between them. Part of the agreement required Nelsen to assume liability for the $27,939.22 check which had been endorsed by Boucher. Thereafter, on June 18, 1975, Nelsen, after stating Boucher forged his endorsement, persuaded appellant to issue a second check in the same amount as the one which Boucher had endorsed and deposited. Chase Manhattan Bank charged appellant’s account with both checks and refused to recredit appellant’s account with either check because appellee rejected Chase’s demand for recourse on the first check which had been endorsed by Boucher.
On January 5, 1978, appellant filed suit in the Benton County Circuit Court against appellee (First National Bank of Siloam Springs) and Don (Donald) L. Nelsen to recover the proceeds of the first check which Boucher had endorsed. Appellant alleged appellee was liable for a forged check endorsement pursuant to Ark. Stat. Ann. § 85-3-417 and in the alternative Nelsen was liable for conversion of the proceeds of the check on the grounds he had misrepresented that his endorsement on the check was forged. Nelsen defaulted and judgment was entered against him on February 22, 1978, for the sum of $27,939.22, plus interest and costs. Appellee defended the action and cross-complained against Nelsen 'and Boucher. On April 4, 1978, after the issues were joined and interrogatories and request for admission were filed and answered, appellee filed a motion for summary judgment. In support of the motion for summary judgment appellee relied upon the response to interrogatories and request for admission, as well as the affidavit of Boucher that he was authorized to endorse the check which was payable to Nelsen. Appellant opposed the motion and introduced the affidavit of Nelsen that Boucher forged Nelsen’s name. Therefore, there were filed two affidavits stating facts which were in direct conflict. In granting the motion for a summary judgment the court assumed there was a forgery of the first check but held it was immaterial to the decision inasmuch as negligence on the part of appellant in issuing the second check was the proximate cause of its loss and therefore appellant was barred from recovery against appellee. From the judgment granting appellee’s motion for a summary judgment appellant appeals to this Court.
We should mention that neither the payee bank nor the drawer of the check was made a party to the interpleader action nor were they notified of the results. The drawer did not notify the depository bank before issuing the second check.
Since this case was decided by summary judgment, we first must consider whether it was proper to do so. Without citing authority, which we deem unnecessary, we state that if there are any reasonable grounds upon which fair minded persons might differ left before the court after the evidence, pleadings and affidavits are received then a summary judgment should not be granted. In the present case we have the affidavit of Nelsen stating Boucher was not authorized to endorse the check and the affidavit of Boucher stating he had such authority. Therefore, there was an unresolved issue of fact before the court as to whether the check was forged or not. If it were not a forgery, the ultimate results would probably be different than if it were a forgery. The trial court assumed a forgery in an obvious good faith attempt to resolve the ultimate decision without the necessity of a complete and costly trial. We believe this constituted error in spite of the sincere effort to resolve the matter.
We do not decide the matter of liability pursuant to the Uniform Commercial Code because it must first be determined if there were a forgery. The cases are in conflict as to whether the depository bank is liable to the drawer except in restrictive endorsement situations. Underpinning & Foundation Construction, Inc. v. Chase Manhattan Bank, N.A., (N.Y. Ct. of App., February 8, 1979), 25 UCC Reporting Service 1104. If there were no forgery then the damage in this case was a result of the second draft being issued as recited in the trial court’s decision. There is no claim so far as the record shows that the second check was forged. If there were a forgery in the second check, then it is obvious there could have been negligence by the drawer which substantially contributed to the forgery. We do not have the benefit of all the facts surrounding the issuance of the checks by the drawer and therefore cannot make a decision relating to whether there were negligent acts contributing substantially to the forgery, if there were a forgery. It is possible the issuance of a check could contribute to a forgery but the facts of the case would be determinative.
Under the facts as presented, we reverse the summary judgment and remand the case to the trial court to determine whether there was a forgery and, if so, did the drawer substantially contribute to the making of the endorsement. We do not preclude the court from considering other facts which may come before it or allowing amendments to the pleadings or bringing in additional parties to this case.
Reversed and remanded.
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Conley Byrd, Justice.
Appellee Felix Allen Clark was injured when he drove his pickup truck into the rear of a loaded log truck stalled on the Ouachita River Bridge on Highway No. 82. The collision occurred about dark and during a heavy thunderstrom. The log truck, a battered and beaten 1968 model Chevrolet with no tail lights, was owned and operated by appellant Moses Newton. Appellee brought this action against appellant Moses Newton and appellant Bill Fitzgerald, a contractor or timber dealer for Georgia Pacific Corporation. The theory of liability of appellant Bill Fitzgerald was based upon the allegation that he was negligent in contracting with appellant Moses Newton because Moses Newton was an incompetent contractor to haul logs. The jury found the issues in favor of appellee and assessed the damages at $155,000.
To understand Fitzgerald’s contention that he is entitled to a directed verdict because Newton was not an independent contractor, it is necessary to understand the method employed by Georgia Pacific Corporation to obtain a supply of logs for the use of its paper mill operations. The record shows that Georgia Pacific Corporation does not purchase logs directly from the people who actually cut and deliver the logs, instead Georgia Pacific contracts with a number of people such as appellant Fitzgerald to supply Georgia Pacific with logs. The contract covers logs that are cut from lands owned by Georgia Pacific and lands of other owners generally through deals made by the contractor or dealer such as Fitzgerald. The contractor or dealer in turn either contracts or employs producers to cut the logs from the designated areas at so much per cord. When the producer hauls the logs to the mill, the loaded truck is weighed unloaded, and then weighed again by Georgia Pacific. Georgia Pacific issues a ticket to the producer showing the number of cords of wood delivered, the contractor for whom the producer is working, and the zone from which the wood is cut. The producer in turn presents the ticket to the dealer and receives a check from the dealer for the cords of wood delivered at the price the dealer is paying for pulpwood. The price paid for pulpwood by the different dealers is generally the same and is generally known throughout the area. The dealer makes his profit between the price he pays for each cord and the amount per cord that Georgia Pacific pays him. The price that the dealer receives from Georgia Pacific is not a general known fact. Fitzgerald had four regular producers with whom he contracted to cut the logs from the areas he had marked and designated. However, appellant Newton was not among Fitzgerald’s regular producers.
The record shows that Moses Newton does not cut logs from lands marked and designated by Fitzgerald or any of the other contractor dealers. Newton makes his own arrangements with a landowner to cut logs and when he gets a load ready to go, he hauls the logs to Georgia Pacific’s mill. The only reason Newton has any contact with Fitzgerald is that Georgia Pacific will not accept the logs unless they are credited to a contractor or dealer. Over the years Newton has called out the name of Fitzgerald or C. P. Johnson, another contractor dealer. Fitzgerald does not know that Newton is hauling logs until Newton presents his ticket for payment. During the calendar year 1975, Newton delivered four loads of logs (one on 9/18/75, two on 11/18/75 and one on 11/14/75). Newton hauled one load on January 12, 1976 and had hauled one load prior to noon on March 4, 1976. Appellee Clark was injured on March 4,1976 when Newton’s truck blew up on the Ouachita River Bridge while attempting to deliver the second load. Newton finally delivered the latter load to the mill on March 6, 1976. Fitzgerald paid the tickets for the delivery of each load when the tickets were presented.
Based upon the foregoing record the trial court should have directed a verdict for Fitzgerald for we agree with appellant Fitzgerald that Newton was not an independent contractor — i.e. Newton was a supplier of logs as far as Fitzgerald was concerned, Restatement of Agency §14K. In other words, Newton was not hired to perform services for Fitzgerald. Rather at the time of the collision between appellee Clark and Newton’s truck, the logs belonged to Newton and Fitzgerald had no obligation with respect to the logs until such time as the logs were delivered to the mill and Newton selected Fitzgerald as the contractor dealer to receive credit for the logs delivered.
For still another reason, we agree with appellant Fitzgerald that he was entitled to a directed verdict — i.e. there is no evidence that Moses Newton was an inocompetent contractor, even if we assume that Moses Newton was an independent contractor. The proof shows that Newton had been engaged in cutting and hauling pulpwood most of his life. Newton had hauled logs under the same arrangement for two or three years and had been paid by Fitzgerald and so far as the record shows without incident. Appellee to avoid our holding in Western Arkansas Telephone Company v. Cotton, 259 Ark. 216, 532 S.W. 2d 424 (1976), contends that there is no testimony or other evidence revealing that Fitzgerald’s past experience with Newton had been successful or even satisfactory. In attempting to avoid the holding in Western Arkansas Telephone Co. v. Cotton, supra, that a contractor cannot be held liable on the theory of negligent selection of an independent contractor where the contractor had had previous successful experience with the independent contractor, appellee wishes to place the burden of proof upon appellant Fitzgerald of showing that the previous experience was successful. However, the burden of proof was upon appellee to prove that Fitzgerald either knew or should have known that Newton was incompetent in some manner and that his injuries arose out of that characteristic which rendered Newton incompetent to do the work and appellee by a mere showing of prior expereince between the contractor and the independent contractor cannot shift the burden of proof to the contractor to show that the prior experience was successful — i.e. the burden was upon appellee to show that such prior experience was other than successful. Furthermore, with respect to the particular characteristic of Newton, which appellee contends made Newton incompetent — i.e. the awareness of Newton regarding proper emergency procedures on the highway — there is a dispute in the evidence as to whether Newton put out the proper warning devices. The fact that the jury found Newton negligent with respect to this particular incident does not raise a presumption that Fitzgerald had notice or knowledge that Newton was incompetent with respect to his obligations of displaying emergency warnings.
Moses Newton has also appealed contending that the trial court erred in permitting appellee to show that a blood test ordered by a State Policeman pursuant to Ark. Stat. Ann. § 75-1045 (c)(2) could be introduced without complying with The requirements of Ark. Stat. Ann. § 75-1045(c)(2) — i.e. that the blood was withdrawn under the supervision of a licensed physician and that the testing method had been approved by the State Health Department.
The record shows that after leaving work at 5:00 p.m. appellee had consumed one beer with his brother. Just before the collision, appellee had been to a package store to obtain some additional beer. He admits that upon leaving the package store, he had opened one can of the beer for the purpose of drinking the same. The record does not show what part, if any, of the last can was consumed. However, the medical technologist, George'Roberts, who performed a test on the blood allegedly drawn from appellee, at the request of the State policeman, testified that it contained 0.0% of alcohol.
To uphold the action of the trial court in admitting the blood test, appellee contends that the provisions of Ark. Stat. Ann. § 75-1045 (c)(2) supra, are solely for the benefit of the driver and that the driver of the automobile can waive the requirements as to the method of withdrawing the blood and the method of testing. We disagree with appellee in his interpretation of the statute. It appears to us that the requirements were placed in the statute, supra, to assure the public and the driver that they could rely upon the tests in connection with highway safety in general. Newton, as a member of the public, has a right to expect that such tests ordered by the State Police will also be reliable. It follows that the trial court erred in admitting the blood test into evidence.
Newton also contends that the verdict is excessive but in view of the reversals for the reasons set forth above, we need not reach that issue.
Reversed and remanded.
Harris, C.J. and Hickman, J., would affirm. | [
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Frank Holt, Justice.
In this eminent domain proceeding, the appellant acquired fee title to .36 acres of a three acre tract of commercial real estate land from the appellees. The jury awarded $20,000 as just compensation.
Appellant first contends that the court erred in permitting appellees’ expert witness, Evans, to testify to severance damages after testifying to the market value of the part taken. Appellant argues that the proper measure of damages in eminent domain cases in which a partial taking is involved is the difference in the market value of the whole property before the taking and the value after the taking less any enhancement to the remainder, citing Young v. Arkansas State Highway Commission, 242 Ark. 812, 415 S.W. 2d 575 (1967). We need not reach the merits of this argument since it is well established that when part of a witness’ testimony is admissible, it is proper for the court to refuse, as here, a motion to strike the witness’ entire testimony. Urban Renewal Agency of Harrison v. Hefley, 237 Ark. 39, 371 S.W. 2d 141 (1963); Young v. Arkansas State Highway Commission, supra; and Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S.W. 2d 748 (1968). Here appellees’ value witness, Evans, admittedly an expert witness, testified on direct examination that the value of the land taken was $23,500. Over appellant’s objection, however, he was also permitted to testify that the remaining property suffered $6,000 in severance damages because of the taking. Evans’ testimony, as an expert witness as to the total value of the land taken, was unquestionably proper. Therefore the court properly refused to strike his testimony in its entirety.
Appellant next asserts that the court erred in permitting the testimony of appellees’ witness, Magness, to go to the jury and in overruling appellant’s motion for a mistrial. Again the appellant moved to strike this witness’ testimony in its entirety. This witness, as did Evans, testified as to the sale price of other properties in the vicinity of the condemned property. This testimony is admissible if it is shown, as here, that the pieces of property are similar or comparable to the condemned tract. Here Magness testified to the sale price of similar property he had purchased in the vicinity for his own use. This tract and the property being taken had “good easement drive off” and substantial highway frontage. His testimony of comparable sales in the vicinity was admissible. The court properly refused to strike his testimony in its entirety. Furthermore, any possible prejudice was removed when the court, by consent of the appellees, instructed the jury to disregard all of Magness’ testimony with reference to the value he placed on the lands taken or any just compensation to the appellees.
Affirmed. | [
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Conley Byrd, Justice.
Donna Mingie, age 14 was found on the railroad tracks at 11:00 p.m. June 23, 1977, by a Missouri Pacific train crew. At the time she was nude except for a T-shirt. Blood was oozing from her vagina and her right arm had been severed by the freight train when it ran over her. Deputy Sheriff Carl Stobaugh stated that based upon his experience as a law enforcement officer, it was his opinion the young girl had been raped. Upon observing that Donna was still breathing, Deputy Stobaugh stayed with the girl until the ambulance arrived.
After the investigation was concluded, appellant Meredith Alvin Wiman, a neighbor of Donna Mingie and her sister’s boyfriend, was charged with rape and attempted murder. The jury found appellant guilty as charged and his punishment was fixed at life on the rape and 20 years on the attempted murder — said sentences to run consecutively. For reversal appellant makes the following contentions:
I. The trial court erred in ruling the confessions to be voluntarily given and admissible.
II. The court erred in allowing the articles of clothing to be introduced on the basis that proper consent was obtained.
III. The trial court erred in allowing photographs of the victim to be introduced into evidence.
IV. The jury finding of guilty on the issue of sanity was against the preponderance of the evidence.
V. The court erred in not directing a verdict in favor of the defendant on the charge of rape on the basis that the state failed to prove the elements of offense.
POINT I. On the motions to suppress the confessions the record contains the testimony of Finis Duvall, a criminal investigator with the Arkansas State Police; Carl Stobaugh, a Deputy Sheriff of Conway County; Ray Coffman, a Deputy Sheriff of Conway County, and appellant. This proof shows that appellant was picked up by Deputy Sheriffs Coffman and Epperson at his place of employment with Ward Body Works in Conway, Arkansas between 8:30 and 9:00 a.m. on the morning of June 24, 1977 and was transported to the sheriff’s office in Morrilton after a stop at the home of Donna Mingie in Plummerville. Appellant arrived at the sheriff’s office at 10:30 where he was given the Miranda warnings. When we view the totality of the circumstances, we cannot say that the trial court erred in ruling that the confessions were voluntary.
POINT II. On the motion to suppress appellant’s clothing obtained from the home of his parents, the record contains the testimony of Deputy Sheriff Ray Coffman, former Deputy Sheriff Bobby Epperson and Art Wiman, appellant’s father. The testimony of the officers is to the effect that they knocked on the door of the Wiman home to find out if appellant was home. Upon being informed that appellant was at work, they asked if the parents knew what type of clothes appellant had worn the night before. The officers stated that they were invited in to look for the clothes. The officers examined the clothes that were shown to them and made inquiry about appellant’s underwear but were unable to find them. On direct examination Art Wiman stated that the officers just came in looking for evidence. This evidence was toned down on cross-examination. Mr. Wiman admitted that Mrs. Wiman came to the head of the stairs with appellant’s shirt and that when he later found appellant’s underwear had stopped up the commode, he removed the commode to obtain the underwear and called the officers to come and get them. Conspicuously absent is the testimony of Mrs. Wiman.
Based upon the evidence in the record, we cannot say that the trial court erred in finding that appellant’s parents consented to the search.
Appellant does not demonstrate how he was prejudiced by the failure of the officers to make a list of the items seized in accordance with Rule 11.4 of the Rules of Criminal Procedure and in the absence of prejudice, such failure can amount to nothing more than harmless error. The record shows that appellant took the witness stand in his own defense but there is no denial of the identity of the clothes.
POINT III. Appellant, while conceding that the trial court has discretion in admitting photographs of the victim, contends that the photographs introduced fail to show any choke marks and were being introduced to influence the passions of the jury. Our observation of the photographs shown at page 629 of the record refutes appellant’s conten tion that the photographs do not show any choke marks. Consequently, this contention is without merit.
POINT IV. On the issue of insanity, appellant presented the testimony of Douglas Stephens, a clinical psychologist and Dr. Wendell Hall a practicing psychiatrist. The State presented the testimony of Albert Rosendale the chief of the Forensic Psychiatry Unit at the State Hospital. In addition the jury had the benefit of appellant’s testimony as to his conduct in washing and cleaning up immediately after the occurrence and before entering his home. It follows that there is substantial evidence in the record to support the jury’s finding of guilty notwithstanding appellant’s plea of not guilty by reason of insanity.
POINT V. In his confession, appellant admitted that he attempted to have sexual intercourse with Donna Mingie after he had rendered her unconscious and when he failed because he could not get an erection, he inserted his fingers in her vagina. In addition to the testimony of Carl Stobaugh as to the appearance of her body when she was found on the railroad track, the State presented Dr. David Dawson Irby who examined Donna at the Med Center. He found a five centimeter laceration of the posterior portion of the vagina, the borders of which were ragged as if torn. He stated that there was a penetration probably by a foreign object like a baseball bat.
Based upon the testimony in the record, we cannot say that there is no substantial evidence to support the jury’s finding that the penetration was for sexual gratification. Consequently, there is no merit to appellant’s contention that he was entitled to a directed verdict on the rape charge.
We have reviewed the record pursuant to Ark. Stat. Ann. § 43-2725 (Repl. 1977), and have found no errors prejudicial to appellant.
Affirmed. | [
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John I. Purtle, Justice.
On February 7, 1978, appellant was convicted of the crime of Possession of Marijuana with Intent to Deliver. This was a retrial after having a previous conviction reversed by this Court and remanded for a new trial. The information alleged appellant committed the offense sometime in October or November 1975 in Independence County Arkansas. Upon a finding of guilt the jury fixed appellant’s punishment at 5 years and a fine of SI0,000. From the conviction and sentence appellant brings this appeal.
THE TRIAL COURT ERRED IN ADMITTING TESTIMONY REGARDING A CRIMINAL OFFENSE FUAT ALLEGEDLY OCCURRED SEVERAL MONTHS PRIOR TO THE OFFENSE CHARGED IN THE CRIMINAL INFORMATION.
The state’s witnesses testified the alleged offense occurred sometime in December 1975 or January 1976. The information alleged the offense was committed in October or November of 1975. Witness Cox testified relative to a transaction wherein appellant sold him marijuana in June of 1974. 'I’his date was about 18 months prior to the offense for which appellant was being tried. Cox further stated he never did see appellant with marijuana but others had told him about it. The court sustained the objection to the hearsay but overruled the objection about the alleged offense in 1974 as going to show intent. The witness also testified he worked for appellant and was promised some marijuana for it and subsequently found marijuana in the glove compartment of his car. This incident apparently took place about July 1976. There were several other questions put to this witness relating to prior dealings of appellant in marijuana trade but no definite dates were given. The prosecuting attorney also asked the following questions:
Q. Do you recall telling me and these investigators in the Lawrence County Law Library in the Courthouse, Walnut Ridge, Arkansas, on August 16, 1976, that in the spring of that year Winfred Moser, when he would be drinking or would be high, that he would brag to you about how much money he was making selling marijuana, and that he would tell you that he wasn’t about to get caught because he was too smart for them?
A. I don’t remember that.
Q. And that the law wasn’t going to catch him because he was too sharp? Aren’t those the words you told me over there that day?
A. I don’t remember.
Although the court sustained appellant’s objection to the above two questions, the jury was not instructed regarding the testimony. Cox further testified he did other work for appellant and was paid in money and “pot”. The dates of these alleged crimes were never revealed.
The prosecutor also asked witness McGuire the following question:
Q. Miss McGuire, when, if ever, did Winfred Moser tell you where he was getting marijuana?
Objection to this question was sustained. However, the objection to the next question was overruled. The question was:
Q. Will you tell the jury whether or not Winfred Moser, while you were living here in Batesville, ever talked to you about going to Texas and getting a load of marijuana?
This witness further testified in response to the prosecutor’s question that at one time she saw appellant with several pounds of marijuana and that it was in another county and probably was in 1974 or 1975 at Norfolk, Arkansas. The prosecutor then asked the following question:
Q. Do you recall going on to testify that Winfred Moser brought marijuana here to the trailer four or five times?
This type of question was repeated to other witnesses and it would only lengthen the opinion to set them all out.
The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, are not admissible at the trial of the accused. U.S. v. Moody, 530 F. 2d 809 (8 Cir.1976); Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969); and Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). The purpose for exclusion of such evidence is to determine whether the accused committed the offense charged. This must be done to the satisfaction of the jury beyond a reasonable doubt. To allow evidence of other unrelated misconduct or crimes tends to allow the jury to be persuaded that if the accused is not guilty of the offense charged he ought to be convicted on account of the other activities. It is useless to state that such other evidence can only work to the prejudice of the accused at his present trial. When such other evidence is properly offered, it is only for the purpose of showing intent. In the present case proof of possession is presumed to be with intent. Therefore, these other alleged criminal offenses were not needed to show intent on the part of appellant. It is improper to permit evidence of other offenses if the prejudicial impact outweighs the probative value. Moody, supra.
We stated in Alford, supra:
“The issue of intent is theoretically present in every criminal case, and for that reason it is here that we are most apt to overlook the basic requirement of independent relevancy ...”
“What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis is permitted, the exclusionary rule has lost its meaning.”
Also, the state’s other proof was that appellant actually sold the marijuana to one Parnell. This testimony was offered into evidence and the actual delivery, if believed, further satisfied the intent problem if there were one. Thus the only-purpose of the other alleged offenses and activities on the part of appellee would only serve to prove to the jury that appellant was a bad man who had dealt in marijuana for a period of years. We stated in Rios v. State, 262 Ark. 407, 557 S.W. 2d 198 (1977):
“It was clearly error for the trial court to admit the evidence of other sales or delivery of drugs to simply prove Rios made a delivery on May the 4th. Therefore, we will reverse the judgment of the trial court and remand this case for new trial.”
See also Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971), wherein we stated proof of other crimes is never admitted when its only relevancy is to show that the accused is a man of bad character who is addicted to crime.
We are not unaware of the provisions of Ark. Stat. Ann. § 28-1001, Uniform Rules of Evidence, Rule 404(b) (Supp. 1977). The alleged other activities of appellant were never shown to have been a part of the present transaction nor were they related so closely in time to be of any value to the jury in determining intent in the instant case. Each case necessarily stands upon its own particular facts and circumstances. Therefore, the evidence of other crimes as presented in this case was unnecessary to prove intent and constituted reversible error.
In Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976), relied on by the state, we did not hold that a prior sale of a controlled substance by the defendant is always admissible to show intent when he is charged with possession of a controlled substance with intent to deliver. There we answered the arguments that were made, but we evidently considered that a true issue of fact was involved.
Here there is no such issue. The same section of the Controlled Substances Act makes it an offense to deliver a controlled substance and to possess it with intent to deliver. The punishment is the same. Ark. Stat. Ann. § 82-2617 (Supp. 1977). In the case at bar the state proved actual delivery, by-testimony that the witness Parnell bought 16 bags of marijuana from the defendant Moser for $160. There could be no question about the defendant’s intent, any more than there was in Alford, supra, a rape case cited in Cary, supra. In such a situation the state cannot create a fictitious issue of intent by-charging possession with intent to deliver and use that device as a basis for proving prior sales of a controlled substance by the accused.
THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT WHERE THE STATE FAILED TO CORROBORATE ACCOMPLICE TESTIMONY.
Appellant further argues a directed verdict should have been granted because all the evidence offered was by accomplices. We believe it was a question of fact, at least as to witness Van Drimmelen, as to whether he was an accomplice or not. We held in Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472 (1968), that whether a witness is an accomplice to a crime is, generally speaking, a question of fact for the jury. At least, if the facts are in dispute, it is a mixed question of law and fact. Therefore, we cannot say as a matter of law, as the facts were presented in this case, that Van Drimmelen was an accomplice. If he were not, then his testimony is somewhat corroborative to the others. One witness was charged as a result of the same facts and another granted immunity. These two were accomplices and a conviction on their testimony alone would have been error. Therefore, it was not error in refusing to direct a verdict in favor of appellant.
In view of our opinion on these points, we do not consider the other points as they are not likely to occur on retrial.
Reversed and remanded.
Fooeeman, J., concurs. | [
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Darrell Hickman, Justice.
This is the second appeal of this case. In an unpublished opinion we remanded this case to the Circuit Court of Pulaski County for retrial. We found that there was not substantial evidence to support a judgment in favor of the appellant, Howard’s Laundry and Cleaners. Upon remand, the circuit judge, sitting as a jury, found in favor of the appellee, James D. Brown, and entered judgment in the amount of $2,500.00.
Howard’s, on appeal, argues that the court committed two errors. First, that the court improperly found that the appellee had met the burden of proof, and, second, that the court improperly applied the measure of damages.
The appellee had suffered tornado damage to his house and while the house was being renovated and painted, his wife decided to have some drapes cleaned. She selected the appellant laundry because it advertised as a specialist in cleaning drapes.
The critical testimony regarding liability in this case is whether the drapes were wet or dry when Howard’s picked them up. All the evidence offered by the appellee was that the drapes were in good condition and dry when they were picked up. James D. Brown testified that the drapes suffered no water damage as a result of the tornado. His wife testified that she had made the drapes and that when they were picked up they were dry and in good condition. When they were returned they had shrunk. She complained to Howard’s. They picked them up again and tried to stretch them but the effort was unsuccessful. She testified that the drapes were worth $2,500.00 before they were damaged and worth nothing after they were damaged.
A home economist testified that the first time she saw the drapes they were in good condition but after they were cleaned they were puckered and short. She testified in her opinion the drapes would have been worth $2,200.00 to $2,-500.00, but would be worth nothing in their present condition. She said that good material would not shrink unless it was put in water that was too warm. She testified that the drape material was good and would cost between $10.00 and $15.00 a yard. A man who was painting the Brown house at the time they were picked up testified that the drapes were not wet when he helped Mrs. Brown take them down. An adjuster for the General Adjustment Bureau, who inspected the house after the tornado, said he found no water damage inside the house.
A vice-president of Howard’s testified as to the routine procedure in cleaning drapes and generally disclaimed responsibility for the shrinkage. A driver for Howard’s, who picked up the drapes, said they were wet when he got them. A Howard’s employee at the laundry said he received a large quantity of wet drapes that day but could not say specifically that Mrs. Brown’s drapes were among them. He explained Howard’s cleaning process and said a red ticket had been at tached to the drapes which indicated something was unusua! about them.
The parties do not disagree about the law, only its application. In our previous unpublished opinion in this case we quoted the law of bailments as it should be applied in this case as follows:
The rule in bailment cases is that the bailee may overcome the inference of negligence arising against it because of delivery in good condition and return in damaged condition by telling all that it knows of the casualty, and that it exercised ordinary care in all that it did with respect to the vessel. This burden, unlike that of persuasion which rested at all times on appellants, simply required appellee to go forward with evidence sufficient to show that it had no more knowledge of the cause of the casualty than was available to the appellants and that it exercised ordinary care. At this juncture the burden of going forward would shift back to appellants to ultimately persuade the trier of the facts of negligence on the part of appel-lee proximately causing the casualty. Sisung v. Tiger Pass Shipyard Company, 303 F. 2d 318, 321-322 (5th Cir.1962).
The appellant argues that Brown did not meet his burden of proof by showing that the drapes were delivered in good condition. The appellant, in effect, asks us to accept the testimony of his witness as opposed to those of the appellee in this regard. The court found for Brown and entered judgment in his behalf. Therefore, the only question before us, is, was there substantial evidence to support the judgment. There is an abundance of testimony that the drapes were delivered to Howard’s in good condition.
Next, the appellant argues that there was no evidence that Howard’s failed to exercise ordinary care. It was not disputed that if the drapes were wet it probably caused their shrinkage. Howard’s never contended that there was no shrinkage. It would be reasonable for the trial court to conclude that if the drapes were not wet when they were delivered and were in good condition, and were returned damaged after they were in the exclusive possession of Howard’s, then Howard’s would be liable. Cothren v. Kansas City Laundry Service Co., 242 S.W. 167 (Mo. Appl 1922). Certainly, Brown had offered sufficient evidence to shift the burden of proof, which the trial court had to find by virtue of its judgment.
The second argument of error is regarding the measure of damages and the parties are not in disagreement about the law, both referring to the case of Kimball v. Goodman, 117 Ark. 446, 174 S.W. 1185 (1915). In this case we said:
In determining the value of the goods destroyed, you should not consider their salable, market value as second hand clothing, but base your estimate on their original cost, the character of the materials, the extent to which they had been used and would probably be suitable for future use by the plaintiff, and all other circumstances which the proof, in your opinion, shows existed at the time they were injured and not their market value which the plaintiff is entitled to recover.
The appellant argues that because the drapes were four years old their value had decreased and the court was wrong in entering judgment for $2,500.00. Suffice it to say, Mrs. Brown testified the drapes were worth $2,500.00 at the time they were picked up and nothing upon their return. The home economist testified that the replacement cost of the drapes would be between $2,200.00 and $2,500.00. There was other testimony that the quality of the drapes was excellent; that they were made of good quality material and attractive. There is substantial evidence to support the judgment.
The appellant’s attorney argues that he never agreed to this case being decided by the trial judge’s merely reading the record from the first case and a deposition submitted later. This allegation of error was not properly preserved at the trial level and cannot be raised on appeal for the first time.
Affirmed.
We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ. | [
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Mehaeey, J.
Henry B. Walker was circuit clerk of Washington county during the year 1936, and J. H. Mell-roy and Fanny Walker were sureties on his official bond. Walker went out of office January 1, 1937, but had not made a final settlement with the county court for his 1936 accounts. The reason alleged by him for not having done so is that at that time there was a question as to what law governed and to what emolument and fees the clerk of Washington county was entitled. It is alleged that at that time there were suits pending in the chancery court of Washington county involving these questions. These suits had been filed at the request of the auditorial department of the state, and the litigation was being conducted by the prosecuting attorney.
An audit was made which showed that Walker had collected $10,770.02, for which he should account. No tice was served upon Walker and his bondsmen on March 17, 1938, notifying them that the balance due the comity and state and their agencies for the year 1936 was $5,-142.22, based on the local salary act of 1921. They were notified that unless this balance was paid within 15 days or canse shown why same should not be done, judgment would be entered against them for said sum and execution issued thereupon.
An audit was filed with the county clerk in March, 1938, showing that Walker, circuit clerk, was indebted to Washington county, state of Arkansas, and improvement districts in the total sum of $2,247.22. On' April 4, 1938, the court found that Walker and his sureties were indebted to the county, state and their agencies based on the local salary act of 1921, in a total sum of $5,142.22. That this balance was ascertained by the court before said notice was given; that more than 15 days had elapsed since that time and said sum had not been paid, and no reason given why judgment should not be entered, and judgment was entered accordingly.
It is alleged by the county judge that the audit referred to of $2,247.22 was based upon an opinion of the attorney general. Walker and sureties on his bond moved to dismiss, alleging that the county court had no jurisdiction. An appeal was prosecuted to the circuit court.
On August 29, 1938,1. R. Rothrock, as a citizen, taxpayer, and county judge, filed an intervention in which he stated that- he did not believe it was to the best interest of the county for the case to be settled and dismissed upon the payment of $900 in full settlement of the county’s share of receipts of the circuit clerk’s office for 1936. The intervention is alleged to have been filed for the reasoli that the county judge was advised that the prosecuting attorney had entered into an agreement with Walker and his sureties to settle his case for $900.
A motion to strike the intervention was filed by Walker and sustained by the court.
The following is the intervention filed by County Judge I. R. Rothrock:
“Comes I. R. Rothrock, as a citizen, taxpayer, and County Judge of Washington county, and intervenes and asks to be made a party to this case, and for canses, states:
‘ ‘ 1, That he is the duly elected, qualified and acting County Judge of Washington county, Arkansas, and. a citizen and taxpayer thereof.
“2. That he does not believe it is to the best interests of Washington county or the citizens thereof for this case to be settled and dismissed upon payment of Nine Hundred ($900) Dollars, in full settlement of the county’s share of receipts of the circuit clerk’s office for the year 1936 in the sum of $10,770.02. That the auditor’s report shows ah indebtedness to the county of $2,247.22, after allowing him $5,000 salary for himself and $2,500' for his deputies, and the judgment herein is for $5,142.22 based upon a salary of $3,420.
“Wherefore, intervener prays that he be made a party plaintiff to this cause and that same proceed to trial in his name as County Judge, a citizen and taxpayer of Washington County.”
Appellant states that the first question to be settled in this case involves the right of the prosecuting attorney to dismiss a case of this kind, a case in the circuit court, on appeal from the judgment of the county court rendered under authority of § 13946 of Pope’s Digest, which case was being conducted in the circuit court by special counsel employed by the county, the prosecuting attorney not being attorney of record for the county, and not having been requested by the county judge to represent the county; but on the contrary, having entered into an agreement to settle the case over the objection of the county judge.
Section 13946 of Pope’s Digest reads as follows:
“When any balance shall be found against any clerk, sheriff, collector, coroner, constable or other officer for moneys accruing to the county treasury, and the. same shall not be paid within the time prescribed by law, it shall be lawful for the county court, fifteen days’ notice being given to such delinquents and their securities, to render judgment against delinquents and their securities for the amount of all moneys ascertained to be due the county, and issue execution therefor.”
Section 10889 of Pope’s Digest reads as follows: “Each prosecuting’ attorney shall reside in the judicial circuit for which he may he elected, and shall commence and prosecute- actions, both civil and criminal, in which the state or any county in his circuit may he concerned.”
Section 10890 of Pope’s Digest provides that the prosecuting attorney shall defend all suits brought against the state or any county in his circuit, prosecute all forfeited recognizances accruing to the state in any county of his circuit.
Section 10891 provides that the prosecuting attorney shall give his opinion to any sheriff, constable, justice of the peace or county court, if required, on any question of law in any criminal case or other matter in which the state or county is concerned, pending before said officer.
It is' true, as argued by appellant, that the prosecuting attorney was not the attorney of record in the suit in the county court, but the evidence does not show that he had any notice of the action of the county court and no notice of the judgment against Walker and his sureties. The evidence does not show that the county court or county judg’e called on him for any advice or opinion. This case in the county court was begun by serving notice on Walker and his sureties, none of whom seems to have appeared in the county court, and judgment was entered by the county court against Walker and his bondsmen without notice, so far as the evidence shows, to the prosecuting attorney. Walker and the sureties on his bond appealed this case to the circuit court. In the meantime there were suits pending in the chancery court against Walker and the sureties on his bond, and when this case reached the circuit court the prosecuting attorney assumed charge and entered into an agreement to settle not only the case in the circuit court, but the cases in the chancery court.
Mr. Bryan Sims, chief accountant for the State Comptroller’s office in charge of the county audit division of the auditorial department of the state of Arkansas, agreed to and approved the agreement to settle made by the prosecuting attorney, and gave his reasons for approving and agreeing to the settlement.
We think the only question involved in this case is whether the prosecuting attorney had a right to settle the four cases, and we think it wholly immaterial as to what law is valid or whether any of them are repealed, because the prosecuting attorney doubtless took all these things into consideration in arriving at a settlement, and no doubt Mr. Sims did too. So that if the prosecuting attorney had authority to make the settlement, the county judge' or taxpayer could not interfere with or prevent making the settlement. If he did not have authority to make it, then of course it would make no difference what law was in effect at that time as to fees or salary.
In the case of Oats v. Smith, 194 Ark. 812, 109 S. W. 2d 955, the questions involved were practically the same as the ones here involved. The court there said that the appellant, in his capacity as county judge and as taxpayer, filed an intervention alleging that the proposed settlement by the prosecuting attorney was an improvident settlement and that after an investigation he had concluded that the county could recover a very much larger sum, and he asked the court to reject the settlement and proceed to trial, praying that the attorney employed by him be enrolled as attorney for the court to prosecute the suit to a conclusion. It was said there that the trial court heard the evidence of J. B. Sims and others over the objections of appellant, tending to show that the settlement was fair and equitable, and that in his opinion the settlement was to the best interest of the county. The trial court held that the prosecuting attorney had authority to compromise the casé, and this was approved by this court in the above case. The court discussed and construed act 146 of the acts of the General Assembly of 1933, and it would serve no useful purpose to discuss the act here.
It is true in this case that the suit against Walker and his sureties in the county court was not brought by the prosecuting attorney, but as we have already said, the evidence does not show that the prosecuting attorney’s attention was ever called to it until it reached the circuit court.
Appellant contends, however, that notwithstanding the provisions of the section with reference to the prosecuting attorney,- still where the county is interested, and when in the judgment of the county court the 'best interests of the county require it, it may employ special counsel to represent the county.
The first case to which attention is called is Oglesby v. Ft. Smith District, 119 Ark. 567, 179 S. W. 178, 1199. This was a suit where the special attorney employed by the county court presented a claim for legal services. His claim was disallowed, and on appeal to this court the judgment of the circuit court was affirmed, and while a majority of the judges voted to affirm it, they did so for different reasons. It is true that the opinion said in that case: “We, think the county court has power to employ additional counsel when in his judgment the interests of the county are of sufficient importance to demand it, or, in cases where the prosecuting attorney neglects or refuses to perform the duties imposed upon him by statute, or, where his other duties are of such character that he does not have time to properly represent .the county. We are of the- opinion, however, that, the power of the court to employ additional counsel does not give the right, under the guise of such employment, to take the case out of the hands of the prosecuting attorney and confide its management to other attorneys without consultation with the prosecuting attorney, or for the purpose of furthering the private interests of the county judge.”
There is no evidence in the instant case that the prosecuting attorney neglected or refused to perform his duty, and as stated in the case cited, the county court did not have the right to take the case out of the hands of the prosecuting attorney and confide its management to other attorneys.
The next case relied on by appellant is Leathem v. Jackson Comity, 122 Ark. 114, 182 S. W. 570, Ann. Cas. 1917D 438. This ease did not involve the employment of special counsel, but involved the validity of a contract made by the county court employing expert accountants.
The next ease relied on is Spence & Dudley v. Clay County, 122 Ark. 157, 182 S. W. 573. 'But the court said in that case: “The present case is manifestly one where thé prosecuting attorney could not represent the county and where the county court would be empowered to employ other counsel to represent the county and protect its interest. Greene and Olay counties are in the same judicial district and have the same prosecuting attorney; obviously the prosecuting attorney could not represent both counties and would not be required to make a choice of which county he would represent. Therefore the county court was authorized to employ other counsel to represent the county.”
Appellant next relies on the case of Buchanan v. Farmer, 122 Ark. 562, 184 S. W. 33. That case was where an act of the Legislature had been passed providing that two-thirds of the salaries of the judg’e and prosecuting attorney should be paid by Garland county. Farmer was employed by the county court to represent Garland county. The opinion states that the prosecuting attorney was not asked to represent Garland county and did not do so; but the court said that it might be fairly inferred that the prosecuting attorney had time to have brought this suit had he been requested by the county court to do so, and it also said that in a case where the prosecuting attorney was unable to attend to the business of the county, or in a case where the interests of the county in some particular suit is of such magnitude and importance as to demand of the county court the employment of special counsel, this court has recognized the right of the county court to do so. In this case the court held that he did not have the right to employ special counsel, and it reversed the case and dismissed the claim of appellee.
The next case relied on is Sumpter v. Buchanan, 128 Ark. 498, 194 S. W. 27, and the court again held that under the circumstances in that case the county court did not have the right to employ special counsel.
In the ease of Pulaski County v. Shofner, 192 Ark. 471, 92 S. W. 2d 217, there was involved the question of the county furnishing a library to the prosecuting attorney, and the prosecuting attorney was of course, directly interested in the case.
“As a judicial or quasi judicial officer a prosecuting attorney lias a certain discretion as to when, whom and against whom to proceed. Unless otherwise provided by law, all suits on behalf of the state should he brought hv the prosecuting attorney in the name of the state.” 18 C. J. 1316.
“It is the duty of the district attorney to appear, for any county in his district, in all matters in which it may be a party or interested, in the district court of his district. ... A willful neglect of this duty would be a misdemeanor, and render him liable to indictment, fine and imprisonment.” Clark & Grant v. Lyon County, 37 Iowa 469. In the same case, the court further said:
“The duty thus positively enjoined upon the district attorney must, of necessity, be accompanied with the right to do the thing required. If it is a positive duty, resting upon the district attorney to appear in the district court for the respective counties in his district, it is just as much a duty for the board of supervisors and the court to permit him to appear when he desires to do so. And a refusal to allow him to appear denies him a legal right.”
The settlement in this case seems to' have' been fair, and Mr. Sims, who was not interested, had made a thorough examination of the facts, and approved the settlement. The prosecuting attorney, who is a state officer, had made a thorough investigation, and in his judgment the settlement was fair.
Under the authority of Oats v. Smith, 194 Ark. 812, 109 S. W. 2d 955, the judgment of the circuit court is affirmed. | [
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Smith, J.
Mrs. Lizzie Garrett, hereinafter referred to as appellant, brought suit on May 5, 1937, against the Pyramid Life Insurance Company, hereinafter referred to as appellee, to collect a policy of insurance issued by appellee, under date of September 30, 1935, on the life of Tome J. Garrett, her son, in which she was named as beneficiary. The insured was killed September 12, 1936.
In response to a motion to make the complaint more definite and certain, the court, on September 24, 1937, sustained a motion to require appellant to state the date of premium payments, to whom paid, and to set out the receipts for the payments made. On April 15, 1938, appellant stated, in answer to this order of the court, that a premium payment, amounting to $22.82, was made by the insured, Tome J. Garrett, on the.day of October, 1935, and that the payment was made to appellee’s general agent, Kenneth S. L. Cooke, and a receipt given therefor. Appellee filed an answer, alleging that only one premium payment had been made, that being a payment for á quarter of the year, and that the policy had lapsed on account of nonpayment of other required premiums.
Practically no attempt was made to prove a premium payment in the amount and manner alleged except by the testimony of Ben Cockerill. • This witness testified that the insured met Cooke, the agent, in' Hot Springs, and paid Cooke the premium and' took a receipt therefor. When asked, “Did the receipt say it was for balance on premium, for annual, semi-annual or quarterly?”, he answered, “Annual,” and that Cooke said “it was the annual premium for the year.”
This testimony was in conflict with all the other testimony previously offered by appellee upon the question of the payment of premium, the other testimony being to the effect that the payments made were all quarterly premiums. This contradiction was qualified by Cock-erill’s answer “Yes” to the following question: “I believe you said this receipt stated ‘the remaining part of the annual premium’?”.
When the first testimony was offered conflicting with the allegations of the response to the motion to make definite and certain, the following colloquy occurred between .the court and counsel for appellant: “Court: I know. We had this matter up in my office sometime ago. Mr. Talley, in your original complaint, there was no allegation as to the payment of this premium, and the court was of the opinion that the defendant should have some notice of what your contention was in that respect and granted defendant’s motion to make the complaint more definite and certain, by setting up when these payments were made. Now, you did that by way of an amendment and response to the motion. Now, let me see your response. You allege in here that the premium was paid by the insured, Tom G-axrett, in the amount of $22.80, and that the premium was paid sometime in October. Now, your proof would be confined to that allegation. Mr. Talley: At this time I want to amend the complaint to include that the premiums were paid in the month of October, 1935, as set out in the amended complaint, as well as of July 30, or in July or August, 1936. It is a universal rule that you can amend. Court: It might be if it was the first time the matter was called to the attention of the attorneys, but we spent considerable time in trying to get the issues in this case in such condition that both parties could be ready for trial today. Now, when yon come up and allege a different method of payment, then the defendant is not put upon notice. What is he expected to meet by way of proof 1”
However, tlie court permitted testimony to be offered that the premiums had 'been paid quarterly, and upon that issue the following testimony was heard.
Edward W. Garrett, a brother of the insured and a son of the beneficiary,’ testified that he knew that his mother paid two premiums. He did not recollect whether they were quarterly premiums, but it “ seemed to me like the first one was two dollars and something,” and he did not recollect the amount of the second payment, but he had seen four different receipts. He identified a receipt offered in evidence dated October 10, 1935, for $3. Another receipt was offered in evidence elated February 11,1936, for $2. And, when asked, “Did she (Mrs. Garrett) make any payments other than these, or was that the extent of her payments?” answered, “I don’t think she did.” He was further interrogated as follows: “Q. Did you state that later, other payments were made to Mr. Cook? A. Yes. Q. Where was that? A. I don’t exactly know, but I think it was made in the CC'C camp. Q. How do you know?- Were you there at the time? A. No. Q. Then you couldn’t testify to that? A. He came home with a receipt in his pocket. Q. Do you remember the dates on the receipts that you saw after these two — the dates of them? A. No. My mother took care of all that and I never paid much attention to it. Q. What was the amount of the receipts ? A. Those two? Q. No, the other one you saw; what was the amount of it? A. I think it was $6. Q. You stated one of these subsequent receipts was for $6. What were the others -for? You stated you saw two other receipts, didn’t you? A. No, Í just only saw one. Q. About when was the date you saw this last receipt that was paid; and for what period was that? A. The best I recollect, it was in July, but I am not sure about it. Q. Of what year? A. 1935. Q. You said 1935. This policy was issued in 1935. A. 1936, it was. Q. But you do know this: you know that premium was paid in July, 1936 — that $6 premium, do you not? A. Yes, I saw that; he had it in his pocket. ’ ’ When asked if he saw the date when the receipt was issued which he saw in July, the witness answered: “I don’t recollect just exactly.”
• The witness Cockerill, above referred to, identified the time when he saw the receipt which he mentioned as being during the time he and the deceased were working in the HOC camp in July, 1935. . In answer to repeated questions he was very definite that the time was in July, 1935, in fact, July 30, 1935. In a final attempt to have the witness place the date a year later, he was asked, on his redirect examination: “Q. Was it 1935 or 1936? Refresh your memory by something and give the date. A. It was 1935 when we were in camp. Q. You went into the 'COC camp in 1935? A. Yes.” The inquiry was not pursued further, and the witness was excused.
The widow of deceased testified that her husband paid as much as $5, and she didn’t know how much more. Her husband went to the courthouse to make the payment to the agent, and she went with him, but did not go in the courthouse and did not see the payment made, but her husband had a receipt for $5, which he placed in his pocketbook, and after his death she kept it with her things, and it was still in the pocketbook the last timé she saw it, but does not know where it now is, and she did not know who had signed the receipt and was not sure as to the amount receipted for.
The guardian of the insured’s children testified that he took charge of deceased’s effects and his papers, which were in a box, and “there was one receipt, I guess you would call it, for the money he had paid in, was all I know anything about.” He testified that the receipt he saw in the box ‘ ‘ was something similar to the receipt here. ”
The beneficiary testified that Avhen the application for the policy was made she paid ‘ ‘ a couple of dollars, ’ ’ and that, altogether, she made ‘‘two or three payments.” When the policy was delivered she made the payment evidenced by the receipt dated October 10, 1935, above referred to, and that a receipt was given her for each payment made, and that when she made the last payment to 'Cooke she was told by him that this was the last pay ment she would have to make and the policy was in full force. The answer to this leading question was the word “Yes,” but it does not state, for what period of time the policy would be in full force. 'She was then interrogated as follows: “ Q. Did he tell you that you would have to pay any more premiums on that policy-year? A. A year? Q. On that policy for a year? A. No, sir. Q. He said you wouldn’t have to pay any more premium? A. Yes. Q. For the policy-year ? A. I don’t remember. You see, I didn’t make any more payments, and it stopped at that. Q. Did he tell you it wouldn’t be necessary to make any more payments? A. I don’t know. Q. In other words, did he say the policy was paid up? A. Yes, he said that.”
This witness testified that the first payment- was made by note for the premium, and after a number of questions by her counsel, all more or less leading, in regard to this note, which elicited no definite information, the court said: “Q. Mrs. Qarrett, if you remember the amount of the note, state it; but if you don’t, just state you don’t remember it. A. I don’t remember the amount of the note.” (Appellant’s counsel): “Q. You don’t know whether it amounted to $22.82 or $6.05, or what it was ? A. No. ”
Upon the cross-examination of this witness she admitted that Cooke, appellee’s agent, accompanied by R. W. Hendricks, came to her house to collect a premium, and she was asked if she told Cooke that her son, the- insured, would not permit her to pay any more on the premium, and that she was not going to pay any additional premium, and that he (Cooke) need not come back any more. She answered: “I just told him I didn’t want to pay it any more, but I didn’t tell him any reasons.”
Hendricks, who was called as a witness for appellant, testifying in regard to this visit, stated: “Mr. Cooke went up there and talked with her there and tried to get her to keep this policy on; and she wouldn’t do it,” and that appellant told Cooke that “her son objected to it, and she couldn’t carry the policy .any longer, that he wanted to build a new house.”
Cooke was called as a witness for appellant, and lie stated that lie bad severed Ms connection with appellee more than a year before, and that he wrote the policy, which carried an annual premium of $22.82, or - $6.05 quarterly, that he made four visits to collect this premium, and that on one visit he was paid $3, which completed the payment of the premium for the first quarter, and that he was never able to collect moré, and only $6.05 was ever paid by anyone on the premium.
Appellant was not recalled to deny the testimony of Hendricks.
We have stated the substance of the material testimony tending to show that premiums were paid which would have continued the policy in force until the date of the insured’s death, and we think the trial court was fully justified in concluding that there was no substantial testimony to sustain that contention.
It is insisted, however, that appellee waived nonpayment by sending appellant a “Notice of Payment Due” reading as follows:
“Notice of Payment Due
“Pyramid Life Insurance 'Company of Little Rock, Arkansas
“Home Office -Statistical Information
“KS: Cooke Ark.-S. A.
“No. 20306 Amt. 1,200 20 Pay Due on 30 Day of Sept. 1936.
“Notice of the Annual Premium — 22.82 Life on the life of Mr. Tome J. Garrett % Mrs. Lizzie Garrett, Mt. Valley Route, Hot Springs, Arkansas. 22.80 Total.
“Please return this notice with your remittance. Notify the company of any change of address.
“Please remit direct to home office or branch office.
“Make all remittances payable to the company.”
This contention may 'be disposed of by saying that the notice was received September 17, and the insured had died on the 12th, five days prior to its receipt. The complaint did not allege there had been a waiver, and the motion for a new trial is silent upon this question; indeed, the notice copied above does not appear to have been introduced to prove a waiver of the payment of premium but, rather, to show that the premium had in fact been paid.
In the case of Patterson v. Equitable Life Assurance Society, 112 Ark. 171, 165 S. W. 454, it was said: “Furthermore, the death of Patterson fixed the rights of the parties to the insurance contract as they existed at that time, and any letter written by the appellee after Patterson’s death, and without knowledge thereof, and addressed to him as though he were living, could not be considered as a waiver of appellee’s rights under the insurance contract as they existed at the time of Patterson’s death. At the time of the death of the insured, by reason of the nonpayment of the premium, the policy had lapsed, and he had been advised thereof, and only certain rights which involved affirmative action on his part remained to him, and of which he had not availed himself, and his death left only the right, by the very terms of the contract, to a paid-up policy of insurance for $900. The appellee, at the time of writing the letters, being ignorant of the death of Patterson, could not waive its-rights fixed by his death, even if the letters would have otherwise constituted a waiver. There can be no such thing as a waiver of rights without knowledge of the facts upon which such rights are based.” The case of American Life Ass’n v. Vaden, 164 Ark. 75, 261 S. W. 320, is to the same effect.
We conclude, therefore, that the trial court com.mitted no error in directing the jury to return a verdict for appellee, and the .judgment is affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Fireman’s Fund Insurance Company from an adverse decision of the Pulaski County Circuit Court, Second Division,. in a suit by Fort Smith Pizza Company on an insurance policy.
The appellant insurance company entered into a contract with the appellee pizza company, agreeing to insure the appellee with a coverage of $2,500 against loss of money and securities by the actual destruction, disappearance or wrongful abstraction thereof within the premises or within any banking premises or similar recognized places of safe deposit.
The appellee alleged in its complaint:
“That from July 14, 1967, to July 20, 1967, inclusive, during which time said insurance policy was in full force and effect, plaintiff suffered a loss of money and securities in the amount of $1,757.57 (being $388.07 on 7/14/67; $395.91 on 7/15/67; $145.52 on 7/16/67; $191.68 on 7/17/67; $211.60 on 7/18/67; $181.14 on 7/19/67 and $243.65 on 7/20/67) by actual destruction, disappearance or wrongful abstraction thereof for which loss defendant is liable to plaintiff under the provisions and within the meaning of the aforementioned insurance policy.”
A jury was waived and the case was tried before the trial judge sitting as a jury. Judgment was rendered for the full amount sued for, together with statutory penalty and attorney’s fee, and on appeal to this court the appellant relies upon the following point for reversal:
“The trial court should have found for the defendant, as a matter of law. ’ ’
We agree with the appellant. The appellee attempted to prove that the separate deposits listed in its complaint, totaling $1,757.57, mysteriously disappeared from the night depository of the Merchants National Bank of Fort Smith after being deposited there. We find uo substantial evidence in the record before us that any part of said amount ever reached the bank.
The record reflects that- the usual procedure followed al the three pizza parlor locations was as follows: At each of the pizza parlors six hundred dollars, one hundred of which was in change, was kept on the premises at all times for operating expenses. At the close of each business day the local manager would count the daily receipts, put bade the $600 for the next day’s operation, and make out bank deposit slips in triplicate for the balance of the receipts to be deposited in the bank. A daily report form would then be made out showing the amount and kind of merchandise sold, the amount rece wed in each category, the total receipts, and the total cash to bank. A copy of this report, together with a copy of the bank deposit slip was mailed each day to the president of the appellee in Little Rock. The manager of the particular parlor would then make the actual deposits in the bank. More than one day’s receipts would sometimes be deposited at the same time. The usual procedure was to make the bank deposits at odd times for security reasons and usually by physical deposit in the drive-in night depository. Under this procedure no receipt was obtained from the bank when the deposit was made, but a receipted copy of the deposit slip would be returned by the bank when the deposit was credited to the account. These receipted deposit slips would bear the date they were prepared, and the date the amount was credited to the account but they would not bear the date they were placed in the night depository. Only ilie retained copy of the deposit slip, made out by the local manager, was mailed to the Little Rock office with the daily report.
Mr. George Batchelor, a certified public accountant, testified that he was doing the accounting work for the appellee during the time of the alleged loss. He identified daily reports with copy of deposit slips attached as having been sent in by the manager of the Fort Smith Parlor and testified that all the managers followed the same procedure. Mr. Batchelor testified that the amount's shown on the reports and copy of deposit slips made out and sent in by Mr. Blaloch, the local manager at Fort Smith, were never credited by the bank to appellee’s account.
Mr. John Bauman testified that lie was general manager of three Shakey’s Pizza Parlors owned by Mr. Murry, including’ the one at Fort Smith. He testified that a Mr. Blaloch was the local manager at Fort Smith and that he went to Foil Smith on Saturday, July 22 and discharged Mr. Blaloch. He testified that he went with Mr. Blaloch to the bank and they deposited the previous day’s receipts in the night depository; that the deposit slips for this deposit were dated July 21, and that this deposit was made on the 22nd and was credited to the account of the appellee the following Monday, Julv 24.
Mr. Ike Murry, majority stockholder and president of the appellee, testified, in part, as follows:
“Q. And is the same form of those daily reports that are introduced as Exhibits 8 through 14 required daily from each of your operations'?
A. That’s right. Same form.
Q. And including your operation there at Fort Smith?
A. Right.
Q. Nor only during this period but during each day’s operation?
A. That’s right. Each day we pick up a daily report from the three Fort Smith. I mean the three pizza parlors and attach to each one of them a deposit slip which has been executed by the manager indicating the money has been sent to the bank or that it will be sent to the bank.
Q. And are those daily reports in your regular course of business up there at Fort Smith?
A. That’s right.
Q. And the information shown thereon, quote— total casli to bank — end quote, is shown on each one of those daily reports?
A. That’s right.
Q. And I believe that’s required of your manager of each one of your operations?
A. That’s right.” (Emphasis supplied.)
On cross-examination Mr. Murry testified that the local manager of the business in Fort Smith would mail the daily reports, together with copy of deposit slip to him in Little Nook. lie also testified as to reasons for discharging the Fort Smith manager, but further recitation of the testimony would add nothing but volume to this opinion.
The only person who knew what went with the money indicated on the daily reports and copies of the deposit slips made out and mailed from Fort Smith to Little Nock by Mr. Blaloch, was Mr. Blaloch himself. He was the one who made out the reports indicating that the money had been or would be deposited in the bank and he was the one charged with the responsibility of depositing the money in the bank. Mr. Blaloch had been discharged and had gone to Tennessee before it was ever discovered that the amounts he reported had been or would be deposited in the bank were never credited to the appellee’s account.
The appellee relied entirely on Ark. Stat. Ann. §. 28-928 (Repl. 1962) which provides as follows:
“In any court of record of the State, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or rec ord of any act, transaction, occurrence, or event shall he admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. ’ ’
Mr. Blaloch did not testify in this case and his daily reports made out and mailed to his superiors in the regular course of business indicating the amount of money he collected and had or would deposit in the bank, certainly are no evidence at all that he ever reached the bank with the money he indicated he had or would deposit. It is clear from the evidence, including the daily records and deposit slips, that the daily records or reports were made out at the end of each day’s business reflected therein. The deposit slips were dated the same day the records were dated and obviously the deposit slips were made out before the deposit was actually made. The most these business records of the appellee could show is the amount of money on hand which the appellee’s manager indicated that he would deposit in the bank.
It appearing from the record that the facts in this case might be more fully developed on retrial, the judgment of the trial court is reversed and this cause remanded for that purpose.
Byrd and Holt, JJ., dissent. | [
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Carretón Harris, Chief Justice.
This is the second appeal of this case. In Mallett, et al v. Brannon, et al, 243 Ark. 898, 423 S.W. 2d 880, a judgment for appellee was reversed when this court held that the trial court had abused its discretion in denying' appellants’ motion to require a further medical examination of appellee Sara Brannon, appellee’s doctor having failed to mention in his report findings relative to nerve damage. On this last trial, the jury again found for appellee, and fixed her damages at $38,000.00. From the judgment so entered, Joe Mallett, a driver for Save-A-Stop, Inc., together with said employer, brings this appeal.
On the first appeal, the question of appellants’ liability for alleged negligence was at issue, but that point is not raised in the present instance. Rather, it is assorted that the trial court abused its discretion by not allowing a continuance to permit appellants to take the discovery deposition of Dr. Joe Lester; that there was no substantial evidence of permanent injury, and the court erred in submitting this issue to the jury; and that the judgment was excessive.
Following the reversal, appellants took the evidence deposition of Dr. William H. Jordan, a neurologist of Little Rock, and the evidence deposition of Dr. John H. Adametz, a neurosurgeon of Little Rock; thereafter, Mrs. Brannon was, at the request of appellants, examined b}^ Dr. Larry Mahon, an orthopedic surgeon of Little Rock, and his evidence deposition was taken. This was done on May 21, 1968. Following the taking of this deposition, counsel for appellee, who stated that he did not receive a copy of the deposition until May 25, felt that he also wanted Mrs. Brannon examined by an orthopedic surgeon, and arrang-ements were made -to have this examination made by Dr. Joe K. Lester, an orthopedic surgeon of North Little Rock. This examination was conducted on Tuesday, May 28, and on Wednesday, the 29th, appellee’s counsel notified appellants’ counsel that Dr. Lester had examined Mrs. Brannon, and that a copy of the report of the examination would l)e sent. On Friday, May 31, a copy of Dr. Lester’s report was delivered to a Morrilton attorney, associated with appellants’ chief counsel, and the latter received a copy of the report on Saturday, June 1. The trial had boon previously set for Monday, June 3, and appellants’ attorney filed a motion asking that the case be continued until lie had the opportunity to take the discovery deposition of Dr. Lester. In his report, Dr. Lester said:
“X-rays were taken of the cervical spine including -AP, lateral, oblique and open mouth projections. Films were also obtained of the lumbar spine. Oblique films reveal some evidence of foraminal encroachment on the left between 05 and 06 and to a lesser degree between C4 and 05. The foraminal encroachment is associated with the fifth cervical vertebra. Oblique films reveal straightening of the cervical lordotic curve. There is definite straightening and a tendency toward reversal of the normal cervical lordotic curve in the neutral lateral view between 04 and 05.”
Appellant says that this condition did not appear on the x-rays taken by his expert witnesses, and he desired the opportunity to interrogate Dr. Lester by discovery deposition, and to have the x-rays examined by an expert x-ray technician. This motion was denied, and appellants contend that this action on the part of the com! was an abuse of discretion. We do not agree, for it is our view that sufficient expert opinion had al ready been obtained from other sources, and there was no urgent need that this discovery deposition be taken.
Between the first and second trials, appellee had presented herself for examination, at the request of appellants, to Dr. Jordan, neurologist, and Dr. Mahon, an orthopedic suregon. In addition, at the trial itself, appellants offered the deposition of Dr. Adametz, the neurosurgeon, who had examined Mrs. Brannon at the request of appellee’s family physician, Dr. Hickey. All three of these doctors testified that they could find nothing in their examination to account for appellee’s continued alleged disability. Dr. Adametz stated:
‘ ‘ I was unable to find anything on her detailed neurological examination to account for this patient’s continued alleged disability and I feel that she is definitely exaggerating her symptomatology during the course of my examination. I was convinced that she was not being completely honest with me, especially concerning her sensory examination, but was obviously exaggerating this. I cannot help to feel that she was magnifying all of her symptoms and definitety is alleging disability for which I could find no actual objective clinical neurological elements. ’ ’
Dr. Jordan found no sign of permanent injury in the neurological area, though he did state that her complaints were consistent with a cervical spine injury.
Dr. Mahon, the orthopedic surgeon, testified by deposition, and mentioned in detail his findings. X-rays were taken by the doctor of the cervical spine in the AP, lateral, oblique, and flexion-extension views, and all were within normal limits. He stated that her complaints were exaggerated, and he could find no evidence of permanent injury. Though he said that he could not rule out the possibility of disk protrusion, he found no evidence of it. We will not set out the testimony of these three experts in full, since there is no occasion to do so, but each supports the conclusion reached with pertinent facts, and it is thus clear that appellant was able to present substantial testimony that Mrs. Brannon’s complaints were not attributable to, nor the result of, negligence of appellants.
The point is that appellants were not caught, so to speak, “empty handed,” i.e., they presented evidence contrary to Lester’s findings. Our statutes relating to discovery depositions, and physical and mental examinations, Ark. Stat. Ann. §§ 28-348 and 28-357 (Repl. 1962), respectively, are taken practically verbatim from Rules 26 and 35 of the Federal Rules of Civil Procedure. This question is discussed in 23 Am. Jur. 2d, § 199, p. 556. After pointing out that, in federal cases, pretrial deposition discovery of the opposing party’s expert opinion may, in a proper case, be authorized, it is then stated:
“* * * Such discovery ordinarily will not be permitted ¡except in instances of extreme need thereof by the examining party and inability on his part to obtain expert opinion on the same matter from other sources. Such a pretrial discovery, it is indicated, will not be permitted except under special circumstances deemed to constitute good cause for allowing it, and a similar view has been taken in cases involving state counterparts to the federal rules.”
Similar language is used in 86 A.L.R. 2d 145. In United Airlines, Inc. v. United States, 26 F.R.D. 213 (1960), the court emphasized the underlying reason for the rule:
“Discovery of opinions or conclusions, howermr, furthers these goals in only a tangential manner, for while a witness to a physical occurrence is relatively unique, and, therefore, relatively indispensable, opinions are obtainable from many sources. This leads to the notion that since the party seeking discovery can obtain opinions without difficulty elsewhere, there is usually little need for him to seek them from experts associated with his adversary.”
Appellants’ contention is without merit.
It is next urged that there was no substantial evidence of permanent injury to justify submitting this issue to the jury. We are unable to agree with this assertion. • Even though we might feel that the strongest evidence on this issue was offered by appellants, this fact, of course, would not justify a reversal, for we are only permitted under the law to determine whether there was any substantial evidence to support the view of the prevailing litigant. In most instances there is substantial evidence on both sides, and we consider that to be likewise true in the case before us.
Briefly, Dr. Thomas TI. Hickey of Morrilton, Mrs. Brannon’s doctor for a long number of years, testified that lie found a straightening of the normal curve of the cervical spine, which usually indicates injury to that portion of the spine, and he was of the opinion that she had received a severe sprain of the cervical and dorsal spine. He testified that he found severe contusions to the anterior chest wall, and multiple contusions and abrasions. The doctor testified that she still had pain and soreness in her neck, and pain, soreness, and swelling in the left upper extremity; also some flebitis in the left upper extremity, which the witness stated could be caused by trauma. Dr. Hickey said that he had been her physician for many years, and she had never made complaints of pain in the areas examined, prior to the accident. It was his view that soft tissue damage was causing the pain radiating from the neck into the left .shoulder, the pain in the back of the neck, and the feeling of numbness and weakness in the left arm, about which Mrs. Brannon continued to complain. He said that this type of injury was very painful, and that usually arthritis follows. It was his view that appellee would continue to have pain and suffering, and her injury would be permanent. The doctor testified to a 35% permanent partial disability as a result of injuries received when her automobile was struck from the rear by the tractor trailer.
Dr. Lester found a 3.00 restriction in the left lateral motion of the neck, and some curvature present in the low back, with slight accentuation of the lumbosacral angle. Further, there was a slight loss of sensation on the outside of the left foot, being the area supplied by the sural nerve, which emerges from the last disk, this being (according to the witness) evidence of injury to the fifth lumbar vertebra. The doctor said that the x-rays reflected she had a straightening and a tendency toward reversal of the normal cervical curve, and on the oldique view, there was evidence of change on the left, which was compatible with the type of injury that she sustained. He found a roughness in the area above and below the fourth vertebra on the left, and there was reflected some small early bone formation compatible with injuries occurring from this kind of accident. He was of the opinion that Mrs. Brannon would need to continue using traction at home on her neck, and back exercises, and he said that she probably has some permanent disability. The doctor was reluctant to set a degree of permanent disability after one examination, but it was his view that findings reflected enough objective x-ray evidence to support Dr. Hickey’s opinion.
Of course, though Dr. Hickey was not a specialist, there is significance in the fact that this doctor had known appellee for years, and had treated her prior to the injury. We conclude that there was sufficient evi dence of permanent injury to justify the submission of this issue to the jury.
Finally, it is argued that the verdict is excessive.
Mrs. Brannon was 32 years of age at the time of this trial, and had a life expectancy of 44% years. While she and her husband lived in California for a period of six years, she managed a trailer park, and on moving to (Jonway County, worked part time at a drug store. She said that she had not worked for about four years, because of her school age children. Appellee related her difficulties following the accident, stating that she does not have her former ability to work in her garden, cannot perform many household functions, cannot drive an automobile for more than 30 minutes at a time, and has difficulty in holding objects in her left hand. She complained of severe headaches, which she said still continued, though not as bad as formerly, and she said that the pain in her neck, though still present, seems to be better. Plowever, Mrs. Brannon stated that the pain in her low back and left leg was worse than it was a year earlier, and that her left arm tingles as though asleep; the arm hurts from her elbow to the shoulder when she is working, and frequently swells and stays sore for two or three days. According to the witness, she had difficulty in sleeping or resting for a long period of time. Of course, appellee’s evidence shows that she has a 15% permanent partial disability, and testimony of her doctors was to the effect that she will continue to suffer pain. T)r. Hickey was also of the view that she will develop arthritis. According to the evidence, she had suffered pain and mental anguish for close to 27 months before trial, and of course, future pain and anguish is also compensable. Though she has not been employed for four years, she testified that it had been her intent to again seek employment when her children were older. Because of her injuries, the positions that she could hold would seem to be somewhat limited. The question of determining whether a given award for damages is ex cessive is one of tlie most difficult questions that confronts an appellate court, and it is only where there is no evidence on which the amount allowed could properly have been awarded that there is justification for reducing a judgment. While the judgment herein rendered is rather generous, we are not able to say, under all the facts and circumstances, that it is excessive.
Affirmed.
Actually, the suit was filed by Mrs. Brannon and her husband, but Mr. Brannon received a judgment for $2,000.00 at the first trial, which was paid, and he is no longer a party to the suit. Accordingly, there is only one appellee, Mrs. Brannon, involved in this litigation at the present time.
On trial, Dr. Lester testified that Mrs. Brannon sustained an injury which occurs in rear end automobile accidents called a hyperextension flexion injury. His testimony will be subsequently discussed in more detail.
Prior to the first trial, Mrs. Brannon had been examined by Dr. J. J. Magie, a Morrilton physician, and it was his findings that prompted this court to hold that appellant was entitled to have appellee examined by a neurologist. For a full summary of Dr. Magie’s findings, see Mallett v. Brannon, supra.
The doctor’s actual examination, however, was limited to determination of whether there was any nerve damage. | [
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PER CURIAM
Upon motion of appellants, this case is remanded to the Chancery Court of Pulaski County and that court is reinvested with jurisdiction for the sole purpose of determining the effect of Resolution No. 1774, adopted by the City Council of the City of North Little Rock, Arkansas, upon its decree from which this appeal is taken.
The Chief Justice, George Rose Smith and Byrd, JJ., did not participate in the consideration of this motion. Special Justice William S. Arnold agrees. | [
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John A. Fogleman, Justice.
In its petition for rehearing the state admits that the evidence in this case was insufficient to support a conviction. The basis of this confession is the fact that under the evidence, appellant was not shown to have operated as a broker-dealer in violation of Ark. Stat. Ann. § 67-1237. There is no evidence that appellant acted or purported to act as a broker-dealer in this isolated transaction. A broker-dealer is one engaged in the business of effecting transactions in securities, according to the definition in Ark. Stat. Ann. $ 67-1247.
For the same reason appellant could not be guilty of the sale of an unregistered security in violation of Ark. Stat. Ann. ^ 67-1241. Regardless of whether the sale of an interest in an oil and gas lease by the owner constitutes a security in the sense of that section and the definition given in § 67-1247(1), this sale is exempted Prom the operation of the act by § 67-1248(b) (1), as an isolated non-issuer transaction. With respect to certificates of interest or participation in oil, gas, or mining titles or leases, or in payments out of production out of such titles or leases, there is not considered to be any issuer. Section 67-1247(g).
Thus regardless of whether an oil and gas lease is a security under the Arkansas Securities Act, the conviction in this case must be reversed and the charge dismissed.
The opinion delivered February 17, 1969, in this case is withdrawn and this opinion substituted. The judgment is reversed and the cause dismissed. | [
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Frank Holt, Justice.
This appeal results from the court granting appellee’s motion for summary judgment. The sole issue is whether appellant’s decedent, John Saunders, was in “good health” at the time of the issuance and delivery of the credit life insurance policy.
Saunders made written application on December 17, 1974, to appellee for a $10,000 credit life insurance policy. A physical examination was required and on December 31, 1974, Dr. Charles Avery submitted his favorable examination report to appellee. On January 9, 1975, appellee issued its insurance policy on Saunders. The letter of transmittal, attached as part of the policy, bore the date of January 10, 1975. On January 9, at 6:15 a.m., Saunders was admitted to a local hospital because of an enlarged abdominal mass and abdominal pain which became apparent about one week prior to his admission. The provisional diagnosis was hepatomegia. Saunders remained in the local hospital until January 14, 1975, when he was transferred to a Texarkana hospital where he died on June 9, 1975, of generalized car-cinomatosis as a consequence of carcinoma of the liver. Appellee denied appellant’s claim for the proceeds of the policy. Appellant then brought this action.
The policy of insurance issued by appellee to John Saunders included the following provision:
I understand and agree that there shall be no insurance in force until the policy hereby applied for is issued and delivered to me during my lifetime and good health and the first premium is paid by me, in which event the insurance shall be deemed effective as of the date of issue stated in the policy.
Appellee asserted, in its motion for summary judgment, that under the undisputed facts, Saunders could not have received the policy “during his lifetime and while in good health: that this language and requirement was a condition precedent to the policy becoming effective and, therefore, the said policy never became a binding and enforceable contract of insurance.” It attached, as exhibits to the motion, copies of the application for insurance containing the recited provision, the admission summary sheet from the local hospital reflecting Saunders’ admission and provisional diagnosis, the personal history and physical examination sheet of Saunders taken from the hospital record, and Saunders’ death certificate.
Appellant argues that when a condition precedent, as here, involved a requirement that the insured be in good health at the time of issuance and delivery of the policy, the determination of his health at that time should be a fact question for the jury. Therefore, summary judgment is precluded. Appellant acknowledges that a summary judgment is proper where it is clear that there is no genuine issue of fact to be litigated. Purser v. Corpus Christi State National Bank, 258 Ark. 54, 532 S.W. 2d 187 (1975), A summary judgment is proper when the moving party is entitled to a judgment as a matter of law, there is no issue as to any material fact and, even though the facts are undisputed, reasonable men could draw only one conclusion from them. Arnold v. All American Assurance Co., 255 Ark. 275, 499 S.W. 2d 861 (1973).
The facts in the case at bar are undisputed. Appellee’s prospective insured entered a hospital with a fatal illness prior to the delivery of the policy. At the time he entered the hospital, he had suffered for at least a week from abdominal pains and had noticed a swelling of his abdomen. Upon admission he was provisionally diagnosed as having a possible carcinoma of the liver with hepatomegaly. He died less than six months later of generalized carcinomatosis due to carcinoma of the liver. We cannot say that reasonable men could draw a conclusion from this set of facts other than Saunders was not in good health at the time of issuance and delivery of the policy. The motion for summary judgment was, therefore, properly granted.
Affirmed.
We agree: Harris, C.J., and Hickman and Purtle, JJ. | [
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Ernie E. Wright, Chief Judge.
This was an appeal to the Arkansas Supreme Court and has been assigned to the Court of Appeals for disposition pursuant to Rule 29(3) of the Arkansas Supreme Court.
The appellant was convicted by a jury in the Pulaski County Circuit Court, First Division, of the crime of aggravated robbery under Ark. Stat. Ann. §41-2102 and of having been convicted of three prior felony offenses under Ark. Stat. Ann. §41-1001. He was tried jointly with a Co-defendant, Jerry Lee Bradden, who was also convicted and is not a party to this appeal.
Appellant contends the trial court erred in admitting into evidence a confession of the Co-defendant, Bradden, without entirely deleting inculpating references to the involvement of another person. The confession, as admitted with addictions, did not specifically name appellant. Appellant also contends that the court erred in refusing to grant appellant’s motion for mistrial because of prejudicial closing argument of the prosecuting attorney. The prosecuting attorney made the following remarks in his closing argument to the jury, references to appellant by name to be deleted from the confession so that reference to the appellant was simply to “the other man”, and the confession, as so revised, was read in evidence before the jury. After the above argument appellant moved for mistrial.
“Now, that’s the State’s case along with the statement of Jerry Braden (sic), which was that he was riding around with some other fellows in the car, that one of them knew a place where they could rob, a chicken place, that one of the men had a black .22 pistol and that he (Bradden) didn’t have a gun. ‘Me and him got out and went inside. I ordered some chicken. He went in the bathroom.’ His statement, of course, doesn’t name who was with him but from the other witnesses we know who has been testified to went in the bathroom. The witnesses testified that McCroskey is the man that went in the bathroom. ” (Emphasis added.)
At an In Camera hearing the court required all
The State, in addition to introducing the confession of the Co-defendant Bradden, after an In Camera hearing on the question as to whether the confession was voluntary, presented in evidence the testimony of the assistant manager of the restaurant allegedly robbed and two other employees of the restaurant identifying appellant and his Co-defendant Bradden as the two men involved in robbing the restaurant in Little Rock on August 12, 1978. Another employee of the restaurant present at the alleged robbery testified that the Co-defendant, Bradden, was the black man involved in the alleged robbery and testified as to the actions of a white man involved and his testimony as to the actions of the white man was corroborative of the testimony of the three witnesses who specifically identified the appellant as the white man involved in the alleged robbery. The testimony of the witnesses tended to identify the ‘other man’ named in the Bradden confession as the appellant.
Neither of the co-defendants took the stand and the only evidence offered by the appellant was the testimony of his sister and a girlfriend with whom appellant lived for a time to the effect that appellant was with them at his girlfriend’s place of abode in Levy at the time the alleged robbery was said to have occurred.
Appellant correctly states the law that the confession of one defendant is hearsay and inadmissible against his co-defendant. The Sixth and Fourteenth Amendments to the Federal Constitution guarantee to a defendant in criminal prosecutions the right to be confronted with witnesses against him and the right to cross-examine them.
It is clear that the trial judge carefully required the confession of the Co-defendant Bradden to be revised to delete any reference by name to the appellant before it was read in evidence. The question here arises over the fact that testimony of other witnesses on behalf of the State tends to identify appellant as the “other man” in the addicted confession of the co-defendant; and the prosecuting attorney referred in his closing argument to ‘the other man’, who, according to the confession, accompanied Bradden, had a gun, went in the bathroom, went behind the counter and shortly came out carrying the money and of Bradden receiving $100.00 of the money.
Appellant objected to the argument of the prosecuting attorney and moved for a mistrial. The court denied the motion and stated, “It’s argument. It’s not evidence.”
In the case of Bruton v. United States, 391 U.S. 123, 88A S. Ct. 1620 (1968), the confession of a co-defendant was received in evidence. The confession contained incriminating statements against appellant and identified the appellant by name. Although the trial judge instructed the jury that the confession of the co-defendant was not evidence against the appellant Bruton, the court held the confession added substantial weight to the Government’s case against Bruton in a form not subject to cross-examination; and that this constituted a violation of Bruton’s Sixth Amendment right to be confronted with the witnesses against him.
In the Bruton case the appellant was specifically identified by name in the confession of his co-defendant that was received in evidence. However, the identity of appellant in the present case could be determined in light of other evidence that was received. No instruction was requested or given that the jury could not consider any part of the Bradden confession in determining the guilt or innocence of appellant. However, appellant had objected to the Bradden confession being received without deleting any reference to “another person”.
The prosecuting attorney also argued:
“It’s obvious what happened in the case, especially from the defendant’s statements. The two of them planned this robbery. They went in together . . . Mr. McCrosky went to the back. He didn’t pull out the pistol . . . But we know there was a pistol and we know he represented there was one.”
Since the confession of the co-defendant was not competent evidence against the appellant, it was error for the prosecuting attorney to make an argument to the jury calculated to have the jury consider the confession of the co-defendant as evidence against the appellant, as was done in this case.
Appellant further contends that the court erred in refusing to grant its motion for mistrial, because of alleged prejudicial remarks of the prosecuting attorney incident to appellant’s failure to testify.
The prosecuting attorney made the following remarks to the jury in his closing argument,
“And what evidence do you have concerning this statement? You’ve got two officers who have sworn under oath as to the circumstances of taking the statement. There’s been no evidence submitted in any way to challenge anything other than that was a perfectly free and voluntary statement given by Mr. Braden, (sic). That’s the only testimony.”
It is true the statement was made with reference to the voluntary character of the co-defendant’s confession. However, there was no instruction for the jury to be concerned with the question as to whether the co-defendant’s statement was voluntary.
In Adams v. State 263 Ark. 536, 566 S.W. 2d 263 (1978), a case in which appellant did not take the stand, the court reversed a conviction of the appellant because the prosecuting attorney in the closing argument to the jury said,
“ ... to convict him, the defendant, you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration.”
The court said, “It is well settled that comment on the failure of a defendant to testify in a criminal case is violative of the self incrimination clause of the Fifth Amendment to the United States Constitution, which is applicable to the States by the Fourteenth Amendment to the Constitution.”
The statement of the prosecuting attorney in the present case, focused attention on the fact that appellant failed to take the stand and in any way challenge the statement of the co-defendant that was received in evidence. Appellant’s constitutionally protected right was there by infringed and we are unable to say that the error was harmless beyond a reasonable doubt. Chapman v. California, 388 U.S. 18, 87 S. Ct. 824.
Reversed and remanded. | [
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Carleton Harris, Chief Justice.
This is a railroad crossing accident case. Mrs. Barbara Gipson, a 24-year-old housewife, 'was driving her husband’s 1953 Studebaker pickup truck with her two daughters, ages 3 and 2, as passengers, on May 26, 1965, about 9:30 a.m. Mrs. Gipson stopped the truck at a railroad crossing in the town of Bigelow, Arkansas. She then attempted to start the truck, but it would not start; however, as she was trying to start it, the truck rolled onto the tracks. She again attempted to start it, but the starter just “grinded,” and about the same time she heard an approaching train. Mrs. Gipson tried once more to start the truck, concluded that it was not going to start, and got out. She threw both little girls from the vehicle, and all reached a position of safety, but one of the children attempted to run back to the truck as the train neared the crossing. Mrs. Gipson ran after [he child, and the train struck the front part of the truck and knocked it against appellee, who sustained injuries. Suit was instituted against the railroad, and on trial, the jury found Mrs. Gipson 20% negligent, the railway company 80% negligent, the engineer guilty of no negligence, and Mrs. Gipson’s damages were assessed at $50,000.00, the amount sought in the complaint. From a judgment entered in the amount of $40,000.00, appellant brings this appeal. Five different contentions are urged for reversal. Since we are of the opinion that the court erred in refusing to direct a verdict for appellant, there is no need to discuss the other alleged errors.
Appellee’s case is founded upon contentions that the train crew did not keep a proper lookout; that the employees of the company negligently failed to sound the whistle or ring the bell to warn of the train’s approach ; that high weeds and grass were permitted to grow along the right-of-way to such a height as to prevent appellee from seeing the train; and that the crossing was abnormally dangerous.
There is testimony that the train crew failed to sound a whistle or bell, and also testimony that these warnings were given; and there is testimony pro and con relative to the other contentions. However, it is not really pertinent to a determination of this lawsuit whether the whistle and bell were sounded in time to giv.e warning; whether a proper lookout was maintained l>3r the railroad employees; or whether there is evidentiary support ior the other allegations of negligence, for it is uncontradicted that Mrs. Gipson knew the train was coming while she was still sitting in the truck on the track. Her knowledge that the train was approaching is the controlling and determinative fact in this litigation, for any failure on the part of appellant to property warn could not have been the proximate cause of the injuries complained of. In Missouri Pacific Railroad Company, Thompson, Trustee v. Doyle, 203 Ark. 1111, 160 S.W. 2d 856 (1942), we said:
“In the instant case, even though the statutory signals were not given, this was not the proximate case of the injuries complained of, for the reason that Mrs. Doyle admitted that she saw the headlight from the train and it was moving as it approached the crossing. Under these circumstances it was her duty, in the exercise of ordinary care for her own safety, to stop her car, and this she admits she failed to do.”
In Missouri Pacific Railroad Company, Thompson, Trustee v. Carruthers, Adeno, 204 Ark. 419, 162 S.W. 2d 912 (1942), the court said:
“* * * The statute, § 11135 of Pope’s Digest requires railroad companies to ring the bell or blow the whistle at crossings, that is, to do one or the other, beginning 80 rods away, and to continue until the crossing is passed. We have held in many cases that these statutory signals cease to be factors and that no recovery can be had for failure to give them when the presence of the train is plainly discoverable by other means, the latest being the Howard case.”
In Missouri Pacific Railroad Company, Thompson, Trustee v. Dennis, Admr., 205 Ark. 28, 166 S.W. 2d 886, it was stated:
“In the instant ease, even though the statutory signals were not given, this was not the proximate cause of the collision and consequent damages. As we have indicated, it was Isaac Dennis’ negligence in failing to look that caused his death. In the recent case of Mo. Pacific Ry. Co. v. Doyle, 203 Ark. 1111, 160 S.W. 2d 856, we said: ‘We have many times held that the purpose of giving signals is to warn the traveler of the approach of a train, but when the traveler has this knowledge otherwise warning signals cease to be factors. In Chicago, R. I. & Pac. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S.W. 2d 175, this court said: “The object of signals is to notify people of the coming of a train. Where they have that knowledge otherwise, signals cease to be factors.” ’ ”
In Kansas City Southern Railway Company v. Baker, 233 Ark. 610, 346 S.W. 2d 215, it was contended by appellee that there was sufficient testimony to sustain a finding that the statutory signals, required of the train crew, were not sounded. Two persons testified that, though they were in a position to have heard the signals had they been sounded, they heard none. In reversing a judgment for appellee, we again said:
“But it is not necessary to decide this point at this time because in the case at bar Mrs. Baker cannot. recover, even though no signals were given, because if she saw the train approaching and walked in front of it, there can be no recovery regardless of whether the statutory signals were sounded. There is direct and circumstantial evidence' that Mrs. Baker did see the train and tried to cross in front of it. There is no substantial evidence to the contrary. In the case of Missouri Pacific B.R. v. Doyle, 203 Ark. 1111, 160 S.W. 2d 856, this Court said: ‘We have many times held that the purpose of giving signals is to warn the traveler of the approach of a train, but when the traveler has this knowledge otherwise, warning signals cease to be factors.’ ”
The testimony of appellee herself establishes that she was well aware of the approach of the train before tlie accident occurred, and, in fact, had reached a place of safety, together with the children, until one child started back to the truck. After testifying that she tried to start the vehicle once after hearing the train, she said she got out of the truck onto the ground; then “I got Suzanne and threw her and I got Pamela and threw her.” She stated that the children had reached a safe place, and she had reached a safe place, and all three would have been out of the way if one of the children had not started back toward the truck. When this happened, Mrs. Gipson ran to pull the child back, and she was thus in a position of danger when the train reached the crossing.
Of course, the mother, in going back for the child, did what any parent would do, for a normal parent would, without hesitation, risk, injury if it appeared that one of the children was in danger. Though that be true — the railroad company cannot be held responsible because a person chooses to place himself in a position of peril. Appellee argues in her brief:
‘‘The jury might well have concluded that had the railroad kept a proper lookout, applying the brakes sooner and before impact so as to slow down the advance of the train, or had the railroad given the inquired warning by sounding the whistle con tinously for a quarter of a mile prior to reaching the crossing', the appellee would have had sufficient time to have fled to safety, or that impact would not have been as violent so as to spin the truck around and knock it into her.”
This, of course, is pure speculation — -but we do know, from the mouth of appellee, that she had earlier reached a place of safety, and was only injured because she voluntarily returned toward the tracks.
Reversed and dismissed.
Byrd, J., concurs.
“‘Well, I pulled up to the track and I stopped and the truck died and I tried to start it and the starter was under the clutch and when I tried to start it it rolled forward and I heard the train then...” The front end of the truck protruded out upon the track.
One person testified to the same, thing in this case, while two residents of Bigelow and the train crew testified that the whistle was blown in plenty of time. Mrs. Zelma Wilson testified that the train “started whistling before it passed our house, and we got alarmed when it kept whistling before it hit the truck.” She lived in Fouche, a mile from Bigelow. | [
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Otis H. Turner, Special Chief Justice.
Prior to De cember 18th, 1975, J. L. McEntire maintained a checking account in Pine Bluff National Bank in his individual name with sole authority in the owner to withdraw funds from the account. On December 18,1975, a new signature card for the account was executed by McEntire and his wife, Vera E. McEntire, permitting either to withdraw funds from the account but retaining the account in the sole name of J. L. McEntire. Thereafter, both Mr. and Mrs. Entire did, on occasion, withdraw funds from the account on their individual signature. On January 6,1977, J. L. McEntire caused a new signature card to be issued in his sole name withdrawing the authority of Mrs. McEntire to draw funds from the account.
Both signature cards contained the following identical language:
“You are authorized to recognize either of the signatures subscribed below in the payment of funds or the transaction of any business for this account. . .”
“The below — signed, joint depositors, hereby agree each with the other and with you that all sums now on deposit or herebefore or herafter deposited by either or both of said joint depositors with you to their credit as such joint depositors with all accumulations thereon are and shall be owned by them jointly, with right of survivorship, and be subject to the check or receipt of either of them or the survivor of them and payment to or on the check of either or the survivor shall be valid and discharge you from liability.”
“Each of the below — signed appoints the other attorney, with power to deposit in said account monies of the other and for thát purpose to endorse any check, draft, note or other instrument payable to the order of the other or both said joint depositors.”
* * *
‘ ‘Your rights or authority under this agreement shall not be changed or terminated by us or either of us except by written notice to you which shall not affect transactions therebefore made.”
J. L. McEntire died subsequent to January 6, 1977. Vera McEntire brought this action against the Estate of her deceased husband and Pine Bluff National Bank to recover the funds on deposit in the account. Thereafter, both parties moved for summary judgment which was granted in favor of the estate and the Bank. From that Judgment, this appeal is taken.
For reversal, Appellant raises two broad issues. First, that appellant, rather than appellee, was entitled to summary judgment; and second, that the Motion for Summary Judgment should not have been granted because there exist genuine issues of material fact.
Under point one, appellant urges that she is entitled to Summary Judgment because a tenancy by the entireties was created in the bank account on December 18, 1975, which could not be destroyed by the unilateral act of J. L. McEntire in removing the cotenant’s name from the account. Appellant further urges under point one that the Bank is estopped to deny appellant’s absolute right to the balance in the account because checks executed by appellant and drawn on the account were honored by the bank subsequent to January 6, 1977.
Under point two, appellant makes no attempt to state what issues of material fact exist. However, the Complaint alleges (1) that a gift was made; (2) estoppel by the Bank and, (3) the creation of a tenancy by the entireties in the account.
We will first consider appellant’s point two in that under the state of the record before us, we find that no genuine issue of material fact exists which would justify a reversal.
In order to establish a completed inter vivos gift, there must be clear and convincing evidence that there was an actual delivery of the subject matter of the gift with a clear intent to make an immediate, present and final gift beyond recall, accompanied with an unconditional release of all fu ture dominion and control by the donor over the property delivered. Porterfield v. Porterfield, 253 Ark. 1073, 491 SW 2nd 48; Coristo v. Twin City Bank, 267 Ark. 554, 520 SW 2nd 218.
The affidavits produced by appellant leave no issue of fact relating to inter vivos gift and the establishment of the account did not constitute a gift, as a matter of law.
The assertion that Pine Bluff National Bank is estopped by its conduct in honoring checks drawn against the account after January 6, 1977, is without merit. The uncontroverted facts in the record before us are that at the time the bank honored the checks, the authority of Mrs. McEntire to draw funds from the account had already been terminated.
Equitable estoppel is available only to one who has in good faith relied upon the conduct of another and has been led thereby to a change of position for the worse, acted to his injury, or gave up or abandoned a legal right upon the representations or conduct constituting the estoppel. Geren v. Caldarrera, 99 Ark. 260, 138 SW 335; Deal v. Deal, 220 Ark. 134, 246 SW 2nd 429; Thompson v. Wilhite, 131 Ark. 77, 198 SW 271.
Applying the facts of this case to the estoppel rule, it is immediately apparent that the appellant neither alleged or in fact changed her legal position or status because the checks were honored; she has not acted to her injury; and lastly, she gave up no legal right as a result thereof. Whether the checks drawn against the account after January 6,1977 were paid or dishonored does not alter the legal status of the parties, the nature of the account at any given time, or the legal rights of Mr. or Mrs. McEntire relating to the account. What was done with regard to the account was done within the bounds of the laws of this State and was done prior to the acts alleged to constitute an estoppel.
The Bank was acting within its authority in permitting the removal of appellant as one authorized to draw funds from the account. The involved account was held in such a manner that J. L. McEntire (or Mrs. McEntire) could with draw or receive payments or withdraw all funds therefrom, and any such payments made by the banking institution would be a complete discharge as to the amount paid. Ark. Stats. Annotated, § 67-552(h). In addition, the Bank was under no legal duty to notify appellant that she could no longer withdraw funds from the account and no legal right of appellant was impaired or destroyed by the unauthorized payment of checks drawn on the account by appellant subsequent to January 6, 1977.
Appellant implies that a withdrawal of authority, or change of authority to draw upon the account should be distinguished from a withdrawal of the funds and establishment of a new account. We have previously established that there is no such valid distinction and it was thus unnecessary for Mr. McEntire to withdraw the funds and establish a new account as opposed to the course he followed in this instance. To require such would have been superfluous and equity regards substance rather than form. Davis v. Jackson 232 Ark. 953, 341 SW 2nd 726.
The remaining question under appellant’s point two relates to the estate created between this husband and wife upon execution of the account signature card on December 18,1975. The account, as it existed subsequent to December 18, 1975 and prior to January 6, 1977, was a tenancy by the entireties. Having previously disposed of the inter vivos gift and the estoppel arguments, this leaves only the question of the rights of the parties under a tenancy by the entireties in a bank account — those rights being the subject of established law.
There being no genuine issue of material fact remaining, summary judgment was a proper remedy in this case.
Turning then to appellant’s point One urging that appellant, rather than appellee, should have been granted summary judgment on her motion, we consider the rights of tenants by the entireties in a bank account as those rights are governed by our established law and the facts in this case.
As early as 1921, this Court recognized that an estate by the entireties may be created in personal property. Union and Mercantile Trust Company v. Hudson, 147 Ark. 7, 227 SW 1. That holding has been consistently reaffirmed through the years, Black v. Black, 199 Ark. 609, 135 SW 2nd 837, and is now so well recognized that extensive citations are unnecessary.
In 1965, the General Assembly (Act 78 of 1965) established that bank accounts held in the names of persons who designate themselves as husband and wife shall be the property of such persons as tenants by the entireties and upon the death of one of the persons the account shall be payable to the survivor. The statute further provides that the banking institution shall pay withdrawal requests and otherwise deal in any manner with the account upon the direction of any one of the persons named therein. Ark. Stats. Annotated, Section 67-552. This was the Statute in existence at the time of creation of the account in question.
In Black, supra, we held that the Statute was passed for the protection of the bank in which the deposit was made. Though the Statute existing at the time of the Black decision was subsequently amended, we hold that the amendments do not change the character thereof and the statute continues to exist for the same primary purpose.
An estate by the entireties in a bank account differs in one significant aspect from an estate in real property in that the estate exists in the account only until one of the tenants withdraws such funds or dies leaving a balance in the account. Funds withdrawn or otherwise diverted from the account by one of the tenants and reduced to that tenant’s separate possession ceases to be a part of the estate by the entireties. Black v. Black, supra; McGuire v. Benton State Bank, 232 Ark. 1011, 342 S.W. 2d 77. This does not mean that in a proper case under timely allegations of fraud or other such remedy, that one of the co-tenants could not sustain an action to recover all or a part of the funds diverted or withdrawn by the other. No such allegation or proof exists in this case.
The decree of the Chancellor is in all things affirmed.
Special Justice Douglas Smith joins in the opinion.
Harris, C.J., and Byrd, J., not participating.
Fogleman and Hickman, JJ., dissent. | [
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Carretón Harris, Chief Justice.
Janie Lorean Edwards, appellant, widow of Charlie Howard Edwards, and administratrix of his estate, instituted suit for his wrongful death against T. H. Epperson & Son House Moving Company, Inc., appellee herein, and Arkansas PoAver & Light Company. Prior to trial, a non-suit was taken against the power company, and the case proceeded to trial against the Epperson Company. When appellant completed her case, appellee moved for a directed verdict. The motion was overruled, and the cause was submitted to the jury. A verdict was returned in the amount of $96,250.00 for appellant, and a motion AA7as then made by appellee for a judgment non obstante veredicto. The court granted the motion, and entered a judgment for appellee, dismissing appellant’s complaint Avith prejudice. From this judgment, appellant brings this appeal.
The complaint alleged that Edwards was killed while engaged in moving a house on TT.S. Highway 67. It Avas asserted that Edwards, who Avas riding on top of the house, was struck by a guy wire, Avhich had been placed across the highway by the power and light company. Further allegations were to the effect that the truck was being driven by Ed Epperson, an agent and employee of the Epperson Company, and that the death of Edwards Avas the result of the negligence of the driver, who was traveling at an excessive rate of speed, failed to keep a proper lookout, failed to use proper control, and did not heed a warning to stop. Appellee’s position is that it Avas established at the time of the accident that Epperson was employed and acting on behalf of D. F. Arey, Avho was also engaged in the business of hauling houses. After the jury verdict, the court concluded that, though there was sufficient evidence as to negligence and proximate cause to justify submission of the case to the jury, there was not sufficient evidence that Epperson was acting for and in behalf of Epperson & Son House Moving Company to make a jury question. On this basis alone, the n.o.v. judgment was rendered.
For reversal of the court’s judgment, it is first argued that the court had no authority to enter a judgment notwithstanding the verdict, and it is contended that this would have been proper only if the pleadings had shown conclusively that one of the parties was entitled to a judgment as a matter of law. It is asserted that the court could do no more than set aside the jury verdict, and this action would, of course, permit another trial. Appellant is in error. In Stanton v. Arkansas Democrat Company, 194 Ark. 135, 106 S.W. 2d 584, this court was presented the same argument, but we disagreed, pointing out that there is a distinction between a ease where a final judgment has been rendered and entered of record, and where only a jury verdict has been received, and we held that in the last instance, a judgment non obstante veredicto could be entered. The court said.
“The question there reserved is now decided, and we hold that after a verdict has been returned, but before the entry of judgment thereon, the court has the jurisdiction to determine whether judgment shall be entered, and, if so, what judgment, and if it be found by the court before the entry of judgment that no testimony has been offered to sustain the verdict, and that no cause of action has been shown to exist, the court has the jurisdiction to so declare and to direct the judgment which shall be entered. If it is thought that the court has acted erroneously a bill of exceptions should be filed, which would afford us on the appeal the opportunity to pass upon the question whether, under the testimony, a verdict should have been directed in favor of the party for whom judgment was rendered. ’ ’
In a much more recent case, Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962), the Stanton holding was reiterated. We stated:
“The verdict -was in favor of Mourton. Now it is true that the trial judge might have granted a new trial if he found the verdict to be against the preponderance of the evidence. Bockman v. World Ins. Co., 222 Ark. 877, 263 S.W. 2d 486. But this case does not involve a motion for a new trial; instead, the request was for a judgment notwithstanding the verdict. Such a motion ■may be granted if there is no substantial evidence bo support the verdict.”
Accordingly, the only question before us is whether there was sufficient proof that Ed Epperson, the driver of the truck, was an agent or employee of appellee company at the time of the accident. The evidence in support of this allegation is as follows:
1. Ed Epperson, the driver of the truck, is a vice-president of T. H. Epperson & Son House Moving Company, Inc.
2. Two other regular Epperson employees (Charlie Edwnrds and Obie Horn) were also on this particular job.
3. Baymond Edwards, son of the deceased, testified that he worked for Epperson “off and on” for two years prior to the date of the accident, and he said that, though Arey owned the tractor that was being used, the trailer was owned by Epperson. This witness stated that he and his father had “built” the trailer, though his subsequent testimony indicated that he meant they had lengthened it by three feet. He also said that he eonld itdentify it by a welding mark, this repair having been occasioned by a ripped place near the second wheel.
4. A permit had been obtained by Epperson from the Highway Commission to move a house from Malvern to a destination 14 miles north of Malvern, the job to be performed between May 12 and May 16. This permit was numbered 22018. Arey had also been issued a permit by the Highway Department to move a house from Malvern to a destination 14 miles north of Malvern, the job to be performed between May 12 and May 16. This permit was numbered 22019.
The evidence offered by appellee relative to these facts, in the order listed, was as follows :
1. Ed Epperson testified that Arey contacted him requesting that he (Epperson) help him in moving the building, because Arey’s wife was in the hospital, and Arey wanted to take her home. Epperson said that he was paid $25.00 b}^ Arey, which he spent; no money was paid to the Epperson corporation. Arey testified as follows:
“On the day of the accident I called Mr. Epperson the night before and asked him if he wasn’t too busy would he go down the next day and drive my truck while I come in and got my wife out of the hospital and I would be right back down there to take over.”
2. Epperson testified that Edwards was working for Arey on the day in question, and was paid by Arey. Are}?- testified that he hired Edwards for this particular job at a rate of $20.00 per day, and he also said that he hired Horn on this job. The witness stated that he received all of the money for moving the house, and that the Epperson corporation received nothing.
3. Raymond Edwards testified that his father had worked on Arey jobs previously, and that he (Raymond) had also, on one occasion, worked on an Arey job.
On cross-examination, the witness admitted that he did not know who the trailer belonged to on the date of the accident, and he also conceded that another trailer could have been welded in the same place. Epperson testified that Edwards had nothing to do with building the trailer, and said that it was bought in Pine Bluff about 15 years ago.
4. This was the strongest circumstance offered by appellant, for it does seem unusual that these two permits were issued on the same date, consecutively numbered, permitting the moving of houses during the same period of time, approximately the same distance and in the same direction, from Malvern. Though this was the strongest evidence offered, strangely enough, appellee’s evidence with regard to these facts, is probably the most convincing that it offered. An examination of the record reveals that different vehicles were undoubtedly involved. The Epperson application and permit reflect a truck license number of D402, and a trailer license number of ST6673, while the Arey application and permit show a truck license number of C838 and. a trailer license, ST6455. The width of the load in the Epperson permit is shown as 20 feet, while the width of the load in the Arey application is 22 feet. Epperson testified that the job that occasioned his application involved moving a construction shack belonging to an asphalt plant, and Arey testified that his contract was to move a house for a Mrs. Moody.
We agree with the trial court that the evidence was insufficient to make a jury question. The testimony by Epperson and Arey that Epperson and Edwards were working for Arey on this occasion is undisputed. There is also some significance in the fact that Edwards, though an employee of appellee, had, on other occasions, worked for Arey.
The testimony of Raymond Edwards is of no value, because he was unable to dispute the ownership of the trailer, i.e., he admittedly did not know who owned the trailer on the day of the accident. While the information shown in the applications and permits would perhaps, at first blush, indicate the same moving job, this conclusion is shown to be erroneous when the applications and permits are more clearly examined. "Very definitely, the permits show, not only that applications were made by two different persons, but more important, that two different trucks and trailers were to be used. We see no reason for appellee to have obtained two permits for the same haul. These permits were granted five clays before the accident, and there would certainly have been no point at that time in endeavoring to create confusion as to which company had the job. In addition, a picture of the truck and trailer with the house upon it is in the transcript. This picture was taken by Don’s Studio of Malvern after the accident, and very clearly shows the license numbers of both the truck and trailer belonging to Arey. Of course, we suppose it is possible that Epperson could own both trucks and trailers, but there is not a line of testimony to support such a supposition, nor does appellant make this suggestion or contention.
Complaint is made that the court erroneously refused to permit the sheriff to testify that Epperson, at the scene of the accident, presented a card, which would have identified him in his capacity with the appellee corporation. Objection was sustained when counsel asked what appeared on the card. We do not agree that error was committed. There was no effort to offer the card itself, which would, of course, have been the best evidence, and there was no evidence that the card had been lost. It may be that the officer simply looked at the card, rather than taking it, but this is not shown Before the sheriff could have testified, it would have been necessary to make proof of why the card could not be presented. Town and Country Trailer Sales, Inc. v. Godwin, 233 Ark. 307, 344 S.W. 2d 338. Not only that, but no offer of proof was ever made showing what the sheriff’s answer would have been had he been permitted to answer the question. It was necessary that this tender of proof be made. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30.
The court’s action in granting the judgment non obstante veredicto was not error.
Affirmed.
This had reference to the case of Scharff Distilling Company v. Dennis, 113 Ark. 221, 168 S.W. 141.
Emphasis supplied.
Even if the card identified Epperson as a vice-president of appellee company, it would not appear that this would have added very much to appellant’s evidence, for Epperson, normally being associated with appellee company, might well have carried personal cards reflecting that fact. | [
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Conley Byrd, Justice.
Following’ our reversal and remand in St. Louis Southwestern Railway Co. v. Jackson, 242 Ark. 858, 416 S.W. 2d 273 (1967), this case was retried with the same witnesses used before, plus additional witnesses for both sides. The verdict in the former case was for $69,188.90 and the verdict upon which judgment was entered here is for $93,236.13. For reversal appellants set forth two points as follows:
I. There was absolutely no proof on negligence and a verdict should have been directed for all defendants.
II. The mental anguish award for the death of grandchildren was erroneous.
Appellees’ witnesses again testified about the motorists’ obstructed view of southbound freight trains and the dimness of the signal lights. Witnesses Otha Hewitt and Larry Coulson again testified that motorists traveling west did not have a clear and unobstructed view of a southbound train until they got within 150 feet of the railroad track. Other witnesses testified that this distance could be as much as 200 feet. Appellees’ witnesses again testified that the signal lights were dint and difficult to see. One witness said they were much dimmer than the railroad’s interlocking signal where the Missouri Pacific tracks cross the Cotton Belt tracks. A new witness, Albert Hess, testified that the signal lights were not near as bright as the flashing light on the car of the policeman called to investigate the second accident.
The testimony with reference to the previous two accidents within the same two-week period under similar circumstances was again presented, together with the traffic count and the overall view of the area. In the previous appeal we held this testimony sufficient to make a jury issue on excessive speed and abnormally dangerous crossing. We find that decision to be controlling here as the law of the case.
On the first appeal appellants contended that the grandparents were not entitled to recover damages for mental anguish occasioned by the death of the grandchildren because Tommy Jackson lived some few moments after the death of his children and thus any cause of action for mental anguish died with Tommy Jackson. We there pointed out that there was evidence from which the jury could find that all parties died simultaneously. In holding that the matter was properly submitted to the jury we said,
“It is true that when we had our mental anguish statute before us in Peugh, supra, we there limited recovery for mental anguish to ‘heirs at law’ of the decedent. However, where a whole family is killed in a matter of moments, as is the situation here, the bench and bar should not expect a too literal interpretation of the words ‘ heirs at law’ as the same are used in Peugh. Act 255 of 1957, creating the right to recover for mental anguish, certainly did not intend that right to be so limited.”
Upon retrial the matter came upon the same pleadings and was presented to the court under identical evidence but this time appellants contended that the grandparents are not within the enumerated relatives permitted to assert a cause of action for mental anguish under Act 255 of 1957. Under the doctrine of the law of the case, we hold that the trial court properly ruled against appellants on this issue.
We had before us an analagous situation in Moore, Admx. v. Robertson, 244 Ark. 837, 427 S.W. 2d 796 (1968) wherein we said:
“On cross appeal Robertson first contends that the trial court’s decision in favor of his codefendants, on the merits, should inure to his benefit as well. That contention is based upon a common-law rule that where one defendant answers and another defaults, a decision on the merits in favor of the answering defendant — upon a defense common to both defendants — operates as a release of the defaulting defendant. Burt v. Henderson, 152 Ark. 547, 238 S.W. 626 (1922).
“The appellee’s contention is not now available to him, because it could and should have been made on the first appeal. The rule is that the decision on the first appeal is conclusive of any arguments that were or could have been made at that time. Storthz v. Fullerton, supra. The case at bar confirms the wisdom of the rule. If the appellee’s contention has merit — a point which we do not decide — its assertion on tlie first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on.”
We would be less than honest if we did not agree with appellant that the law of the ease doctrine is a harsh rule, but when weighed on the scale of justice we find that tlie confusion and uncertainty which would result without use of the doctrine outweighs the harshness. In Porter v. Hanley, 10 Ark. 186 (1849) we had before us a case which after remand was retried upon substantially the same evidence. In applying the law of the case doctrine, we said:
“The counsel for the appellant has argued at some length, tlie main question decided by this Court upon the first appeal, and asks that we review that decision for the purpose of correcting what he assumes as error in the decision. We have duly considered this proposition (for the question is not raised by the assignment of errors) and inasmuch as the decisions of this Court have not been altogether uniform on this point, we will proceed to review them and determine whether, in the after adjudications of this Court upon the same case, its decisions can, under any circumstances, be modified or overruled. The cases of The Real Estate Bank v. Rawdon et al., 5 Ark. 558. Fortenbury v. Frazier et al., 5 Ark. 202 and Walker & Faulkner v. Walker, 2 Eng. 542 expressly decide that after the term has expired at which the decision is made, it is final and conclusive between the parties; that the Circuit Court is bound by the decision of this Court and must carry it into execution; that the inferior court cannot vary the decision, nor can it give further relief as to any matter decided, not even when it is apparent that this Court has mistaken a material fact. In the case of Fortenbury v. Frazier, et al., the court says ‘After a case has been decided by the Supreme Court and remanded to the inferior Court and is again brought before the Supreme Court, nothing is before the Court for adjudication but the proceedings subsequent to the mandate.5 In the ease of The Real Estate Bank v. Rawdon et al., 5 Ark. 558, upon a question as to whether the Court had power to reconsider its decisions at the close of the term at which they were made, although the Court were divided, a majority being of opinion that even though the motion is made at the same term, it must be decided also at that term or the judgment will be conclusive, still they were unanimously of the opinion, that where no motion for a reconsideration is interposed, the decisions at the close of its term, became final and conclusive upon the parties.
“In a more recent case, (Rutherford, use, &c. v. Lafferty, 2 Eng. 402,) this court seems to have departed from the rule laid down in these cases, whilst their authority is not questioned. On the contrary, it would seem that the court recognized the general principle, but based its decision upon the fact that the Supreme Court, in its former decision, had overlooked an important fact in the case. This was doubtless true; but then the question recurs, can the decision be held as conclusive between the parties and yet subject to correction and revision as to a misapprehension of facts? If for these, why not for errors as to the law also? We are at a loss for any satisfactory reason for the distinction, and are unwilling to concede that it should exist. It would not only authorize the appeal made to the court in this instance, but in all cases where the counsel, in their zeal for the success of their clients, might and doubtless would, where there was a hope of success, ask that the whole case be re viewed. The uncertainty and confusion which would result from such a practice, would strike vitally that progressive principle which lies at the foundation of all judicial proceedings so happily illustrated in the order and system of pleading and practice, which make each definite step in the progress of the cause conclusive upon the parties, and point them prospectively to an ultimate and final decision of the case. These rules of pleading have their origin in the same common principle alike applicable to the judgments of courts, where litigation ceases, and the judgment of each court is final and conclusive in the inferior courts unless set aside or reversed by an appellate tribunal; in the superior court, unconditionally so. If the propriety of this rule could need illustration, it is abundantly to be found in the case of Rutherford, use, &c. v. Lafferty. There the Supreme Court decided that the plaintiff had no right of action whatever in the matter in controversy, and reversed the decision of the Circuit Court. When the case returned to the Circuit Court, in obedience to the decision of this court it decided that the plaintiff had no right of action, and rendered judgment against him for costs. The plaintiff appealed to this court again, and this court reversed the decision of the Circuit Court which had been rendered on the mandate of this court, for the reason that this court had mistaken an important fact in the case. So that, in fact, there are two decisions on the point totally different. We think the cases of Fortenbury v. Frazier et al., and the R. E. Band, v. Rawdon et al., well sustained, both upon authority and principle, and give them our full approbation.”
In Floyd v. Miller Lumber Company, 160 Ark. 17, 254 S.W. 450 (1923), the issue relative to the validity of the severance tax act came before us on the pleadings. In the trial court, the complaint alleged that the tax act was unconstitutional. The trial court overruled a demurrer by Floyd, and when he elected to stand thereon, rendered judgment for the lumber company holding the act unconstitutional. On appeal we upheld the validity of the act and reversed. Upon remand, the Lumber Company amended its complaint to raise the issue that the tax act was not applicable to it. On the subsequent appeal, Miller Lumber Company v. Floyd, 169 Ark. 473, 275 S.W. 741 (1925), we held that the issue of applicability of the tax act to the Lumber Company had been foreclosed by the law of the case doctrine. In so doing, we said:
Having reached the conclusion that the tax levied by the statute was a tax on business and not on property, four members of this court for different reasons united in a decision that the tax was an occupation tax and not a property tax, and therefore was not in violation of the provision of the Constitution above quoted. Whether this decision was right or wrong, it is the law of the case; it is res judicata. The rule has been long established in this State and uniformly adhered to that in the same cause this court will not reverse nor revise its former decisions., Fortenberry v. Frazier, 5 Ark. 200; Porter v. Doe, 10 Ark. 186; Taliaferro v. Barnett, 47 Ark. 359; Vogel v. Little Bock, 55 Ark. 609; United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43; Danaher v. S. W. Tel. & Tel. Co., 137 Ark. 324; Ft Smith Lbr. Co. v. State of Arkansas, 138 Ark. 581; Stuart v. Barron, 148 Ark. 380; Mo. Pac. Rd. Co. v. Walnut Ridge-Alicia Road Imp. Dist., 160 Ark. 297; St. L. S. F. R. Co. v. Kirkpatrick, 162 Ark. 65, and numerous other cases cited under the head of Appeal and Error in 1 Crawford’s Digest, 405 and 5 Crawford’s Digest, § 405. This general rule is grounded on public policy, experience, and reason. If all questions that have been determined by this court are to be regarded as still open for discussion and revision in the same cause, there would be no end of tlieir litigation until the financial ability of the parties and ingenuity of their counsel had been exhausted. A rule that has been so long established and acted upon and that is so important to the practical administration of justice in the courts should be followed and not departed from.”
This doctrine is neither new or antiquated, but has constantly lived with this court through its many appli-, cations. At this time, we are unwilling to overrule the many precedents wherein it has been applied. For this reason the judgment is affirmed.
George Rose Smith, J., concurs; Brown & Fogleman, JJ., dissent. | [
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Darrell Hickman, Justice.
This is an appeal from an award of treble damages to a landowner against a tenant and an adjacent landowner for trespassing, which resulted in a $6,000 judgment plus $500 attorney fees. We find that the trial court erred in trebling the damages pursuant to Ark. Stat. Ann. § 50-105 (Repl. 1971), strike the unauthorized attorney fees, dismiss the judgment against the tenant, but affirm a judgment for $2,000 against the adjacent landowner.
The Molitor family, the appellees, owns forty acres of land in Phillips County, Arkansas, which has been leased for years to the Washburn family for farming. Less than half of the forty acres can be cultivated since the remaining portion is under water or wet most of the year. A farm road crosses the land and is, and has been, used by the appellant, Ray Foran, the adjacent property owner, to reach his land. It was stipulated by the parties that Foran has a prescriptive easement over the appellees’ forty acres.
There was evidence the road was low and had ditches only one or two feet deep at each side that were narrow enough to step across. The road would wash when it rained and was barely passable in winter. It was used solely for Foran’s easement. Foran decided to improve the road and told appellant, Bobby Washburn, the Molitors’ tenant, that he planned to clean out the ditches and fill the holes in the road. Washburn told Foran that he did not see what harm it would do as long as it did not interfere with cultivation. Foran never discussed his plans with the appellees. Foran also asked Washburn if he could replace some power lines that had once run through the appellees’ land. Washburn said that he did ask appellee E. P. Molitor’s mother about the line and she consented.
Foran had the power lines replaced, and put them along the road. He dug the ditches along the road in places up to eight feet deep and five to ten feet wide, according to the Molitors. He took the dirt from the ditches and raised the road in places three feet above the surrounding ground. The appellees’ complaint was that the changes seriously affected the topographic structure of their land and inhibited drainage. Washburn and Foran testified that the changes were not so extensive. The only witness who testified regarding the amount of damage done, said that it would cost $2,000 to restore the road to its original condition.
The trial court, sitting without a jury, found that Foran exceeded any authority he had by virtue of his prescriptive easement and had trespassed. He resolved in the Molitors’ favor the factual dispute about the effect of the road work and the landowners’ right to keep their property as it was. The judge said in summation: “The defendant, Foran, admits that he had no authority from anyone to go in and do such an expensive construction project. That no one gave him permission to do it, and [he] even said — that he probably should have gotten somebody’s permission.” There is substantial evidence to support the judge’s findings in this regard. Although one has a prescriptive easement, and may maintain that easement, that is not a license to make major alterations in the land. Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957).
But there is no evidence at all that would justify treble damages under Ark. Stat. Ann. § 50-105. That statute is penal and generally provides that if any person cuts down, destroys or carries away any trees or growing things, or digs up any stone, turf or fruit from another person’s land in which he has no interest or right, that person is guilty of trespassing and shall pay treble damages for anything so damaged, destroyed, or carried away. It is our j udgment that the damage done in this case is not covered by this penal statute. Foran had a right to repair the road because it is conceded that he had an easement which is an “interest” in the land according to the statute. The only thing done was that the dirt was moved on the property to build a new road, and while that action amounted to trespass because it was excessive under the circumstances according to the trial court’s finding of facts, it was not the sort of trespass envisioned by Ark. Stat. Ann. § 50-105. See Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979). Therefore, the court was wrong in entering a j udgment for treble damages. But there was evidence which would support the trial court’s finding that the land was damaged from the owners’ point of view, and the only evidence of the amount of damage done was the testimony by a contractor that the old road could be restored for $2,000. The judgment in that amount is affirmed against Foran.
The court also found that Bobby Washburn was liable for the trespass because as a tenant he was under an obligation to prevent the trespass or notify the landowner that it was happening, and, instead, Washburn stood by and allowed the trespass. There is not a preponderance of evidence to support that finding. Washburn never used the road and the testimony was that Foran told Washburn he was only going to clean out the ditches and fill the holes in the road. There was an abundance of testimony that the road had been maintained in such a way for years. A tenant’s duty to the landowner is to exercise reasonable care to guard against injury to the property. Kirkpatrick v. Reese, 219 Ark. 124, 240 S.W.2d 1 (1951). There is no evidence to support a finding that Washburn breached his duty to the Molitors. In fact, it might easily be inferred that had the tenant known such an extensive project was contemplated by Foran, he would have told the Molitors, because he did tell them about the change of the power lines. Therefore, the judgment against Washburn is dismissed.
There is no provision for attorneys’ fees in a case such as this and without express statutory authority such fees are not permissible. American Physicians Insurance Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1966). Therefore, the judgment is affirmed as modified.
Affirmed as modified. | [
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Steele Hays, Justice.
Leonard Ridenhour, appellant, was charged with violation of our “hot check” law, Ark. Stat. Ann. § 67-720 (Supp. 1981 ) and raises issues on appeal that require our interpretation of that statute.
On three separate occasions in February and March of 1982, Ridenhour purchased cattle from the Montgomery County Auction, Inc. He took possession of the cattle and charged the purchases to his account. On three subsequent dates in February and March, he wrote checks for each of the previous purchases. All three checks were returned for insufficient funds. On March 23, 1982, Ridenhour delivered to Montgomery a check for $25,147.77, the total amount of the three smaller checks he had written. This check was also returned for insufficient funds. An information was filed on April 5,1982, charging Ridenhour with violation of § 67-720 for the $25,147.77 check. The jury found him guilty and fixed his punishment at ninety days imprisonment and a fine of $1,000.00.
Appellant raises two issues on appeal, both of which have merit. He first contends that his motion to dismiss should have been granted, as the check for $25,147.77 was only evidence of a debt for a sale on an open account which would not be a violation of § 67-720. We note first that the original statute, prior to a 1977 amendment, specifically included “pre-existing debts” as a violation. That phrase, however, was deleted by the 1977 amendment. That the pre-existing debt under the circumstances of this case does not come within § 67-720 as it reads today, is bolstered by our decision in Sharpensteen v. State, 222 Ark. 519, 261 S.W.2d 537 (1953). Under similar facts, the appellant was charged under our “hot check” statute (67-717 ) for checks drawn on out-of-state banks. This statute, like our current § 67-720, does not include pre-existing indebtedness and we found that there was no violation in Sharpensteen. The appellant in that case had purchased some chickens in Missouri, which were delivered to him the next day in Arkansas. A few days later the seller came to appellant’s place of business in Arkansas and picked up the check for the chickens. The check was drawn on a bank in Oklahoma and returned for insufficient funds. We found that under the wording of that statute, no violation had occurred:
Obviously, on the facts here, appellants had bought and received the chickens in Missouri three or four days before they delivered their check to Edwards in Arkansas. By delivering this check to Edwards, appellants secured nothing in Arkansas in addition to the chickens which they already had, which had been purchased in Missouri, and there delivered to them a few days before. This sale and delivery in Missouri constituted, in effect, an open account. Sharpensteen at 522.
Additionally, our investigation of other decisions reveals that those jurisdictions with similar “hot check” statutes hold generally that payment of a pre-existing debt by a worthless check is not a violation of those statutes. See 59 ALR 2d 1160.
The second contention is that the trial court erred in not granting a directed verdict for lack of evidence that Ridenhour obtained anything of value through his actions, as required by § 67-720. The question went to the jury on whether Ridenhour, by exchanging the one large check for the three smaller ones, had procured something of value. The state offers three ways in which the appellant obtained something of value through this exchange. First, they suggest, that had Montgomery not given up the three smaller checks, the drawee bank would have honored any of the smaller checks singly, if there were sufficient funds, whereas after the exchange, Ridenhour was protected from the sellers collecting on any one of them. However, at the time of the exchange — the record shows that there were insufficient funds to cover any one of the three smaller checks — and this was true throughout the remainder of the month of March. Thus, both Montgomery and Ridenhour remained in the same position they had been in prior to the exchange of the three smaller checks for the one larger one.
The state argues that by the exchange of the three checks, Ridenhour gained relief from any threatened legal action. This argument ignores the fact that Montgomery could have sued at any time on the underlying debt, whether it was holding three smaller checks or one larger one.
The state’s last point is that Ridenhour testified he had asked Montgomery to hold the check until he could make it good. This testimony was contradicted by Montgomery. Were we to accept Ridenhour’s testimony, the state argues that Ridenhour was buying time and thereby gained an extension of credit by having Montgomery hold the check. Again, the state ignores the fact that this would be true whether Ridenhour had asked Montgomery to hold the smaller checks or the large check. Nothing of value was either given or received by the exchange of checks, the parties remained in exactly the same position as they were before the exchange.
Reversed and dismissed.
Hickman, J., dissents.
67-720. Obtaining property with check drawn on insufficient funds. — It shall be unlawful for any person to procure any article or thing of value, or to secure possession of any personal property to which a lien has attached or to make payment of any taxes, licenses or fees, or for any other purpose to make or draw or utter or deliver with intent to defraud, any check, draft or order, for the payment of money, upon any in-state or out-of-state bank, person, firm or corporation, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer has not sufficient funds in, or on deposit with, such bank, person, firm or corporation for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding.
(Statute in force at time of Sharpensteen decision).§ 67-717. Drawing a check or draft on bank outside State with insufficient funds. — It shall be unlawful for any person in this State to secure any goods, wares, and merchandise, credit, or anything of value by means of a check or draft drawn upon any bank or institution outside of the State of Arkansas when said check or draft shall be dishonored or payment refused on account of the giver of such draft or check not having sufficient funds on deposit in said bank to pay said check or draft. | [
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Thomas M. Bramhall, Special Justice.
Felix D’Avignon appeals from a judgment affirming a decision of the Arkansas Racing Commission suspending his trainer’s license for sixty (60) days. On June 19, 1975, Stylish Kim, a dog trained by D’Avignon, placed first in the fourth race at Southland Greyhound Park in West Memphis, Arkansas. Following the race a routine urine sample was taken and sent to a laboratory for analysis. The Commission’s chemist reported that the analysis revealed the presence of caffiene and/or analog or derivative thereof in violation of Rule 1233 of the Rules and Regulations Governing Greyhound Racing in Arkansas. Rule 1233 is as follows:
The trainer shall be responsible for and be the absolute insurer of the condition of an entry he enters regardless of the acts of third parties.
Should the chemical analysis of any sample indicate the presence of a drug, the trainer of the entry shall be suspended for sixty (60) days, or more, or shall be ruled off. In addition, any other person shown to have had the care or attendance of the entry shall be suspended for sixty (60) days, or more, or shall be ruled off. Further, the owner of such entry shall not participate in the purse distribution.
Prior to the race, Stylish Kim was placed in a lock-out kennel pursuant to Rule 3104 of the Rules and Regulations Governing Greyhound Racing in Arkansas, which provides:
Immediately after being weighed in (prepost weight) the greyhounds shall be placed in lock-out kennels under the supervision of the Paddock Judge, and no owner or other person excepting the Paddock Judge, State Veterinarian, Kennel Master, Scale Clerk, Lead-outs under the supervision of the Paddock Judge, Presiding Judge or Commission’s representatives shall be allowed in or near the lock-out kennels.
Although trainers and owners are not permitted in the lock-out kennels there are two closed-circuit television cameras positioned in such a manner so that the entire lock-out room can be observed by watching one of two sets of monitors. These monitors are located in the State Veterinarian’s office and the area of the weigh in scales so trainers and owners may observe their dogs.
After a hearing, D’Avignon was suspended for sixty (60) days and on appeal he contends that Rule 1233, the absolute insurer rule, is unconstitutional by its own provisions and in its application in conjunction with Rule 3104. We will first address the issue of the constitutionality of Rule 1233.
The refusal to impose individual liability for an act which one would not reasonably or ordinarily foresee as causing harm is a basic precept ingrained in our system of jurisprudence. However, the courts have long recognized that the imposition of liability without fault may be appropriate for the general welfare or protection of the public and such sanctions do not violate the due process clauses of the State and Federal Constitutions so long as they bear a reasonable relationship toward accomplishing the desired result. There are many instances in which the United States Supreme Court has approved the application of strict liability and this court is of the opinion that this rule of law is well enough established to allow this court to forego a discussion of the particular cases. See Sandstrom v. California Horse Racing Bd., 31 Cal.2d 401, 189 P.2d 17, 20-21, cert. denied, 355 U.S. 814 (1948), see cases cited; Maryland Racing Comm. v. McGee, 212 Md. 69, 128 A.2d 419, 424 (1947), see cases cited. This court has recognized the power of the Arkansas Racing Commission to:
Take such other action, not inconsistent with law, as it may deem necessary or desirable to supervise and regulate, and effectively control in the public interest, Greyhound Racing in the State of Arkansas.
Arkansas Racing Comm. v. Hot Springs Kennel Club, Inc., 232 Ark. 504, 339 S.W.2d 126 (1960).
We feel the enterprises of horse and dog racing are especially susceptible to fraud and deceit because of the parimutuel wagering. It is apparent that detection of the adulteration of an entrant prior to payment to the winning betters is not feasible and it is imperative that society be afforded as much protection as possible to prevent abuses. For these reasons, we find the absolute insurer (Rule 1233) a constitutional and valid exercise of the police power of this state.
D’Avignon next contends that the absolute insurer rule (Rule 1233) is unconstitutional because of its application in conjunction with the lock-out rule (Rule 1304). He argues that the imposition of a rule of strict liability is predicated on the concept that the one on whom such a burden is placed has control of the instrumentality causing the harm and that this control places him in the best position to prevent harm or injury. The vicious dog is in the control of the owner — the locomotive that starts a fire on the railroad right-of-way is maintained by and in the control of the railroad — the one using a dangerous substance such as explosives for blasting can prevent injury by exercising a high degree of care — the merchant who processes food is in the best position to prevent its adulteration. Counsel for Appellant makes a persuasive argument that Appellant has been deprived of his control of Stylish Kim because of the lock-out rule. No cases from any jurisdictions have ruled on the constitutionality of the absolute insurer rule in conjunction with a lock-out rule.
Several reasons have been given for the lock-out rule. Testimony was offered at the hearing that this rule eliminates the need for a prerace weigh in. Under this rule all of the dogs that are entered in the twelve races to be held that evening are weighed in at approximately 6:00 p.m. After they are weighed the dogs are delivered to race officials for placement in cages in the lock-out room which is monitored by closed-circuit television cameras. The room contains as many as 96 dogs before the first race is run. Stylish Kim was placed in the cage designated as “4 — 4” representing the fourth dog in the fourth race. The cages for each race are together to make the dogs more readily available and for ease in handling the animals prior to each race. There are usually three attendants in the lock-out room at all times. Immediately prior to a race, the dogs entered are taken to a “prerace walk area” for waste elimination purposes and they are then paraded to a reviewing stand allowing spectators to see the animals. The lock-out room is air conditioned and provides a better environment than a cage in a truck in the parking lot. In summer the heat in the parking area would have an effect on the performance of a dog in a race.
A major benefit of the lock-out rule is the elimination for the need for the dogs to be weighed immediately prior to a race. The dogs must be within two pounds of a given weight when they are entered for the race and if they were taken back to their cage in the trucks in the parking area they would have to be weighed again prior to the race. Since the dogs are turned over to the track officials immediately after the entry weigh in, they do not have the opportunity to eat and the prerace weigh in is unnecessary.
In the oral argument of this case other benefits of the lock-out rule were given such as the prevention of a trainer or owner from using various measures to excite an animal to increase his performance. The condition and treatment of the dog is certainly a concern of the Commission.
Counsel for appellant has made an excellent presentation of his position that the lock-out rule causes an unconstitutional application of the absolute insurer rule but this court is of the opinion that appellant has the opportunity to observe his animals while they are in the lock-out room if he so desires. D’Avignon testified that he was too busy to stand at the closed-circuit television monitors and constantly watch his animals. He said that he had to pick up dogs after they had raced to return them to his truck while his other entrants remained in the lock-out room. This court recognizes that without the lock-out room D’Avignon would have to leave some of his animals in his truck to take other entrants to a prerace weigh in so in any event his dogs would be left unobserved unless he has an assistant.
Nowhere in the record of this case can be found any testimony or evidence that D’Avignon complained that the manner in which the lock-out room was constructed or equipped does not afford a proper opportunity to observe the animals and protect them from abuse or adulteration. Even more noticeable is the absence of any evidence in this record that the design of the lock-out room or equipment in fact does not afford the opportunity to guard the animals against abuse or tampering. Although physical control of Stylish Kim was relinquished by D’Avignon when the dog was placed in the lock-out room, Appellant’s argument of lack of control falls short under the evidence in this case. Since there are two television cameras located inside the lock-out room and two sets of monitors on which a trainer or owner can view the lock-out room and since there is no evidence in the record reflecting inadequacies in the design of the lock-out room which might deprive D’Avignon from properly observing his animal, this court is of the opinion that trainers and owners still maintain a sufficient degree of control for the observation and protection of their animals.
From the foregoing considerations it follows that the evidence in this case is not such as to warrant a finding by this court that the application of the lock-out rule in conjunction with the absolute insurer rule is unconstitutional.
Affirmed.
Hays, J., not participating. | [
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Per Curiam.
Petitioner Elgie Sanders was convicted by a jury of aggravated robbery and first degree battery and sentenced to prison terms of 40 years and 20 years consecutively. The terms were ordered served consecutively. We affirmed. Sanders v. State, 274 Ark. 525, 626 S.W.2d 366 (1982). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.
Three men, Shells, Thompson, and the petitioner Sanders were jointly charged with the aggravated robbery of three undercover police officers, and with first degree battery in the shooting of two of the officers in the course of the robbery. Testimony at trial indicated that the three officers negotiated a marihuana purchase from Shells and Thompson, who left to get the marihuana. When they returned, petitioner was with them. Both he and Shells had guns. Petitioner pointed his weapon at the officers and shots were immediately exchanged, with petitioner and two of the officers being struck.
Petitioner’s sole ground for postconviction relief is that his being sentenced for both aggravated robbery by force and battery is a violation of the constitutional prohibition against double jeopardy and Ark. Stat. Ann. § 41-105 (1) (a) and (2) (a) (Repl. 1977). He contends that Criminal Procedure Rule 37.1 (a) requires this Court to grant relief from the conviction and sentence for first degree battery since it was imposed in violation of the constitution and laws of this State. We agree for two reasons. First, both convictions grew out of a single act; and secondly, under the felony information in this case the proof required to prove one of the offenses necessarily included proof of the other.
In Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983), wherein the appellant was also charged with aggravated robbery and first degree battery, we held that Ark. Stat. Ann. § 41-105 (Repl. 1977) prohibits multiple sentences when the same act results in more than one offense. We also noted that when a criminal offense cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses under § 41-105. Akins, supra, citing Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). In Akins, a case similar to petitioner’s in which the victim of an armed robbery attempted to use his own pistol to prevent the robbery and was shot by the robber, we set aside the conviction and sentence for battery. We must afford petitioner the same relief. Count I of the felony information on which he was tried charged that he committed aggravated robbery by force. Count II charged that “in the course of and in furtherance of the felony [i.e. the aggravated robbery by force], he... caused serious physical injury____” As in Akins, the proof required to prove one offense necessarily included proof of the other. Therefore, in accordance with A.R.Cr.P. Rule 37.1 (a) the conviction and sentence for the lesser offense, battery in the first degree, must be set aside since it was imposed in violation of Ark. Stat. Ann. § 41-105 (Repl. 1977). The conviction and sentence for aggravated robbery are not disturbed. See also Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982).
Petition granted.
Hickman, J., concurs.
Adkisson, C.J., not participating. | [
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Per Curiam.
The appellant’s attorney, Allan Harrel, has filed a motion for a Rule on the Clerk. In the motion he admits that it was his fault that the record was tendered late. The attorney for the appellant miscalculated the date the record was due to be filed.
Pursuant to our per curiam concerning belated appeals in criminal cases, 265 Ark. 964 (1979), the Rule on the Clerk is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Richard B. Adkisson, Chief Justice.
In 1972 appellees, Billy Don and Dorothy Wright, agreed to purchase approximately 173 acres of land in Crawford County from Dr. M. J. Graham for $100,000 with $20,000 down and the remainder to be paid in installments. On August 20, 1975, appellant, Millard Wright (Billy Don’s father), handed over a $10,000 check to appellees. The check was made to the order of Dr. M. J. Graham “For Payment on land.” Billy Don Wright signed his name just below his father’s signature and handed the check over to Dr. Graham.
Apparently, sometime between 1975 and 1979 appellant demanded that appellees repay the $10,000 because on October 4, 1979, appellees wrote appellant a letter:
October 4, 1979
Mr. Millard Wright.
Concerning the 10,000. We can’t get it from Mr. M. J. Graham because he is 6 ft. under the ground.
You have a monthly income if you can’t live on it then we think you should go to a rest home and live. They will take care of you for the income you receive.
/s/ Billy Don Wright
/s/ Dorothy Wright
On April 30, 1981, appellant filed this lawsuit to collect the money. Appellees defended, contending that the money was either a gift or that the cause of action was barred by the three year statute of limitations for oral contracts. At trial, appellant testified that the money was a loan and that his son asked him to loan him the $10,000 because he was “in a tight.” Appellant further testified that the land was to stand good for the $10,000 and that his son was to pay it back whenever he needed money.
The chancellor held that Ark. Stat. Ann. § 37-206 (Repl. 1962) barred the action. This statute provides:
The following actions shall be commenced within three (3) years after the passage of this act, or, when the cause of action shall not have accrued at the taking effect of this act, within three (3) years after the cause of action shall accrue: First, all actions (of debt) founded upon any contract, obligation, or liability, (not under seal [and not in writing]), . . .
Appellant contends that this statute is inapplicable to this case because the debt, although initially barred by the statute of limitations, was revived by the October 4 letter. In McHenry v. Littleton, 237 Ark. 483, 374 S.W.2d 171 (1964) we held that a debt otherwise barred by the statute of limitations could be revived by a letter in which the debtor unequivocally recognizes the indebtedness as a subsisting obligation and makes no statement repelling the presumption that he intends to pay. Here, however, appellees’ October 4 letter does not recognize the indebtedness as a subsisting obligation and, therefore, falls short of providing a revival by acknowledgment as contemplated by McHenry, supra.
Appellant argues that the fraud of appellees tolled the statute of limitations and also alleges that a constructive trust should be imposed upon the land in his favor. However, appellant failed to plead or prove fraud. Nor was there sufficient evidence to satisfy the degree of proof required to establish a constructive trust. The rule is that constructive trusts must be established by clear and convincing evidence — something more than a preponderance. Neill v. Neill, 221 Ark. 893, 257 S.W.2d 26 (1953). We cannot state that the chancellor was clearly erroneous in her findings.
Affirmed. | [
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George Rose Smith, Justice.
In 1981 the principal appellee, Kathleen D. Burke, applied to the Alcoholic Beverage Control Board for permission to transfer her retail liquor outlet from its location in a shopping mall in Fayetteville to a new location on North Garland Avenue near the intersection of Highways 16 and 112. The application was opposed by the appellants — a school district and seven individuals — and by others who signed petitions opposing the application but did not otherwise participate in the proceedings. After a hearing the Alcoholic Beverage Control Board approved the transfer. This appeal from the circuit court’s affirmance of the Board’s decision was transferred to us under Rule 29 (1) (c). We affirm.
The appellants’ main argument for reversal is that the Board’s decision is not supported by substantial evidence. Ark. Stat. Ann. § 5-713 (h) (5) (Repl. 1976). The applicant’s testimony and exhibits show that about 12,000 people live within a one-mile radius of the proposed site; there is no liquor store within that area, which is devoted to both residential and commercial uses; the two nearby highways have a total traffic count of about 20,000 vehicles a day; other liquor stores are closer to public schools than this one will be; and the University, of Arkansas permits adult students to have alcoholic beverages in university housing. Twenty-four photographs show more than that many commercial buildings in the neighborhood, including filling stations, grocery stores, fast-food establishments, and various others. The school district’s protest was presented by the principal of a school that is about four tenths of a mile from the proposed site. She objected not so much to a liquor store as such but to any new business in the area, because increased traffic could be dangerous to pupils walking to school. The third witness who testified objected on those grounds and also the the presence of a liquor store a block and a half from his house.
The Board found that the proposed transfer would be to the “public convenience and advantage,” statutory language not further defined. Ark. Stat. Ann. § 48-301 (Repl. 1977). The reference to the public convenience and advantage evidently means that the interest of the general public is to be considered, not merely that of the applicant. See Gerst v. Cain, 388 S.W.2d 168 (Tex., 1965). Even so, such general language unquestionably invests the Board with much discretionary leeway in deciding whether to approve an application such as this one. Since the record contains affirmative proof supporting the view of each side, we must defer to the Board’s expertise and experience in cases of this kind. In that view there is substantial evidence to support the Board’s decision.
The appellants’ second argument is that the Board had no power to order a continuance on its own motion when an unforeseen question arose during the hearing. We think it fundamental that the Board’s statutory duty to hold a public hearing, Section 48-311 (E), carries with it the implied authority to interrupt the hearing when it is reasonable to do so. “The law necessarily contemplates unavoidable contingencies, illness of parties and witnesses, and similar causes which make it just to grant continuances and unjust to refuse them.” Williams v. Buchanan, 86 Ark. 259, 271, 110 S.W. 1024 (1908). In the absence of any explicit statutory prohibition of a continuance, the Board had the authority to act as it did.
We do not reach the appellants’ third argument — that the Board’s written decision did not include sufficient findings of fact — for the appellants have not abstracted the Board’s decision.
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Jack Holt, Jr., Chief Justice.
On August 28, 1990, the appellant, John Antonio Cole aka Tony Cole, was convicted of rape and carnal abuse in the second degree and sentenced as an habitual offender to forty years and ten years, respectively, in the Arkansas Department of Correction with the sentences to be served consecutively.
Cole alleges six points of error on appeal: 1) that the trial court erred in denying his motion for a directed veredict on the charge of rape, 2) that the evidence on the element of forcible compulsion was insufficient to support a conviction of rape, 3) that the trial court erred in denying his motion to suppress the introduction of evidence of HSV2 testing as the resulting prejudice outweighed its probative value in violation of A.R.E. 403, 4) that the trial court erred in admitting hearsay testimony that was not admissible as an excited utterance exception under A.R.E. 803(2), 5) that the trial court improperly applied the state of mind exception to the hearsay rule under A.R.E. 803(3), and 6) that the trial court improperly permitted the introduction of hearsay testimony because it was not offered to rebut an implied charge of recent fabrication.
SUFFICIENCY OF THE EVIDENCE
Cole asserts in his first and second points of error that the trial court erred in denying his motion for a directed verdict on the charge of rape and that the evidence on the element of forcible compulsion was insufficient to support a conviction of rape. However, he did not make a motion for a directed verdict at the close of the case.
Arkansas R. Crim. P. 36.21(b) provides:
Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evience will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
The sufficiency of the evidence issues raised in points 1 and 2 were thus waived by Cole’s failure to move for a directed verdict at the close of the case, and we decline to consider these issues on appeal. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991) (citing Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990) and Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1981)).
SUPPRESSION OF EVIDENCE OF HSV2 TESTING
As a third point, Cole argues that the trial court erred in denying his motion to suppress the introduction of evidence of HSV2 testing as the resulting prejudice outweighed its probative value in violation of A.R.E. 403. Rule 403 states that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Although the established rule is that corroboration is not required in a rape case, Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984), we held in Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980), that the trial court properly allowed articles of the defendant’s clothing to be introduced into evidence together with testimony that there were human bloodstains on the clothing where this evidence tended to corroborate the testimony of the rape victim, the police officers, and the medical examiner.
In this case, Cole emphasizes the inconclusive nature of the HSV2 (genital herpes) test results. However, Dr. Michael Young testified that Cole’s HSV2 antibody IGG tested positive and that “[b]ased on the lab reports that I saw, and having not examined him [when he had herpes lesions], I can say that probably, he had HSV2 some time in the past.”
Dr. Young further testified that the victim had been a patient of his for two and one half years. In October 1989, he had examined the victim during her annual physical checkup, and she had not exhibited any symptoms of the disease. The incident occurred later that month, on October 22, and Dr. Young examined the victim again as a result of the victim’s allegation.. Based on his examinaiton of the victim, her medical history, and positive HSV2 test results at that time, he determined that the victim had contracted genital herpes around the end of October 1989. As in Brewer v. State, supra, this evidence tended to corroborate the testimony of the rape victim, whose credibility had been placed into question by Cole, and the trial court’s admission of this evidence was not a manifest abuse of discretion.
EXCITED UTTERANCE EXCEPTION TO HEARSAY RULE
In his fourth point of error, Cole contends that the trial court erred in admitting hearsay testimony that was not admissible as an excited utterance exception under Rule 803(2). That rule provides that “[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness:... (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
We have recently held, in Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), that where a three-year-old declarant witnessed the brutal murder of his aunt, was returned home by the murderer about three hours later before his mother got home, slept fitfully and cried and screamed during the night, and made the statement when he first fully awoke the next morning, and where the declarant was crying and frightened when he told his mother what had happened, the trial court did not err in ruling that the child’s statement to his mother, and later to police, was admissible as an excited utterance under Rule 803(2). In that case, we listed numerous citations from other jurisdictions that expanded the time interval between an exciting event and an out-of-court statement when the declarant is a child and recognized the considerations summarized in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980):
The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of 803(2). Nor is it controlling that the [declarant’s] statement was made in response to an inquiry. Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the 803(2) exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. In order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. [Citations omitted.]
Here, the mentally retarded twenty-three-year-old victim was described by Dr. Young as having the mental capacity of a six or seven year old child. The victim’s teacher credited her with academic skills of an eight to eleven year old child. Thus, we have no problem in applying the rationale of our holding in Smith v. State, supra, to the facts of this case.
The victim lived in a home for adults with mental disabilities, and the incident occurred on a Sunday afternoon in the victim’s room at. the home. The following morning in class, the victim began talking very loudly to herself about the incident. Her teacher “whisked” her out of the classroom and took her to the program coordinator, who noted that she was frightened and upset. The administrator for the home was also informed of the incident. The victim told the three women at that time that Cole had told her not to tell that he had come into her room and wanted to play tricks. All three of the women testified that the victim was upset and excited when she told them of the incident.
At that time, the three women were not aware that the victim had been physically abused by Cole. It was not until Thursday night that the victim burst into the program coordinator’s office and excitedly told her the rest of the story that Cole had placed his penis inside her buttocks and “taken her temperature.” However, the emotional condition of the victim is unknown during the interval from her initial reporting of the incident on Monday until the following Thursday, four days after the incident.
The program coordinator testified as follows:
Q What did [the victim] tell you that Wednesday night?
A Thursday night. This was my night at the home. She told me basically, the same story she had on Monday, but she began to tell what I believe is the rest of the story. She indicated that there had been some genital contact. That she was told not to tell. That it hurt. I asked her if she asked him to stop and she said, T did, but he just kept on.’
Given the mental faculties of the victim and her excited and upset condition on the morning following the incident when she first spoke of the incident, we find that the three women’s testimony about what the victim told them on Monday morning comes within the excited utterance exception to the hearsay rule encompassed in Rule 803(2).
We do not, however, stretch the exception to cover the victim’s statements made on Thursday. In Smith v. State, supra, we noted that “the interval between a statement and an event is governed by the particular circumstances of each case. ‘The general rule is that an utterance following an exciting event must be made soon enough thereafter that it can reasonably be considered a product of the stress of the excitement, rather than of intervening reflection or deliberation.’ ” D. Binder, Hearsay Handbook § 2.03 (1983). Continuing emotional or physical shock and loss of consciousness, unabated fright, isolation and other factors may also prolong the time, “making it proper to resort to Rule 803.(2), despite long lapses of time”. Smith v. State, supra (quoting 4 D. Louisell, Federal Evidence § 439 (1980).
A rationale for relaxing the general rule was stated in People in Interest of O.E.P., 654 P.2d 312 (Colo. 1982) as follows: “The element of trustworthiness underscoring the excited utterance exception, particularly in the case of yound children, finds its source primarily in the ‘lack of capacity to fabricate rather than the lack of time to fabricate.’ ” Citing to Fed. R. Evid. 803(2) Advisory Committee Note.
While we cast no aspersions on the veracity or credibility of the victim’s statements made four days after the incident, we are unable to except them from the hearsay rule under the excited utterance exception. The record is devoid of any evidence as to the victim’s emotional state during the lapse of time between the victim’s excited utterances on Monday and her further declarations made on the following Thursday. There has been no showing that the victim was under continuing emotional shock, suffered from unabated fright, or remained in a state of excitement and agitation during this interval. Furthermore, there has been no showing that a person of the victim’s diminished mental capacities lacked the capacity to fabricate. The only facts we have before us are that the victim made two complaints and there was an unexplained three day interval between them.
For these reasons, we cannot assume or say that the declarant’s utterances on Thursday following the Sunday incident can reasonably be considered a product of the stress of the excitement, rather than of intervening reflection and deliberation.
STATE OF MIND EXCEPTION TO THE HEARSAY RULE
Furthermore, these latter statements are not admissible as a state of mind exception under Rule 803(3), Cole’s fifth point of error. Rule 803(3) provides as follows:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * * *
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
The three women’s testimony of what the victim said four days after the incident about what Cole did to her in her room is inadmissible as being statements of the victim’s memory about the past, not statements of her then-existing state of mind. See State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1979).
REBUTTAL TO AN IMPLIED CHARGE OF RECENT FABRICATION
Finally, Cole contends that these latter statements are inadmissible as rebuttal to an implied charge of recent fabrication under A.R.E. 801(d)(l)(ii), which provides as follows:
(d) Statememnts Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive ....
This exception is inapplicable simply because any motive that the victim might have had existed prior to her making her initial statements on the day following the incident. In Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977), we stated that the principle applies when there is an express or implied charge that a witness has fabricated a statement that he is now making under oath. It is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence.
Here, the principle simply has no application because the victim had the same motive for fabrication when she made the allegation as she had when she testified in the case. See also Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984).
CONCLUSION
Consequently, the three women’s testimony that the victim told them on the Monday morning following the incident that Cole had come into her room and wanted her to play tricks, but had told her not to tell anyone, is admissible and corroborates the victim’s testimony at trial that Cole anally penetrated her with his penis.
Arkansas Code Ann. § 5-14-105 (1987) addresses carnal abuse in the second degree and provides that “(a) A person commits carnal abuse in the second degree if he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is incapable of consent because he is mentally defective or mentally incapacitated.” Thus, we affirm Cole’s conviction of carnal abuse in the second degree.
However, that portion of the program coordinator’s testimony that the victim told her on Thursday that she had told Cole to stop, but he had “just kept on,” is inadmissible as it was the result of statements she made some four days after the incident in question.
Arkansas Code Ann. § 5-14-103 (1987) addresses the crime of rape and provides that “(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person: (1) By forcible compulsion . . . .” Since the program coordinator’s testimony about what the victim told her on Thursday night is the only evidence in the record that purports to show that Cole used forcible compulsion in his actions, its inadmissibility forces us to reverse Cole’s conviction of rape and remand to the trial court. See Burks v. United States, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978); and United States v. Harmon, 632 F.2d 812 (9th Cir. 1980).
Affirmed in part; reversed and remanded in part.
Hays and Brown, JJ., concur in part and dissent in part. | [
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Jack Holt, Jr., Chief Justice.
This case presents the question: When a proper petition is filed under Act 445 of 1983, as amended, codified at Ark. Stat. Ann. §§ 80-4601 — 80-4612 (Supp. 1985), with a county board of education for annexation of school districts, must the Board annex districts that are contiguous? The answer is “yes”, and we affirm the holdings of the lower court. Our jurisdiction is pursuant to Supreme Court Rule 29(l)(c).
This action began on May 25,1985, when the Ross Van Ness School Board filed a petition with the Chicot County Board of Education to annex its district to the Eudora School District, a contiguous district, pursuant to Ark. Stat. Ann. § 80-4609(c). On June 10,1985, a majority of the Ross Van Ness patrons petitioned the Chicot County Board of Education to dissolve Ross Van Ness and to annex its district to a noncontiguous area, the Lakeside (Lake Village) School District, pursuant to Ark. Stat. Ann. § 80-418 (Repl. 1980). A hearing was held on June 24,1985, at which the Board of Education adopted the Ross Van Ness patrons’ petition. The Ross Van Ness and the Eudora School Boards appealed the board of education’s order to the Chicot County Circuit Court. The circuit court held that Act 445 of 1983, as amended, mandated annexation to adjoining districts and gave the board no discretion to deny the petition of the Ross Van Ness School Board since the Ross Van Ness School District adjoined the Eudora School District and did not adjoin the Lakeside (Lake Village) District. The lower court then set aside the board of education’s ruling and ordered that the Ross Van Ness School District be annexed to the Eudora School District. From these adverse rulings the appellants appeal and the appellees cross appeal.
Act 445 of 1983 is known as the Quality Education Act. The Act’s primary goal is the elimination of all public elementary and secondary schools that fall below the minimum standards for accreditation as set forth by the State Board of Education. Section 2 of Act 445, codified as Ark. Stat. Ann. § 80-4602(a), provides that all schools failing to meet the minimum standards shall be eliminated no later than June 1, 1987, and districts operating such schools shall be dissolved and annexed to another district or districts which comply with the minimum standards. This statute also states, “The County Board of Education shall abolish said districts and shall annex the territory of such districts to the receiving district or districts in a geographically contiguous manner.”
Section 9 of Act 445 of 1983, amended by Act 61 (First Extraordinary Session of 1983) and codified as Ark. Stat. Ann. § 80-4609, states:
(c) Between June 1, 1984, and June 1, 1987, any school district may be annexed to one or more adjoining school districts by petitioning the county board of education of the county in which such district is administered to order the annexation. The annexation request may be by resolution of the board of directors of the district or by a petition signed by a majority of the qualified electors in the district. Upon receipt of a request for annexation, the county board of education shall hold a hearing on the request and shall then order the annexation of the district to one or more adjoining school districts. If the county board of education fails to act within sixty (60) days of receipt of a request for annexation, the petitioning district may request the circuit court to issue a writ of mandamus to said county board.
Inasmuch as the Ross Van Ness School Board petitioned for annexation under Act 445, as amended, the Act left the Chicot County Board of Education without discretion to deny the petition of the school board requesting annexation to the adjoining Eudora School District. Section 80-4602(a) and section 80-4609(c) state that the county board of education shall order annexation to adjoining districts. The word “shall” when used in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. Arkansas State Highway Commission v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958). To require annexation to the adjoining districts is reasonable and practical. Annexation to the adjoining districts, among other things, promotes the sharing of physical plants among the schools, facilitates the objectives of Act 445, limits the distance to be travelled by students, and maintains existing communities.
We affirmed annexation to an adjoining school district across county lines under Act 229 of 1969, the precursor of Act 445 of 1983, in Saline County Board of Education v. Hot Springs Board of Education, 270 Ark. 136, 603 S.W.2d 413 (1980), recognizing that, in matters of education, our constitution (art. 14, § 1, as amended) vests in the legislature the duty and authority to make provision for the establishment, maintenance and support of a common school system in our state.
We, therefore, conclude that once a proper petition is filed with a county board of education under Act 445, annexation to adjoining districts is mandatory and such filings preempt utilization of other enactments, such as § 80-418. Accordingly, the Chicot County Board of Education did not have discretion to deny the Ross Van Ness School Board’s petition.
The appellee raises several issues on cross appeal; however, in light of our holding these points need not be addressed.
Affirmed.
Hays and Purtle, JJ., not participating. | [
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Robert H. Dudley, Justice.
Appellant, Borg-Warner Acceptance Corporation, filed a complaint against the appellee, Jefferson L. Kesterson, seeking a deficiency judgment of $50,433.54, plus costs, interest, and attorney’s fees. The complaint was based upon a retail installment sales contract. On August 10, 1983, after the appellee had filed an answer, the appellant mailed requests for admissions to the appellee’s attorney. The requests included the following: “Please admit that the Defendant [appellee] is indebted to the Plaintiff [appellant] in the sum of $50,433.54, plus interest thereon at the rate provided by the Contract until paid in full.” The appellee did not answer the requests for admissions within 30 days after service, but finally responded on October 5, 1983. No excusable neglect, unavoidable casualty, or other just cause was pleaded as a reason for the untimely response. The appellant subsequently filed a motion requesting that the matters contained in the requests for admissions be deemed admitted and praying for summary judgment in the amount of $50,433.54, plus interest and costs. The trial judge refused to deem the requests admitted and denied the motion for summary judgment. A jury trial on the issue of the debt resulted in a verdict for the appellee. Appellant argues that the trial court erred in refusing to deem the requests admitted, in denying the motion for summary judgment, and in setting the matter for jury determination. The argument has merit, and accordingly, we reverse and instruct the trial court to grant judgment in favor of the appellant.
ARCP Rule 36 provides in pertinent part:
(a) Request for Admission. A party may serve upon any other party written request for the admission, for purposes of the pending action, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact, ....
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, ....
(b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.
(Emphasis added.)
ARCP Rule 6(b)(2) provides broadly for extensions of time to respond in instances of excusable neglect. It applies to requests for admissions. Barnett Restaurant Supply, Inc. v. Vance, 279 Ark. 222, 650 S.W.2d 568 (1983). Excusable neglect was neither pleaded nor proven in this case, and the response was not timely filed. In such cases we have consistently held that an untimely response results in an admission. In Womack v. Horton, 283 Ark. 227, 674 S.W.2d 935 (1984), we explained:
The policy of this court through the years has been to require compliance with the rule governing responses to requests for admissions. Barnett Restaurant Supply, Inc. v. Vance, 279 Ark, 222, 650 S.W.2d 568 (1983), citing Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980); White River Limestone Products Co. v. Mo. Pac. Rd. Co., 228 Ark. 697, 310 S.W.2d 3 (1958). If the responses are not on time or are faulty for some other reason, such as not being signed by the parties or being inadequate and deficient, this court has made it a practice of deeming the requests to be admitted. Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980).
Accordingly, the case must be reversed and remanded for entry of the judgment.
We briefly discuss appellant’s other assignment of error because it appears to be a matter of some confusion. Appellant attached a certificate of no defense to its complaint. See Ark. Stat. Ann. § 27-1142 (Supp. 1985). Appellee did not file a timely affidavit of a good and valid defense. See Ark. Stat. Ann. § 27-1142. The appellant contends that the trial court erred in refusing to strike the answer. .See Ark. Stat. Ann. § 27-1142 (Supp. 1985). The trial court was correct.
ARCP Rule 8 sets out the required content of a complaint and of an answer. It is a rule of procedure and not a matter of substantive law. Ark. Stat. Ann. § 27-1142 does not conform with ARCP Rule 8, and therefore, it is deemed to be superseded even though it is not so listed in our per curiam order of December 18,1978. See Venable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985). A suit to collect a debt is not a special proceeding as contemplated by ARCP Rule 81(a), and therefore, it is not subject to a different statute.
Reversed and remanded.
Purtle, J., not participating. | [
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David Newbern, Justice.
The appellants were convicted of rape of Theresa Baraque. Their convictions were reversed, and they were tried a second time. In the second trial the doctor who examined Theresa, and who testified in the first trial, Lackey v. State, 283 Ark. 150, 671 S.W.2d 759 (1984), did not testify. His testimony was read from the transcript of the first trial over the appellants’ objection. The appellants were again convicted, and they appeal contending, among other points, that the state should not have been allowed to read the transcript of the doctor’s prior testimony and that this error was prejudicial to the appellants’ case.
The state’s brief says that the efforts of the prosecution to obtain the doctor as a witness for the second trial . . could well [be found] ... to have been, in the words of the court in Satterfield v. State, 248 Ark. 395, 399, 451 S.W.2d 730, 733 (1979), ‘far too feeble to constitute “good faith effort.” ’” In view of this concession, we need not review here the prosecution’s efforts to procure the doctor’s presence. As in Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980), the search for the doctor who had examined the alleged victim, testified in the first trial, and then moved from Arkansas to another state, came too late to permit use of the Interstate Rendition of Witnesses Act, Ark. Stat. Ann. §§ 43-2005 through 43-2009 (Repl. 1977). But in Holloway v. State, supra, we held the erroneous admission of the doctor’s testimony was not prejudicial, and we affirmed the rape conviction. In response to Holloway’s argument that the doctor’s prior testimony should have been ruled inadmissible, we said:
The doctor’s testimony was, however, not critical. The State’s misconduct was, therefore, harmless error. He only testified the women had recently had sex. A rape victim’s testimony need not be corroborated. See, Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973). Satterfield, supra, does not demand reversal. There, the missing witness was a suspected accomplice and his presence particularly important. We find no prejudice here. The witness had already said all he could be expected to say.
The same holds true regarding the argument that the testimony from the first trial was not admissible because the witness had not been properly and fully cross-examined. Holloway’s defense was he did not rob the Leather Bottle, nor rape the women. What more could have been asked of the doctor who said the women had had sexual intercourse within six hours?
Just as we believe there was no violation of the Uniform Rules of Evidence, we also believe there was no violation of the confrontation clause of the Sixth Amendment. That clause is not absolute. It does not require that every criminal defendant be allowed to confront every witness against him every time he is tried. . . . Neither was due process violated. [268 Ark. at 28-29, 594 S.W.2d at 4.]
In the case before us, the doctor’s testimony was more extensive than the doctor’s testimony in Holloway v. State, supra. Here, the doctor’s prior testimony, which was read to the jury, described at length what the victim had said about the details of the alleged rape on the night she was examined by him. He testified he had found blood and sperm in the vaginal area and that Theresa was crying and appeared to him to be upset, and that he prescribed valium to calm her anxiety. On cross-examination he testified he found no evidence of bruises, lacerations, or other trauma usually associated with rape. He said further that the sperm he examined from Theresa was non-motile, and then he testified at some length about the implications of its non-motility, noting that sperm can remain motile up to five days in the vagina. He testified about the fact that Theresa’s blood pressure was normal and about the presence of the blood being possibly related to the menstrual cycle.
Given the range of the doctor’s testimony read from the first trial transcript, we cannot agree that Holloway v. State, supra, is controlling. While we do not renege on our conclusion that the Sixth Amendment does not require confrontation with every witness every time a criminal defendant is retried, we find this witness’ testimony to have been so significant as to require that the jury in whose hands the fate of the appellants rested be allowed to observe the confrontation so as to see the witness’ demeanor and make its determinations with respect to the matters addressed by him. In Barber v. Page, 390 U.S. 719 (1968), the Supreme Court said:
The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. [390 U.S. at 725.]
Where the prior testimony of the witness is as extensive and significant as that of the doctor in this case, the reading of it to the jury, where the state’s showing of the unavailability of the witness is insufficient, is prejudicial.
As there may be another trial of these appellants, we will mention briefly two other points argued. The appellants wanted to question Theresa about her prior sexual conduct. They argue it was relevant because of the doctor’s statement that the sperm he found was non-motile and that sperm could remain motile up to five days in the vagina. The court properly denied their motion, as it was well within his discretion under Ark. Stat. Ann. § 41-1810.2 (Rep. 1977 and Supp. 1985) to determine the relevancy of the question and balance it against its possibly prejudicial effect on the prosecution’s case. Cf. Bobo & Forrest v. State, 267 Ark. 1, 589 S.W.2d 5 (1979).
Theresa’s testimony was that Susan Lackey said to her she was assisting her husband Stanley Lackey in raping Theresa because it was the only way she could keep her husband “alive.” The prosecution produced evidence that an ambulance had been called to the Lackey’s home the night before the rape because Stanley’s mother thought he had taken an overdose of a nonprescription drug. The appellants argue this testimony is inadmissible because it shows only an unrelated prior bad act on the part of Stanley. The state contends, and we agree, it is relevant to showing Susan’s motive for participation in the crime. Even if motive is not an element of the crime charged, it may be proven. Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976).
Reversed.
Purtle, J., not participating.
Holt, C. J., and Hays, J., dissenting. | [
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Robert H. Dudley, Justice.
The incorporation of the Town of Alexander was granted in 18 87 by the County Court of Pulaski County. In 1982, the Town of Alexander, ex parte, petitioned the Circuit Court of Saline County for an order declaring that the town was incorporated in both Saline and Pulaski Counties. The petition was filed in order to obtain turnback funds from Saline County as well as from Pulaski County. Although there was no notice of any type, the Circuit Court granted the order and held that Alexander was incorporated in both counties. In 1984, appellant, William Parker, filed the instant suit against Saline County and the County Judge of Saline County. It was filed in the Chancery Court of Saline County and the prayer recites:
WHEREFORE, plaintiff prays that this Court immediately issue its Order declaring that the Saline County Circuit Court Order of May 17; 1982 is correct, that the corporate limits of Alexander extend into Saline County as shown by the plat filed with the Secretary of State, that the County Judge and his agents, servants and employees should recognize the established limits of Alexander, costs and all proper relief.
The Chancery Court took jurisdiction of the case and ruled that the County Judge would not be compelled to follow the Circuit Court order because Alexander exists only in Pulaski County. We reverse and remand since the Chancery Court was completely without subject matter jurisdiction.
The petition praying that the County Judge be compelled to do an act is a petition for a writ of mandamus. A writ of mandamus is defined as “an order of the Circuit or Chancery Court granted upon the petition of an aggrieved party or the State when the public interest is affected, commanding an executive, judicial, or ministerial officer to perform an act, or to omit to do an act, the performance or omission of which is enjoined by law.” Ark. Stat. Ann. § 33-102 (Repl. 1962). Without question, we have often held that a county judge may be compelled by mandamus to perform an act. See, e.g., Merritt v. School District, 54 Ark. 468, 16 S.W. 287 (1891). However, that part of Ark. Stat. Ann. § 33-101 (Repl. 1962), which declares that the Chancery Court shall have subject matter jurisdiction to hear a petition for a writ of mandamus is unconstitutional. Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 111 (1970) overruling Higgins v. Barnhill, 218 Ark. 466, 236 S.W.2d 1011 (1951). The reason it is unconstitutional is the Arkansas Constitution gives the General Assembly the authority to create courts of chancery, but only authorizes the General Assembly to vest chancery courts with such jurisdiction as was known at the time the constitution was adopted, and the writ of mandamus was a common law writ, unknown to equity, at the time of the adoption of the Constitution of Arkansas. Nethercutt v. Pulaski County Special School Dist., supra. The Chancery Court, therefore, was wholly without subject matter jurisdiction to hear the petition in the case now before us.
The decree rendered by a court wholly without subject matter jurisdiction is vacated and set aside, but the original petition is not dismissed. See Taylor v. Bay St. Francis Drainage District, 171 Ark. 285, 284 S.W. 770 (1926). The original petition may be transferred to circuit court.
Reversed and remanded.
Purtle, J., not participating. | [
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Steele Hays, Justice.
Marvin Henderson appeals from a conviction of aggravated robbery and theft of property upon the single ground that the evidence against him is insufficient as a matter of law. We affirm the judgment.
Three employees of Bojangles’ restaurant in Little Rock testified that on the morning of July 15, 1984 an armed man wearing a ski mask approached them as they opened the restaurant for business. They said he guided them to the safe, knew the exact location of money bags, and gave other indications that he was familiar with the restaurant and its operation.
All three employees identified appellant as the robber. They were able to recognize him by an oblong shaped head under a tight fitting ski mask and by his voice, described as “very crisp and clear.” They said the man was relaxed and sure of himself. One of the employees testified that as the robber was collecting the money he realized from his voice and the peculiar shape of his head the robber was a fellow student at Philander Smith College. The witness identified appellant as the same man. The state proved as well that appellant had been a manager trainee at Bojangles in 1983.
Appellant argues that the verdict must be supported by substantial evidence as defined in Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985) and Boone v. State, 282 Ark. 274, 688 S.W.2d 17 (1984). He maintains that identification by voice and the shape of one’s head fails to constitute substantial evidence as a matter of law. We considered a similar argument in Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984), and held the proof was sufficient to submit the case to the jury.
The proof in this case was that the appellant had a distinctive voice and that he spoke frequently to the employees as he shepherded them around the restaurant, first to the safe, then to the walk-in. That identifying feature was reinforced by testimony that the man who robbed the restaurant had a peculiarly shaped head, described as oblong and visible under a close fitting ski mask. There was also testimony that the robber knew the location of the safe and contents which, coupled with the fact that appellant had been employed by Bojangles some months earlier, renders the proof of identification of appellant as more than sufficient to submit the issue to the jury. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977).
Affirmed.
Purtle, J., not participating. | [
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David Newbern, Justice.
The appellant pleaded guilty to and was convicted of rape, nine counts of burglary, and eight counts of theft of property. The circuit judge who accepted the plea and entered the conviction later received a letter in which the appellant alleged his counsel told him that his sentences would be concurrent rather than consecutive and that this constituted “misrepresentation.” The judge treated the letter, which said it was a habeas corpus petition, as a petition for relief under Ark. R. Crim. P. 37 and denied it without a hearing. The only issue raised in this appeal is whether it was improper to deny relief without holding a hearing. We hold it was not improper, and thus we affirm.
Rule 37.3(a) provides:
If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.
Rule 37.3(c) provides that if the motion is not decided in accordance with subsection (a) a hearing shall be granted. The clear implication is that if the motion can be decided on the record no hearing is required. If the record does not show conclusively that the motion should be denied, a hearing must be held. Cusick v. State, 259 Ark. 720, 536 S.W.2d 119 (1976).
When the judge inspected the record in this case, he found a statement of the plea arrangement, signed by the appellant, his counsel and a deputy prosecutor providing clearly that the sentences of ten years for rape and twenty years for the other offenses were to run consecutively but concurrently with “any Missouri convictions.” In open court the deputy prosecutor said the Arkansas sentences were to run consecutively. The record shows the court took the sentencing recommendation under consideration for a week. When he announced his decision to accept the plea, he clearly stated the ten years for rape and the twenty years for the other offenses were to be served consecutively. The record thus clearly showed that the appellant was or should have been aware that his sentences were to run consecutively regardless of what his counsel might have told him.
The appellant relies on a garbled statement by his counsel, which appears in the record, which could be interpreted as showing his counsel understood the Arkansas sentences would run concurrently. In view of the clear showing that the appellant, the court, and the prosecution understood to the contrary we hold this record shows conclusively that the petition is without merit.
In addition, the petition is deficient as it does not state that the appellant would not have pleaded guilty but for the misrepresentations alleged. He has shown no prejudice. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).
Although it was not argued in this appeal we note that the trial judge did not make specific reference to the parts of the record he relied on to deny the petition as required by the rule, and that is reversible error. Robinson v. State, 264 Ark. 186, 569 S.W.2d 662 (1978). However in Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979), we held that if the entire record conclusively shows that the petition was without merit we will affirm, even though the trial court failed to make written findings of fact specifying the parts of the record that were relied upon to sustain the denial.
It was not error for the trial judge to deny the petition without a hearing.
Affirmed.
Purtle, J., not participating. | [
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George Rose Smith, Justice.
The appellant was charged with theft by receiving, was found guilty, by Special Judge Laster sitting without a jury, and was sentenced to three years’ imprisonment. The one argument for reversal is that the trial judge was in error in taking into account Russell’s failure to testify in reaching the conclusion that Russell was guilty. The Court of Appeals transferred the case to us.
The State key witness was Mark Goodrum, but Judge Laster said when both sides had rested that he was highly suspicious of Goodrum’s testimony. He went on to say: “There is a great deal here that is unexplained to me. In fact, the case should have been more thoroughly developed. . . . My opinion of Mr. Goodrum’s testimony does not negate culpability of Mr. Russell absent an explanation. We used to call it possession of stolen property. And if you are in possession of stolen property without a reasonable explanation, which I have heard none, this does not give the Court but one alternative, and that is to find him guilty. Now, I am going to order a pre-sentence report.” The judge then announced his finding of guilt and concluded by saying to Russell: “And you will report to the probation officer to complete a pre-sentence report. One thing that troubles me about you is that you didn’t take the witness stand. Now, that is great tactics before a jury, but it is almost useless before a trial lawyer. And this is the reason I am not going to sentence you today. Be back on May 20th at 8:30 in the morning.”
We are unable to say that the judge’s comments about the accused’s failure to testify were directed only to the need for a pre-sentence report. The remarks also indicated that the judge felt that the accused’s silence left the court with no alternative to a finding of guilt. In Griffin v. California, 380 U.S. 609 (1965), the trial judge had instructed the jury that if there was evidence of facts against the defendant which he could reasonably be expected to deny or explain because of facts within his knowledge, the jury might take his failure to testify into consideration as tending to indicate the truthfulness of such evidence. In reversing the conviction the Supreme Court said:
For comment on the refusal to testify is a remnant of the “inquisitorial system of criminal justice,” . . . which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. . . . What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.
Although the Griffin case was an appeal from a jury trial, what the court condemned was a penalty “imposed by courts”; so the Court’s reasoning applies to the present situation. When we view together the trial judge’s references to there being a great deal that was unexplained, to the need for a more thorough development of the proof, to the court’s having only the alternative of a finding of guilt, and to a failure to take the witness stand as being great tactics before a jury but not before a trial lawyer, we cannot fairly say that Russell’s election not to testify was not a factor in the judge’s determination of guilt. We realize, of course, that jurors and trial judges and appellate judges do consider the silence of an accused — that is something no one could expel from his mind — but when that consideration is made a matter of record, it cannot be disregarded.
The State argues that no objection was made to the court’s remarks, but obviously an objection would have been futile. A bell cannot be unrung, nor ink erased from the snow. For that reason it goes almost without saying that a retrial must be before a different judge.
Reversed and remanded.
Purtle, J., not participating. | [
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George Rose Smith, Justice.
The appellant, Desmond Bryan, now aged 67, was charged with rape in that he had engaged in deviate sexual activity with a six-year-old boy. Ark. Stat. Ann. § 41-1803(l)(c) (Repl. 1977). The jury found Bryan guilty and imposed a life sentence. Three points for reversal are argued.
The only evidence introduced by Bryan’s court-appointed trial counsel was a report of a psychological evaluation of Bryan made in September, 1984, three months after the offense. The examining psychologist stated in his report that Bryan was vague about the various charges of sexual misconduct that had resulted in his being in prison for 11 years. It is argued that the trial court should have excluded that reference to prior offenses, even though defense counsel offered the report and made no such request. Not only was the asserted error invited by the defense, doubtless in the belief that the reference was offset by the rest of the evaluation; it was not the trial judge’s responsibility to censor the five-page report before it was admitted, by stipulation.
A second argument questions the sufficiency of the evidence. For several weeks before the day of the offense the child’s parents had allowed him to associate with Bryan. On that day the parents were alerted by a stranger to the possibility of misconduct by Bryan. The father ran to Bryan’s nearby residence and entered the back door without knocking. Upon a bed by the door the child was lying on his back with his pants down to his knees. The father at first testified that Bryan was performing oral sex on the boy, and when the door opened “he started to raise up and . . . as he got his head about this far from what he was doing, he took his hand and wiped his mouth across like this.” When the witness was then asked if he could see whether Bryan’s mouth was actually in contact with the child’s penis, he could only say that the best picture he had in his mind was that Bryan’s mouth was about two inches above it and was in the motion of coming up.
That evidence is sufficient to support the conviction for rape by deviate sexual activity, which must under the statute have involved a penetration, however slight, of Bryan’s mouth by the child’s penis. AMCI 1803, which was given. When the jury considered the two-inch distance described by the witness, the upward movement of Bryan’s head, and his action in wiping his mouth, the jury could have been convinced that the necessary physical contact had occurred. There was substantial evidence to support that conclusion.
Third, the father was permitted to testify over objection that right after the occurrence he questioned his son, who made statements which the trial court admitted into evidence as excited utterances. Uniform Evidence Rule 803(2). It is now argued, as it was below, that such utterances should not have been introduced without a preliminary showing that the six-year-old child was competent to testify. No such showing was necessary, as we explained in Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 S.W. 1053, 14 Ann. Cas. 48 (1908). The reason is that although the hearsay statement lacks the safeguard of having been made under oath, the probability of truth inherent in an excited utterance supplies a reliable safeguard.
We find no prejudicial error in other rulings that have been brought to our attention.
Affirmed.
Purtle, J., not participating. | [
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Steele Hays, Justice.
This appeal calls for an interpretation of a contract for the sale of land between L. W. and Carutha Johnson, appellants, and Clarence and Rosie Carr, appellees. The contract was made in 1966 and provided that:
for an additional ten dollars and other good and valuable consideration, . . . the sellers shall have the option to repurchase the real property involved in this contract in the event purchasers decide to sell ... in the event the purchasers desire to sell. . . they shall give the sellers written notice of their desire to sell and sellers shall have sixty days from the date of receipt of notice in which to avail themselves of this option to purchase. (Our emphasis).
The contract said the price of the land was to be, “not higher than the appraised value by two appraisers to be selected by the sellers and purchasers.” In January, 1976, the Johnsons delivered their warranty deed to the Carrs and the contract was incorporated into the deed.
On September 17, 1982, Mr. Carr wrote to Mr. Johnson as follows:
Mrs. Carr and I are seriously considering selling the North Cedar property we acquired from you in 1966. If you are interested in reacquiring this property, please call us or contact us by mail within ten days after receipt of the letter.
Through his attorney, Johnson wrote Carr that he wanted to exercise the option. Carr responded to the Johnsons’ letter on September 28:
Our attorney has informed us the option provisions . . . are no longer valid ... it is his opinion that the option expired when the terms of the contract were performed. This is the position we will take in this matter. Nevertheless, we will sell you the property pursuant to the following conditions.
1. Make us a serious offer within 5 days upon receipt of this letter.
2. We promise to negotiate seriously in reaching a mutual agreement.
3. We will consider a land contract with a substantial down payment.
4. We will also consider a subordination clause if a land contract is used.
5. If an agreement is reached, sale must be finalized in 6 working days. (Our italics.)
Johnson made an offer of $8,000, but got no response and when the Carrs refused to negotiate any further, the Johnsons sued for specific performance. The court found the option agreement violated the rule against perpetuities and dismissed the case. The Johnsons appealed and we reversed, finding no violation of the rule. Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161 (1985). On remand, no additional testimony was taken, and the court dismissed the complaint, holding the Carrs had not manifested an “intent and desire to sell the property involved by unconditionally offering the same to plaintiffs.”
This option to repurchase is not strictly an option, but is what is usually referred to as a preemptive right or a right of first refusal. See Corbin On Contracts, § 261 (1963). The right creates an option based on a condition precedent and ordinarily promises that before offering the property for sale or accepting an offer from another, the owner will first offer the property to the optionee at the offered price or at some predetermined price. The wording of these contracts, however, is critical and will vary from contract to contract, thereby affecting the specific right the option holder has. Id. § 261, 261 A. “Such is a Contract for a First Refusal, although the Right that it creates may be described in other terms. Such terms are ‘First Right to Buy,’ ‘Right of Preemption,’ ‘First Privilege to Purchase,’ ‘First Right and Option’. In no case are the legal relations of O and B [owner/ buyer] determinable from the name alone. In all cases, the interpretation requires knowledge of the entire context, context of facts as well as context of words.” Id. § 261 A.
We have not construed such a contract, but cases from other jurisdictions are informative in dealing with the contract language. In New Haven Trap Rock Company v. Tata, 149 Conn. 181, 177 A.2d 798 (1962), the option to repurchase was almost identical to the one in our case except for the verb: If the buyer “shall consider selling said premises,” notification must be given the seller to repurchase. In discussing this provision the court said:
The plaintiff and the defendants agree that the provisions in the deed relating to repurchase by the plaintiff created a preemptive right in the plaintiff rather than a strict option. In this case, however, the wording of the provision differs materially from that which is generally used and is cited in the cases and authorities upon which the defendants rely. Generally speaking, a preemption does not give a preemp-tioner the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the preemptioner at the stipulated price, [cites omitted]. Here, it was necessary only for Tata to give thought to or entertain the idea of selling. He did not have to decide to do so.
The court found the option triggered. While there were other considerations in the case that may have been more pivotal in the court’s decision than the construction of the language, their approach to the language is nevertheless instructive.
In Long v. Wayble, 48 Or.App. 851, 618 P.2d 22 (1980), the contract read, “Lessor agrees to give lessee first right of refusal on purchase of this property. . .at an asking price of $35,000.” The lessor did not notify the lessee of any intent and entered into a listing agreement asking $49,000. The lessee attempted to exercise his right of first refusal and the owner then withdrew the property from the market and declined to sell to plaintiff for less than $45,000. The court stated that the dispute in the case concerned whether the act of listing the property for sale satisfied the condition precedent to the lessee’s right to purchase the property — that the lessor be willing to sell. The lessor contended that listing the property was not an offer to sell, but merely an invitation to make an offer and that the lessee’s right did not come into play until some third party made an offer acceptable to him.
The Wayble court distinguished the case before it from those where the right of first refusal does not specify a particular price at which the owner would be willing to sell, should he later decide to do so. The court said:
In such cases, the owner’s willingness to sell is conditioned upon getting an acceptable price for the property at the time he makes the decision to sell and an offer from a third party is necessary to establish that price. . . .In this case, we conclude that the clause is clear that, if defendants decided to sell the property at all, they would first offer it to plaintiff for $35,000. (Our emphasis.)
That court then found sufficient evidence, i.e. the signed agency authorization to sell the property and the listing agreement which authorized the realtor to accept a deposit and create an escrow for closing. The court held, in effect, that a willingness to sell only at a higher price or not at all, is still a manifestation of an intent to sell. The court said, “The fact that defendants may, in retrospect, have made a bad bargain is immaterial.”
In Turner v. Shirk, 49 Ill.App.3d 764, 7 Ill.Dec. 461, 364 N.E.2d 622 (1977), the court found a “desire to sell” demonstrated by a decision to hold an auction and putting a “for sale” sign on the premises. The court found it was not necessary to prove the defendant would sell only at a specific price. “The right contained in the sale notices to reject all bids does not demonstrate a lack of desire to sell, but merely an unwillingness to accept a low price.”
Turning to this case, we believe there is insufficient evidence to conclude the Carrs had decided to sell, as we construe the contract. The first letter sent to the Johnsons stating they were “seriously considering” selling the property, clearly does not mean the Carrs had decided to sell. The second letter, written under the belief that the original contract option was not in force, also fails to rise to a decision to sell. In that letter the Carrs stated they would sell the property, provided the parties would negotiate seriously and subject to certain conditions. This is not an offer, merely an invitation to deal.
The words, “decide to sell” as used in this contract would not necessarily require a firm offer to the option holder or any third party to demonstrate such an intention and under other circumstances an invitation to deal might be sufficient to demonstrate a decision to sell, (see Long, supra; Turner, supra) but the cases must turn on the context of the facts as well as the words of each case. Corbin on Contracts, § 261A (1963). Here, we don’t find the evidence sufficiently persuasive to reach that conclusion.
Although a willingness to sell only at a higher price can evidence a decision to sell, we cannot conclude from the Carrs’ second letter that this was the case where there was only an offer to negotiate. It may have been that the Carrs’ plan was to sell at a higher price, but given the circumstances of the case and the language used, we could only speculate as to their motives in sending the second letter. On the record presented to the trial court the evidence was insufficient to show that the Carrs would ever be willing to sell, regardless of price. We cannot hold the chancellor’s finding in this regard was clearly erroneous.
Affirmed.
George Rose Smith, J., dissents.
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Per Curiam.
Appellant, James K. Ridling, by his attorney, has filed for a rule on the clerk.
His attorney, John W. Leach, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Purtle, J., not participating. | [
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Per Curiam.
Petitioner, Joe Willie Stewart, by his attorney, John Norman Warnock, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Purtle J., not participating. | [
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Jack Holt, Jr., Chief Justice.
The sole issue we must address in this appeal is whether the appellant, Provident Life & Accident Insurance Co., may enforce a provision in its group disability insurance policy which reduces the benefits to the appellee, Clarence Toran, by the amount of the Social Security payments he is entitled to receive because of his disability. Our jurisdiction is pursuant to Sup. Ct. R. 29 (1)(c), to interpret Ark. Stat. Ann. § 66-3709 as amended in 1979.
We recently answered the same question under the 1975 version of § 66-3709 in Milldrum v. Travelers Indemnity Co., 285 Ark. 376, 688 S.W.2d 271 (1985), where we held that Act 900 of 1975 did not prohibit the insertion of a clause reducing benefits for Social Security payments. Although the 1975 Act was at issue in Milldrum, we inadvertently quoted language contained in Act 806 of 1979, an amended version of the same Act. The difference between these two enactments does not affect the decision in Milldrum, nor does it change the end result of this case.
Arkansas Stat. Ann. § 66-3709 as amended in 1979 controls this case because the appellee became disabled in 1980.
Section 1 of Act 806 of 1979 (§ 66-3709) states:
“Section 1. No contract of group disability insurance as defined in Arkansas Statute 66-3701 including group contracts issued by Hospital and Medical Service Corporations as defined in Arkansas Statute 66-4908 hereafter sold, delivered or issued for delivery or offered for sale in this State shall contain any provision for the denial or reduction or [of] benefits because of the existence of other like insurance except to the extent that the aggregate benefits with respect to the covered medical expenses incurred under such policy or plan and all other like insurance with other insurers exceed all covered medical expenses incurred. The term “other like insurance” may include group or blanket disability insurance or group coverage provided by Hospital and Medical Service Corporations, government insurance plans, union welfare plans, employer or employee benefit organizations, or Workmen’s Compensation Insurance or no-fault automobile coverage provided for or required by any statute.”
The only change from the 1975 Act was the addition of “government insurance plans” in the list of prohibitions covered by the statute. In Milldrum, we said the “enumeration of various private insurance plans as constituting ‘other like insurance’ by implication excluded from the prohibition governmental social programs such as Social Security benefits.”
The trial judge’s interpretation of the statute, in light of our holding in Milldrum, is incorrect. Appellant should be allowed to reduce payment of benefits to appellee according to the policy’s provision and the judgment in favor of appellee, including the award of attorney’s fees, must be reversed.
Reversed.
Purtle, J., not participating. | [
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Steele Hays, Justice.
The question presented by this appeal is whether the trial court properly granted a mistrial, so that a retrial of the appellant does not result in double jeopardy.
Appellant, John L. Jones, was charged with obtaining and using information from the Arkansas Crime Information Center in violation of Ark. Stat. Ann. § 5-1110. The trial was set for October 30, 1984, and after the defense and prosecution had announced ready for trial a jury was selected and sworn. When the state called its first witness, Carl Stuecken, there was no response. After a brief recess the state reported that Stuecken had been admitted to the hospital for emergency surgery and was presently in intensive care. The state argued that Stuecken was a critical witness and moved for a mistrial. The defense objected, contending it was not apparent Stuecken’s testimony was material. The trial judge commented that from similar cases he had already heard he regarded the testimony as material. The jury was dismissed and a conference was held with the state offering proof on the materiality of the testimony.
In January, 1985 the appellant filed a motion to dismiss the information on the grounds that to impanel another jury would subject him to double jeopardy. The motion was denied and appellant has appealed.
Relying on language in Cody and Muse v. State, 237 Ark. 15, 371 S.W.2d 143 (1963), appellant contends the mistrial could have been averted by diligence and care on the part of the state. In Cody and Muse, when it appeared during the trial that insanity could become a defense for Muse, the court, over the objection of defense counsel, declared a mistrial and committed both defendants to the state hospital for observation. Muse and Cody later moved to dismiss on grounds of double jeopardy and we reversed the denial of their motion:
The manifest necessity permitting the discharge of a jury without rendering a verdict and without justifying a plea of double jeopardy may arise from various causes or circumstances; but the circumstances must be forceful and compelling, and must be in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.
We pointed out as far as Cody was concerned there was neither a plea of insanity nor a single line of evidence that would suggest Cody to be insane; that even if the mistrial had been justified as to Muse, there was nothing to prevent the continuation of the trial as to Cody. As to Muse, the state had possession of records for several months which should have alerted it to the sanity issue, and additionally, Muse had been held in jail for five months before an attorney had been appointed to defend him, time which might have been used in his defense.
In contrast, the facts in this case presented an emergency that could not have been averted by reasonable care. The trial was scheduled for the 30th of October and the witness, Stuecken, was subpoenaed twice, both subpoenas being served within a week prior to trial. In addition to the subpoena, the prosecuting attorney required the actual appearance of Stuecken and other witnesses at his office on Thursday, October 25. Stuecken appeared for the interview with no apparent difficulty. As Stuecken left, he was again advised by the prosecutor to be in court on the following Tuesday. He developed acute intestinal difficulties over the weekend and was admitted to the hospital on an emergency basis on Sunday night. He underwent surgery on Monday and was in intensive care on Tuesday, the day of trial. It was only then that the prosecution learned of his unavailability, having relied on his recent observations and the subpoenas.
There was nothing in these circumstances to alert the prosecution to any likelihood of Stuecken’s absence. Nor do we find that the prosecution should have exercised greater diligence in order to have discovered the absence of this witness.
The appellant’s claim is one of constitutional proportion and we have considered the argument in light of United States Supreme Court cases on the subject. That court has recognized in double jeopardy claims the difficulty of categorizing cases and the inadequacy of any standard formula, to the end that each case must turn largely on its own facts. Arizona v. Washington, 434 U.S. 497 (1978); Illinois v. Somerville, 410 U.S. 458 (1973). In Arizona v. Washington, noting the importance of a defendant’s right against double jeopardy and the fact that it is frustrated when a mistrial occurs, Justice Stevens wrote for the majority, “[T]he prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. . . . Thus, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence. . . .” In the same vein, the court has also warned of the danger of error originating with the government that would lend itself to prosecutorial manipulation. Illinois v. Somerville, supra. In discussing the need for examining prosecutorial error, both Arizona and Somerville cite Downum v. United States, 312 U.S. 734 (1963). In Downum, material prosecution witnesses were absent at the start of trial, but the prosecution had not subpoenaed these witnesses and knew they were unavailable when it announced ready for trial. A mistrial was granted and the Supreme Court held that further prosecution was barred.
Here we do not find the same potential for prosecutorial manipulation as in Downum. The evidence demonstrates the prosecution’s care in preparation for trial in combination with the unforeseeable absence of the witness. The requirement of diligence on the part of the prosecution has not been loosely applied, see Cody, supra, and we find it comes within the standard of strict scrutiny noted in Arizona. As discussed earlier, the prosecution in this case came within that standard.
The order appealed from is affirmed.
Dudley, J., and Newbern, J., dissent.
Purtle, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
The Arkansas State Medical Board found that appellant, Dr. Pat Livingston, committed “grossly negligent or ignorant malpractice” and ordered her license suspended for 30 days. The doctor appealed to Pulaski Circuit Court where the board’s decision was upheld. It is from that holding that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(c) as this case was certified to us by the Court of Appeals to interpret Ark. Stat. Ann. § 72-613 (Repl. 1979 and Supp. 1985).
The basis of the board’s action was that Dr. Livingston had “negligently and repeatedly diagnosed and confirmed the diagnosis of pregnancy of a female patient over a period of four (4) months,” when the patient was not, in fact, pregnant. Testimony at the hearing before the board revealed that Mrs. Kathy Hooper, 23, visited Dr. Livingston seven times between September 9,1983 and January 7,1984. Mrs. Hooper testified that those visits were for obstetric purposes, since Dr. Livingston told her she was pregnant at the first visit on September 9; treated her as such during subsequent visits; and did not tell her she was not pregnant until January 7. Dr. Livingston denied having ever told Mrs. Hooper she was definitely pregnant and relies on the fact that her medical records do not reveal that specific statement was ever made. During the course of the seven visits, a pregnancy test was performed on Mrs. Hooper with positive results, she was checked for uterine enlargement, placed on vitamins, given a due date of May 6, 1984, and had three ultrasounds. The ultrasounds were performed by Lucy McDaniel, an employee of Dr. Livingston’s, who told Mrs. Hooper that the baby was so small she could not get a good picture of it and that the baby might be “hiding.” At Mrs. Hooper’s final visit, Dr. Livingston told Mrs. Hooper that she was sorry about the amount of time that had gone by, but that she thought Mrs. Hooper understood that she was probably not pregnant.
Dr. Livingston offered the testimony of Dr. Orman Simmons, an obstetrician/gynecologist practicing in Little Rock. Dr. Simmons testified that Dr. Livingston’s records were adequate and reflected an appropriate standard of care. He also testified, however, that he would have taken steps before January 7 to determine conclusively whether Mrs. Hooper was pregnant, and that it would not be up to the standard of care in the community to wait four months to tell the patient she was not pregnant, and to not seek a second opinion. Dr. Livingston admitted during her testimony, “I feel that we did let the girl go too long”, and that she should have sent her to another doctor who would have told her definitely whether she was pregnant.
The appellant argues on appeal that the trial court erred in failing to find that the decision of the appellee, the Arkansas State Medical Board, was arbitrary, capricious and characterized by an abuse of discretion.
When reviewing administrative action to determine if it is arbitrary or capricious, we determine whether the action lacks a rational basis or hinges on a finding of fact based on an erroneous view of the law. Woodyard, Comm’r v. Ark. Diversified Ins., 268 Ark. 94, 594 S.W.2d 13 (1980), rehearing denied.
The testimony at the hearing provided a rational basis for the board’s action. The appellant contends, however, that the decision hinged “on a finding of fact based on an erroneous view of the law.” In support of this contention, appellant maintains that the board held Dr. Livingston, a general practitioner, to the same standard of care as that exercised by Dr. Simmons, a specialist. Appellant claims the board thereby violated Ark. Stat. Ann. § 34-2614 (Supp. 1985) which provides that the plaintiff in an action for medical injury has the burden of proving the skill ordinarily possessed by members of the profession engaged in the same type of practice. Arkansas Stat. Ann. § 34-2613 (Supp. 1985), however, defines “action for medical injury” as “any action against a medical care provider ... to recover damages on account of medical injury.” This was an action by an administrative board reviewing the conduct of a professional, and ultimately punishing that professional. It was not an action to recover damages. The statute is therefore inapplicable.
The authorizing statute for the board’s action is Ark. Stat. Ann. § 72-613 (Repl. 1979 and Supp. 1985) which provides that the board may revoke or suspend a license if the holder has committed any acts or offenses defined to be unprofessional conduct. Included in the list of definitions is “(g) grossly negligent or ignorant malpractice.” The board’s action was not the result of an erroneous application of the law.
The other “erroneous view of the law” argued by appellant is the board’s interpretation of “grossly negligent or ignorant malpractice.” The appellant maintains there was not substantial evidence to support the board’s finding.
We affirm an agency’s decision if there is substantial evidence to support it. Partlow v. Ark. State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980); Ark. Stat. Ann. § 5-713(h)(5) (Supp. 1985). To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion, Id.
“Malpractice” is defined by Regulation 2 of the Arkansas State Medical Board to include “any professional misconduct, unreasonable lack of skill or fidelity in professional duties, evil practice, or illegal or immoral conduct in the practice of medicine and surgery.”
The appellant argues that her conduct does not fall within the category defined in the regulation. She states that even if her conduct could be considered “an unreasonable lack of skill” that this definition is only for “malpractice” and not for “grossly negligent” or “ignorant malpractice.”
Although we have not previously defined “ignorant malpractice” this court has considered the question of “gross negligence” in other contexts. We have stated our commitment “to the majority rule that willful and wanton misconduct is, as a matter of law, higher in degree than gross negligence”, St. Louis S.W. Ry. Co. v. Clemons, etc., 242 Ark. 707, 415 S.W.2d 332 (1967). The U.S. District Court, Western District, Fort Smith Division, has stated that “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result,” Robinson Ins. & Real Estate Inc. v. Southwestern Bell Tel. Co., 366 F. Supp. 307 (1973). The district court further explained that the element of willfulness is absent in gross negligence. Id.
California has a similar medical licensing statute which includes “gross negligence” as a form of unprofessional conduct. Cal. Bus. & Prof. Code § 2234(b) (Deering 1985). Interpreting this statute, (formerly § 2361) the California Court of Appeal in Gore v. Board of Medical Quality Assur., 110 Cal. App. 3d 184, 167 Cal. Rptr. 881 (1980), also defined gross negligence as “a want of even slight care, but not necessarily involving wanton or willful misconduct; in other words, an extreme departure from the ordinary standard of care.” In finding the doctor in that case committed gross negligence, the court held:
Substantial evidence shows that he failed to exercise the standard of care in diagnosis, monitoring and treatment that is basically and routinely taught to students in medical school. Thus, management of his patient was an extreme departure from the standard of medical care, which we hold to be the equivalent of “want of even scant care” under the circumstances of this case.
Although the board did not differentiate in its finding between “ignorant malpractice” or “gross negligence” there was substantial evidence of an extreme departure from the ordinary standard of care, which constitutes gross negligence. The board had the benefit of expert testimony in reaching their decision, see Hake v. Ark. State Medical Bd., 237 Ark. 506, 374 S.W.2d 173 (1964), and we traditionally accord a great deal of deference to the findings of administrative agencies in light of their “specialization, insight through experience and more flexible procedures,” Arkansas ABC Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1982).
Accordingly, the judgment of the trial court is affirmed.
Turtle, J., not participating. | [
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David Newbern, Judge.
This tort action arose from an accident involving Harvey L. Ashmore, Jr., who was the rider of a motorcycle, and Grady T. Lee, who was the driver of an automobile. The two vehicles were approaching each other from opposite directions on a busy street when the Lee vehicle turned left in front of the motorcycle. Harvey turned his motorcycle to the left to avoid colliding with the car, and his leg struck, or was struck by, the rear panel and bumper of Mr. Lee’s car, causing serious injury to Harvey’s leg. This action was brought by Harvey L. Ashmore, Sr., and his wife, Clara Sue Ashmore, individually and as next friends of Harvey L. Ashmore, Jr. The defendants were the estate of Mr. Lee and Electrolux Corporation. The allegation of liability of Electrolux was based on the contention that Mr. Lee was an employee of Electrolux acting in the scope of his employment at the time the accident occurred. The issues presented here have mostly to do with proof of that relationship.
A jury found the accident to have been caused by the negligence of Mr. Lee to the extent of 65% and of Harvey L. Ashmore, Jr., to the extent of 35%. Based on that finding and a finding of damages suffered by the plaintiffs, the judgment awarded $13,000.00 to the parents on their individual claims and $13,000.00 to them on their son’s behalf. The jury found Mr. Lee to have been an independent contractor rather than an employee of Electrolux, and thus all of the damages were against Mr. Lee’s estate only. The judgment was appealed by the Ashmores to the Arkansas Supreme Court, and the case was assigned to us pursuant to Rule 29(3).
We find three of the appellant’s four points are sufficient bases for reversal. We will discuss all four, as they may arise again upon retrial.
I.
The appellants’ first point is that the court erred in refusing to compel Electrolux to produce a statement made by Mr. Lee to Electrolux or its insurer shortly after the accident. In its order, the court cited two cases, Dritt v. Morris, 235 Ark. 40, 357 S.W. 2d 13 (1962) and Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467 (1973).The Drift case involved responses to interrogatories allegedly within the “work product of the attorney” privilege. There the Arkansas Supreme Court found it should compel answers to some of its interrogatories but not others, applying the well known “necessity” test established in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947). In Curbo, the Supreme Court approved the trial court’s order compelling production of a statement obtained by an insurance investigator and subsequently given to an attorney. The trial court had ruled the statement was not part of an attorney’s work product.
After citing those cases, and without discussion of them, the court said it would not compel production of the statement for three reasons: (1) the appellants had interviewed Mr. Lee after the accident, (2) agency or acting within the scope of employment cannot be proven by the admission of the alleged agent, and (3) the statement would not be admissible because of the “ Dead Man’s Statute.” We will discuss these reasons in reverse order.
The “ Dead Man’s Statute,” found in Section 2 of the Schedule of the Arkansas Constitution of 1874, was repealed with the adoption of the Uniform Rules of Evidence in 1974. Ark. Stat. Ann. § 28-1001 (Supp. 1977). In Davis v. Hare, 262 Ark. 818, 561 S.W. 2d 321 (1978), it was held that this was a rule of evidence or a “procedural” change and thus the new rule was applicable because the trial, as opposed to the operative facts, occurred after the change in the law. That is the case here.
The second reason gives us equally little pause, as it went to admissibility rather than discoverability. Under the discovery statutes applicable at the time the order was entered, production of the statement could have been required regardless of its admissibility if the request appeared reasonably calculated to lead to the discovery of admissible evidence. Ark. Stat. Ann. §§ 28-356 and 28-348 (b) (Repl. 1962).
We might interpret the court’s first reason for denying production as being there was no “good cause” for production of the statement. Even if that had been the court’s reason in referring to the pretrial interview of Mr. Lee, it would have been invalid. Harvey T. Ashmore, Sr., said in testimony proffered at the trial that Mr. Lee had told him he was on his way to call on an Electrolux customer in the statement sought, that evidence would have been valuable to the appellants on the question of scope of employment, and possibly the general issue of employment. An excellent discussion on the need for liberal interpretation of discovery rules in the light of circumstances of the case at hand appears in Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W. 2d 607 (1978). There Judge Fogleman made it clear that when proof of a party’s case depends largely on testimony of his adversary and documents kept by his adversary, “the scope of discovery permitted should be broader than otherwise and . . . [the seeking party]. . . should be allowed to inspect any writing in the files ... [of the adversary] . . . which might lead to admissible evidence.” (264 Ark. at 237)
The appellees contend the error, if any, was harmless, as the jury found Mr. Lee was an independent contractor. That argument is specious, as the statement sought could have produced or led to evidence upon which the jury could have reached the conclusion Mr. Lee was an employee of Electrolux acting in the scope of his employment.
II.
The appellants’ second argument is that the trial court erred in not allowing Harvey L. Ashmore, Sr., to testify as to what Lea Vincent, an Electrolux office employee, told him about Mr. Lee’s activities on the day of the accident. The court ruled the proffered testimony was hearsay. The appellants contend the testimony is excepted from the hearsay rule under Rule 801 (d) (2) of the Uniform Rules of Evidence. Ark. Stat. Ann. § 28-1001 (Repl. 1979).
We approve the trial court’s action in excluding this testimony. The proffer was to the effect that Ms. Vincent, whose whereabouts at the time of the trial were unknown, told Mr. Ashmore that on the day of the trial Mr. Lee had been at the Electrolux office to “pick up his calls,” and that he had returned to the office shortly after the accident. This testimony was relevant on the question of the employment relationship between Mr. Lee and Electrolux, but to be admissible under Rule 801 (d) (2), supra, it must constitute an admission.
We find no Arkansas cases containing specific definition of “admission.” It is generally defined, however, as a concession or a statement by a party or his agent amounting to a prior acknowledgment of a fact the party denies. In Re Brooklyn Bridge Southwest Urban Renewal Project, 50 Misc. 2d 478, 270 N.Y.S. 703 (1966), and Hartford Accident & Indemnity Co. v. McCardell, 369 S.W. 2d 331 (Tex. 1963). At no time did Electrolux deny the facts sought to be asserted in Ms. Vincent’s statement to Mr. Ashmore. At one point in a deposition the Electrolux district manager denied Mr. Lee was working “in the course of his employment” at the time of the accident, but the abstract before us does not show that he or any other Electrolux representative denied that Mr. Lee was at their office on the day in question or that he had picked up his calls that day.
III.
The appellants’ third argument is that the trial court erred in refusing to permit Mr. Ashmore, Sr., to testify that Ms. Vincent asked him to fill out an accident report for Electrolux’s insurer. The appellants proffered Mr. Ash-more’s testimony and offered an instruction taken directly, and altered only insignificantly, from Delamar & Allison v. Ward, 184 Ark. 82, 41 S.W. 2d 760 (1931). The instruction, which was approved in the Delamar case, makes clear evidence of insurance coverage of a vehicle is admissible on the issue whether the vehicle was being driven for the purposes of or under the control of the party carrying the insurance.
In their response to the appellants’ argument, the appellees cite only Hogan Co. v. Nichols et al, 254 Ark. 771, 496 S.W. 2d 404 (1973), in which the Arkansas Supreme Court found evidence of an insurance agreement should not have been admitted to prove an employer-employee relationship. In that case, however, there was evidence that the alleged employer could not have purchased insurance covering vehicles hired but not owned by it, and covering them only when driven by an employee of the alleged employer. The Delamar case was distinguished in Hogan on the basis of proof in the latter that existence of the particular policy and its coverage was consistent with either independent contractor or employee status of the driver.
In the case before us, we have no evidence what the policy provided, nor do we have any evidence that Electrolux could not have purchased insurance covering its employees, no matter whose cars they drove. While we can distinguish this case from Hogan, we cannot distinguish it from Delamar.
The trial judge apparently made no discretionary determination under Rule 403, Ark. Stat. Ann. § 28-1001, supra, that any prejudice resulting from introduction of evidence of insurance would outweigh the probative value of the evidence. At least, if he did so, it does not appear in the abstract. Thus, we find no justification for the court to have refused to permit the testimony or to have given the requested instruction, had the testimony been permitted.
IV.
The final point made by the appellants is that the court erred in refusing to give A.M.I. 614, an instruction saying that a person confronted with a “sudden emergency” is charged only with the duty of care reasonably expected under those circumstances. The instruction points out that it applies only to sudden emergencies which are not caused by the negligence of the party requesting the instruction.
Two lines of Arkansas Supreme Court cases have developed on the propriety of giving this instruction. Some say the language of the instruction pointing out that it applies only where the negligence of the party seeking the instruction did not cause the emergency is a sufficient safeguard, thus implying the instruction may be given even when there is some evidence of negligence on the part of the party seeking the instruction. See, e.g., Hooten v. DeJarnatt, 237 Ark. 792, 376 S.W. 2d 272 (1964). Others say a party is not entitled to the instruction where his own negligence has created the emergency. See, e.g., Williams v. Carr, et al, 263 Ark. 326, 565 S.W. 2d 400 (1978). These approaches are not inconsistent. When they are combined, the result is that the trial judge may give the instruction in cases where there is some negligence on the part of the party seeking the instruction, but the instruction should not be given where the evidence is very strong that the party requesting the instruction has “created” the emergency by his own negilgence.
In the case before us, we are not asked to say there was not substantial evidence to support the jury’s finding of 35% negligence on the party of Harvey L. Ashmore, Jr., but we would have had difficulty finding that evidence had we been asked. At the very least, it is clear to us that there was no strong evidence that an emergency was created by negligence of Harvey. The instruction should have been given.
Reversed and remanded.
Judge Penix did not participate.
The statute which required a showing of good cause for production of documents, Ark. Stat. Ann. 8 28-356 (Repl. 1962), was in effect at the time of this discovery request. The "good cause" requirement has been eliminated from the rule which has replaced the statute. See, A.R. Civ. P. 34. | [
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M. Steele Hays, Judge.
This is an appeal from a decision of the Board of Review which affirmed a ruling of the Appeal Tribunal denying claimant unemployment benefits from June 17 to July 18, 1979, because his availability for work was unduly restricted. Specifically, the Appeal Tribunal found that by limiting his search for an employer having a pension plan comparable to his previous employment and to a salary of not less than $235 per week failed to meet the test of what a “reasonably prudent individual would do to secure work”, as defined by Section 4 (c) of the Act.
Claimant testified that he had called his union approximately twice a week, had made two direct contacts and several telephoné contacts from May 22 to July 18 in his efforts to find work.
In light of the evidence in the record that claimant would not accept a salary of less than $235 per week and that he was limiting his efforts to secure work to employers with á pension program (T. p. 11), we are unable to state as a matter of law that the claimant was in compliance with 4 (c), or that there is an absence of substantial evidence in the record to support the decision of the Board of Review. Haun v. Daniels, Director of Labor, 266 Ark. 146 (Ct. App. 1979); Terry Dairy Products Company, Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955).
We recognize the advantages to the claimant of remaining under a pension plan and we believe that he was justified for a reasonable period of time in giving preference to such a consideration; however,' it seems clear that a reasonably prudent person would at some point lower his sights in seeking employment and inasmuch as claimant had over three months to find the type of work he wanted, at the desired salary of $235 per week, we must agree with the Board of Review’s holding that after that length of time, i.e., thirteen weeks, claimant was unduly restricting his search for employment.
It should be added that we are troubled by the broad language of Section 4 (c) in defining the standard for seeking employment and believe that claimants are entitled to a higher degree of specific guidance in knowing what is expected of them in the way of efforts to secure employment, especially so since they risk the loss of eligibility. It would seem.that some guidelines could be adopted so that a more objective test might be applied.
The decision of the Board of Review is AFFIRMED.
Howard and Newbern, JJ., dissent.
David Newbern, Judge.
I fully agree with Judge Hays’ statement of the need for some sort of standards which could be readily explained to ESD claimants letting them know what factors will determine whether their efforts have been or will be considered to be reasonable. A person such as the appellant in this case who has a legitimate interest in preserving his pension rights in a program to which he has contributed for 20.years can clearly be expected to seek only employment where he may continue to do so. As it stands, he has no way of knowing just how much time will be considered “reasonable” to conduct such a search.
My primary reason for disagreement with the majority here, however, has to do with a procedural point which is not mentioned in their opinion. One of the bases for Mr. Eubanks’ appeal in this case was that he had asked for but never been supplied a copy of the transcript of the hearing held by the.appeals tribunal. Mr. Eubanks appeared before us to argue his case pro se, and at that point he still had not received a copy of the transcript. He was invited by our chief judge to look at the copy which had been brought to the oral argument by the Labor Department Chief Counsel who argued for the Director. Thus while he was trying to listen to what his adversary had to say, he was being given his first look at the record:
If this spectacle did not present clear evidence of deprivation of administrative due process, then nothing could. I refer to, and incorporate by reference the general remarks in my dissenting opinion in Teegarden v. Director, Arkansas Employment Security Division, CA 79-28, which is being handed down today.
Judge Howard joins in this opinion. | [
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M. Steele Hays, Judge.
The appellant was charged with burglary and theft of property. Prior to trial, a hearing was held on the appellant’s motion to suppress. His motion was denied, and the case proceeded to trial where the appellant was acquitted on the burglary charge but found guilty of theft of property. The jury sentenced the appellant to ten years imprisonment and fined him $3,000. He appeals from the judgment.
Appellant’s first contention is that the trial court erred in failing to suppress the evidence seized in a warrantless search and seizure. Testimony during the hearing reveals that officers went to appellant’s apartment after an investigation concerning stolen CB equipment led to appellant’s son’s house. The officers and Mr. Jay Petray, the owner of the stolen equipment, were told by the appellant that he had no knowledge of his son’s possession of the stolen equipment. However, Mr. Petray noticed an antenna on top of appellant’s apartment. Consequently, the officers asked if the appellant had any CB equipment and also asked if they could search the apartment. Appellant told the officers that he had company and to come back later.
At this point, the officers decided to obtain a search warrant. One of the officers left to obtain the warrant while Sheriff Vaughn and Mr. Petray remained near the premises to keep the apartment under surveillance. The two then observed the appellant come out of the apartment. Sheriff Vaughn testified that he was carrying an armload of “stuff ’ and was running with it. They watched as appellant went through the garden located behind the apartment and into a wooded area where he placed the equipment. Sheriff Vaughn and Mr. Petray went to the area where the articles were hidden. Petray identified the articles as the CB equipment stolen from his store, and the appellant was arrested.
We cannot agree with the appellant’s contention that this was an unreasonable search and seizure under the fourth amendment. Coolidge v. New Hampshire, 403 U.S. 442 (1971), requires that inferences which reasonable men draw from evidence should be drawn by a neutral and detached magistrate. This is required because one should feel secure from governmental intrusion while in his dwelling or other places where he has a reasonable expectation of privacy.
The appellant cites Sanders v. State, 264 Ark. 433 (1978), as supporting authority for the rule that one’s dwelling and curtilage have consistently been held to be areas that are considered free from governmental intrusion. A garden has been considered a part of one’s curtilage. Durham v. State, 251 Ark. 164, 471 S.W. 2d 527 (1971);Sanders, supra. However, the facts in Sanders are clearly distinguishable from this case. In Sanders, the officers had gone to appellant’s trailer house for the purpose of searching his dwelling pursuant to an invalid search warrant. Subsequently, they went behind his trailer, crossed a fence, and seized 50 marijuana plants they found in a garden.
In the instant case, the officers went to appellant’s apartment merely to ask some questions. They became suspicious after seeing a CB antenna on his roof. They seized the equipment after they watched the appellant run out of his apartment and dump it in a wooded area behind the garden.
A search of open land without a warrant is permissible. Hester v. United States, 265 U.S. 57 (1924); Rules of Criminal Procedure, Rule 14.2 (1976). The Arkansas Supreme Court has held that wooded areas are open land, Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200 (1975); even when the land in question belonged to the appellant, Wyss v. State, 262 Ark. 502, 558 S.W. 2d 141 (1977). We believe that the appellant had no reasonable expectation of privacy in the wooded area behind his apartment and this is not within the purview of one’s “curtilage” as defined in Sanders, supra. Hence, the trial judge was correct in his denial of appellant’s motion to suppress.
Appellant’s second contention is that the trial court abused its discretion in denying appellant’s motion for mistrial. The motion was made after the prosecuting attorney, in his closing argument, made statements to the jury which, appellant contends, were highly prejudicial. Previously, in the appellant’s closing argument, the defense counsel had commented on the credibility of two of the State’s witnesses. In response to this, the prosecutor stated:
But, I think you ladies and gentlemen know, in matters of common expertise, that in the sewer of crime the good people don’t go only the rats, and the rats talk to each other and the rats commit crimes together. (T. 193, 194)
Appellant also objected to the prosecuting attorney’s closing argument in the sentencing proceeding. Prior to this time, defense counsel had attempted to rebut the State’s evidence of prior convictions by stating that the date of the last conviction was 24 years ago and that “a lot of things have happened, since 24 years ago.” The prosecutor, in response to this statement, commented to the jury:
I suggest to you that there has been a lot of things that happened since then, as evidenced by this trial, and others, and I leave it to your speculation as to what others may be, that we don’t have here today. (T. 215)
The trial judge sustained both objections by appellant, instructed the jury to disregard the prosecutor’s reference to certain persons as “rats,” and instructed the prosecutor to stay inside the record. Appellant moved for a mistrial on both statements and was overruled.
We agree with the appellant that these statements by the prosecutor are highly improper. However, the granting of a motion for mistrial is an extreme remedy and has largely been within the province of the trial court. Gammel and Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976); Hill v. State, 255 Ark. 720, 502 S.W. 2d 649 (1973); Johnson v. State 254 Ark. 293, 493 S.W. 2d 115 (1973).
As was stated in Simmons v. State, 233 Ark. 616, 346 S.W. 2d 197 (1961):
This court has repeatedly observed that the prosecuting attorney acts in a quasi judicial capacity and that it is his duty to use all fair, honorable, reasonable, and lawful means to secure a conviction of the guilty in a fair and impartial trial.
As a general rule, th.ere are three types of improper state ments made by a prosecuting attorney: improper, prejudicial, and prejudicial per se. [See Hall, The Bounds of Prosecutorial Summation in Arkansas, 28 Ark. L. Rev. 55 (1974).] Improper statements do not lead to reversal but should be avoided on ethical grounds. Prejudicial statements will lead to reversal unless it is harmless error, and prejudicial per se statements invariably lead to reversal. The permissible bounds of prosecutorial summation will depend on the various facts and circumstances of each case. (For the general rule pertaining to prosecutorial summation see ABA Standards for Criminal Justice, The Prosecuting Function §5.8(1971).)
The general rule is that the prosecutor may not assert the defendant’s character is questionable where there is no adequate justification in the evidence. However, where the prosecutor has improperly demeaned the defendant, an admonition by the trial court may be adequate. Hence, in Henshaw v. State, 67 Ark. 365, 55 S.W. 157 (1900), an admonition by the trial court to the jury when the prosecutor referred to the defendant as a “jailbird” was held sufficient. Also, in Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115 (1973), the Supreme Court upheld a conviction of the appellant on counts of burglary and grand larceny, stating that an admonition by the trial judge was sufficient when the prosecuting attorney suggested that the defendant’s plea of not guilty was an insult to the jury’s intelligence as to warrant double punishment. The court stated that for a mistrial to be warranted, it must appear that justice can not be served by continuation of the trial.
In this case, we can not say that the prosecutor’s statements were so highly prejudicial as to warrant a mistrial. We regard the prosecutor’s statement as highly improper, but we conclude that the admonition by the trial court was adequate to offset the impropriety. We are confident that jurors will not take such unprecedented comments made by the prosecutor into consideration and would not be inflamed or prejudiced by such, particularly where the trial judge has expressed his disapproval. Moreover, where the opposing counsel has made credibility an issue, the bounds of permissible argument on that issue are considerably broader. Tomlinson v. United States, 93 F. 2d 952 (1937).
As to the second statement made by the prosecutor, we again do not approve such comments but hold that an admonition by the trial judge was sufficient. These comments were made during the sentencing proceedings after a guilty verdict had been rendered. It is a well settled rule in Arkansas that the trial judge has wide discretion in determining the prejudicial effect of counsel’s closing arguments to the jury. Murchison v. State, 249 Ark. 861, 462 S.W. 2d 853 (1971); Peters v. State, 248 Ark. 134, 450 S.W. 2d 276 (1970); Fisher v. State, 241 Ark. 545, 408 S.W. 2d 894 (1966); Head v. State, 221 Ark. 213, 252 S.W. 2d 617 (1952). The trial court has the opportunity to observe its prejudicial impact upon the jury, and its decision will not be reversed unless there has been an abuse of discretion. We do not believe that the appellant was unduly prejudiced and therefore hold that the trial court properly denied appellant’s motion for a mistrial.
Appellant’s third point for reversal is that the trial court erred in unduly limiting appellant’s closing argument. The contention is based on a denial by the trial judge to allow the appellant’s counsel to argue that the testimony of a witness for the State, Officer Reynolds, was for impeachment purposes only and not as substantial evidence. However, appellant voiced no objection when the witness testified nor did he request that a limiting instruction be given to the jury. Only after the jury had rendered a guilty verdict and was deliberating on the sentence did he object. We believe that the objection was untimely and was properly overruled. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979); Uniform Rules for Circuit and Chancery Courts, Rule 13.
Lastly, appellant argues that the trial court erred in allowing the prosecutor to question the State’s witness, Mr. Alan Ophof, regarding the length of time an inmate must serve before becoming eligible for parole. We agree with appellant that ordinarily this is not an area which can be dismissed either in argument or interrogation; however, appellant’s citations do not reach the issue as presented in the context of this case, for here, counsel for appellant first broached the subject by the questions which he posed on cross-examination. At several points on cross-examination, counsel asked questions aimed at showing that the witness’s testimony was given in consideration of a promise of early parole. This was not improper cross-examination, but it does, to some extent, open the door to questions from the prosecution to refute the inference. Allen v. State, 260 Ark. 466, 541 S.W. 2d 675 (1976). Without retreating from the general rule in criminal cases that parole procedures are not proper areas of either comment or inquiry where the purpose is to influence the sentence, we find that the trial court did not err in permitting some counter interrogation by the prosecutor on re-direct examination. It can also be said that the objection failed to reach the character of the question which appellant now contends was offensive, that, its prejudicial influence upon the sentence. Yet the objection made was to its relevancy. This seems to be drawing afine line and perhaps so; but it is settled law that for the trial court to have committed reversible error, it must be said that timely and accurate objection was made, so that the trial court was given the opportunity to correct such error. West v. State, 255 Ark. 668, 501 S.W. 2d 771 (1973); Callaway v. State, 258 Ark. 352, 524 S.W. 2d 617 (1975); Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1969).
Affirmed.
Howard, J., dissents. | [
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Phillip Carroll, Special Chief Justice.
In September, 1967, Marcus D. Faver, 69, a widower and father of three adult sons, proposed marriage to Pearl Hughes, 66, a widow and mother of three adult daughters. Mrs. Hughes, having completed the 9th grade in school, had married Bedy Hughes, a farmer, in 1919 and they had lived in the England, Arkansas area for 46 years before Mr. Hughes’ death in 1965. Mr. Faver’s wife, Louise, had died in February, 1967. Pearl and Louise had been schoolmates as girls, and after their marriages, the two couples maintained some social contact through the years.
Marcus Faver’s courtship of Pearl Hughes was short. He was a farmer, and his proposal of marriage was conditioned upon the signing of an agreement that his land would not be taken away from his boys. Initially, Mrs. Hughes refused, but she testified that Mr. Faver assured her that she would be provided with money and she agreed to sign an agreement. Furthermore, she testified that she was motivated to sign by her understanding that Mr. Faver’s son, Albert, who had built a new home, had said he would move if his father’s new wife claimed an interest in the land. Mrs. Hughes’ own estate at that time consisted of 106 acres of farmland, a savings account of about $1,000, and another account containing a moderate sum. She had executed a Will following the death of Mr. Hughes leaving all of her property to her three daughters. She disclaimed any knowledge of laws relating to dower, curtesy, homestead, or statutory allowances for widows.
On October 18, 1967, Marcus Faver took his fiancee to the office of his lawyer, Ralph Ray, for the purpose of signing an antenuptial agreement drafted by Ray at the request of Mr. Faver. The sole testimony concerning the events that transpired in Ray’s office came from the appellee, Pearl Faver, who said that only the three of them were present and that no explanation was given concerning the nature, extent, or value of Mr. Faver’s property nor of the nature or extent of the legal rights which she was surrendering. She said she did not read the agreement nor was it read or explained to her, and that the paper was folded on Mr. Ray’s desk as she signed it so that only the signature line was exposed to view. After the signing, Mr. Ray folded it and gave it to Mr. Faver. Mrs. Faver explained her conduct by stating that she trusted her fiance, and she said that she was unaware that the agreement provided that she was to receive the sum of $2,500 in consideration of her waiver of dower, homestead, statutory allowances, or other rights in her future husband’s estate. A party’s testimony is not treated as undisputed, Raiborn v. Raiborn, 254 Ark. 711, 495 S.W. 2d 858 (1973). This does not mean, however, that the Chancellor, who had the advantage of observing Mrs. Faver’s demeanor, was obligated to disbelieve her testimony.
The antenuptial agreement also provided that Mr. Faver waived all claims including curtesy in his wife’s estate, in the absence of this provision, it would only have been necessary for Mrs. Faver to execute a new will following her marriage in order to divest her husband of his curtesy. Ark. Stat. Ann. § 60-501. (See compiler’s notes showing the language of this statute prior to the 1970 amendment.) Mrs. Faver contended that a day or so later her fiance gave her a $2,500 check which was dated October 18, 1967. This check was received in evidence and marks on it show that it cleared the bank on October 26.
It was stipulated that on the date of execution of the antenuptial agreement Marcus Faver was the owner of a one-half interest in 80 acres in Jefferson County, a two-thirds interest in another 52 acres, and that he owned outright another 700 acres of which 600 acres were used for farming. The farmland had an estimated value of $375 per acre. It was also stipulated that the 106 acres then owned by Mrs. Hughes were worth approximately $375 per acre. The stipulation was silent as to the ownership of personal property by either party.
The Chancellor excluded as a violation of the parol evidence rule Mrs. Faver’s testimony that the tender of the $2,500 was accompanied by Mr. Faver’s oral assertion that he was giving the money to her and that she should take it and use it as she pleased, and that when the crop was gathered, more money would be given. The ruling of the court on this evidentiary issue is assigned as error on the cross-appeal. Appellee argues that the statement was admissible because it was made subsequent to the execution of the contract. It is true that the parol evidence rule creates an impediment only to the introduction of prior or contemporaneous oral agreements or prior written agreements offered to contradict or vary a written agreement. Scope and Operation of the Parol Evidence Rule in Arkansas, 4 Arkansas Law Review 168 (1950); Restatement, Contracts §237 (1934); American Southern Trust Co. v. McKee, 173 Ark. 147, 293 S.W. 2d 50 (1927). We do not understand that the statement purportedly made by Mr. Faver when he delivered the $2,500 check to his fiancee was offered to contradict or vary the prior written agreement. If it had been, then it is at least arguable that in the context of the particular circumstances, the delivery of the check was effectively contemporaneous even though a day or two late in time. We see the proffered evidence as being relevant to a different issue. If Mrs. Faver’s testimony concerning the events that occurred in Mr. Ray’s office is to be believed, then the statement made by Mr. Faver upon delivery of the check was admissible in further support of the designed concealment that was presumed to exist when credible evidence was introduced to show a substantial disproportion between the $2,500 and the size of his estate as well as a lack of disclosure. The evidence was admissible to throw light on the circumstances of the making of the contract. The statement attributed to Mr. Faver could be construed as an attempt on his part to avoid any further question with regard to the written contract that his fincee had signed but had not read.
Mr. Faver and Mrs. Hughes were married on November 4, 1967. Sometime later, Mrs. Faver sold 51 acres of her farmland and bought a $41,500 house in England into which she and her husband moved, but the property was deeded to her alone. Mr. Faver gave her $1,500 to get settled in the new house. She testified that she considered it a loan, but when she offered to pay it back, he refused, suggesting that it was equal to the amount he had just spent to buy the boys a new disc. At other times, Mr. Faver gave his wife $3,000 and $4,-100. Mrs. Faver said, “I just figured Mr. Faver was giving it to me. ” Mr. Faver turned over to his wife his social security checks, which she deposited along with her own in a joint bank account and she would give him money whenever he asked for it. Mrs. Faver developed a serious medical problem for which she sought treatment in California, and Mr. Faver would send her $100 per month while she was there. Mrs. Faver said she purchased clothes and gifts for her husband out of her own money.
Four or five years after their marriage, Mrs. Faver read the antenuptial agreement aloud to Mr. Faver and she testified that he commented that he did not tell Ralph Ray to fix those papers in that condition and “. . . that wasn’t the way he wanted them drawn up.” The evidence does not suggest that on this occasion he disclosed the extent of his estate or the amount she had surrendered in return for the $2,-500 she had received.
Mrs. Faver testified that until a divorce suit commenced in 1977, she never learned the amount of property that was owned by her husband. She acknowledged that she knew when she was contemplating the marriage that Mr. Faver was a man of some means — that he owned at least a part interest in more than 40 acres. She said she never quizzed him except that on one later occasion, she asked how many acres he owned with Miss Sadie (his brother’s widow) at Swan Lake, and he said he didn’t know and that he “would have to figure.” According to Mrs. Faver, at different times during their marriage, her husband told her that she would be taken care of — that he wanted the boys to have the land to farm and that Mrs. Faver would receive her part in cash money. On the other hand, he told her he did not have a will because wills were made to be broken.
On February 23, 1977, approximately ten years after their marriage, Mr. Faver executed a will leaving his entire estate to be divided equally between his three sons. In the late spring of 1977, Mr. and Mrs. Faver became estranged and they separated on May 26, 1977. On June 8, 1977, Marcus Faver filed suit for divorce. Pearl Faver answered and counterclaimed. Mr. Faver died unexpectedly on December 7, 1977 at the age of 79 before any action had been taken in the divorce proceeding. Mrs. Faver then brought the action from which this appeal lies seeking cancellation of the antenuptial agreement and an award to her of her statutory rights in the property of her deceased husband.
Ralph Ray, though living in England at the time of the trial, was neither deposed nor called as a witness by either party. When the Chancellor proposed that Mr. Ray be called as a witness of the court pursuant to Rule 614, Uniform Rules of Evidence, the appellants made no objection and stated that any attorney-client privilege was waived. Pearl Faver’s attorney, on the other hand, objected, stating that the court should not try to defend the lawsuit but should leave it up to the defendants to call witnesses to prove that the antenuptial agreement was validly entered into. He preferred to take safe advantage of appellant’s failure to call Mr. Ray and argued that an inference unfavorable to appellants arose when the attorney who was within the subpoena power of the court and who was employed to prepare the agreement was not called to testify in its support. Cf. Canal Ins. Co. v. Hall, 259 Ark. 797, 536 S.W. 2d 702 (1976); Phillips Const. Co. v. Williams, 254 Ark. 824, 496 S.W. 2d 417 (1973); Ark. State Highway Comm. v. Phillips, 252 Ark. 206, 478 S.W. 2d 27 (1972); Reliable Life Ins. Co. v. Elby, 247 Ark. 514, 446 S.W. 2d 215 (1965). The Chancellor then commented that he wanted to get the truth, and he instructed the bailiff to phone Mr. Ray at England, a driving distance of only 45 minutes from the Jefferson County Courthouse. When it was reported that Mr. Ray could not be reached, no further effort was made to produce him nor did either party ask for a continuance or other remedy. In McCormick’s Handbook on Evidence, 2d Ed. (1972) §272, caution is suggested in allowing the inference. Among other things, it is there stated that conjecture or ambiguity of inference is often present, and the availability of modern discovery procedures serves to diminish both the justification and need for the inference. Here there is no compulsion to decide whether or not an inference adverse to appellants arose upon their failure to call Mr. Ray. Where the provision in an antenuptial agreement is disproportionate to the means of the intended husband, a presumption of designed concealment is raised, which throws the burden upon those claiming in his right to prove that there was full knowledge on the part of the intended wife of all that materially affected the contract. Davis v. Davis, 196 Ark. 57, 116 S.W. 2d 607 (1938); Burnes v. Burnes, 203 Ark. 334, 157 S.W. 2d 24 (1941); Wylie v. Wylie, 249 Ark. 316, 459 S.W. 2d 127 (1970); Arnold v. Arnold, 261 Ark. 734, 553 S.W. 2d 251 (1977). This presumption needed no adverse inference to support it where there was no preponderating proof that Mrs. Faver knew the nature and extent of her husband’s property. In Arnold v. Arnold, supra, it was noted that the attorney who prepared the two drafts of the antenuptial agreement at the request of Floyd Arnold and with whom both parties consulted was not called as a witness even as to the conferences. There the court pointed out that the presumption of designed concealment must be overcome by a preponderance of the evidence. See generally Rule 301 (a) Uniform Rules of Evidence, providing that a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. The disproportion between a widow’s dower in the land owed by Mr. Faver in 1967 and the sum of $2,500 is apparent. The stipulation covered only Mr. Faver’s landholdings and no effort was made to prove the extent of his personal property. He must have possessed some personal assets because he made substantial cash gifts to Mrs. Faver during their marriage. The burden of proof was upon the appellants to prove by a preponderance of the evidence that Mrs. Faver had full knowledge of all that materially affected the contract.
The only witnesses produced by appellants were Sadie Faver, a sister-in-law to Marcus Faver; Kay Faver, a daughter-in-law of Marcus Faver; and Albert Faver, the middle son of Marcus Faver and co-executor of his estate. Sadie Faver said that after the death of her husband, E. C. Faver in 1961, she discussed with Pearl Hughes how E. C. Faver had disposed of his property. Marcus Faver had inherited 135 acres from E. C. Faver’s estate. She had no knowledge of the value of Marcus Fayer’s estate nor the extent of his landholdings on October 18, 1967. She said that Marcus Faver wasn’t noted for telling his business. She acknowledged that both Pearl and Marcus Faver were known to her to be truthful persons. Kay Faver stated that within a month after the marriage of Marcus and Pearl Faver, Pearl had stated that she wanted nothing that Louise [Faver] had saved and worked for during their life and that her own estate was for her children and that is what the marriage agreement was for. Kay Faver knew nothing about the number of acres owned by Marcus Faver or the value of his estate. She had been present when Marcus Faver had discussed the marriage agreement with his sons, but she did not recall that Pearl Faver was present. Albert Faver denied that he had ever made a statement to the effect that he would move off of the property if his father did not get a marriage agreement with Pearl Hughes. He should know, so there was apparently no detrimental reliance on his or his father’s part on this account although Pearl had understood that he made the threat.
Appellants contended that Pearl Faver was estopped to deny the validity of the antenuptial agreement because she had accepted $11,100 from Mr. Faver following execution of the agreement and that she had in addition drawn $990 from the joint bank account of the parties after her separation from her. husband. We find nothing in the record to suggest that this money was accepted by her as her share of the estate. The Chancellor found that the original payment of $2,500 and the three subsequent payments totalling $8,600 were not gifts but that all of these sums were given in consideration for signing of the antenuptial agreement as amended by subsequent oral modification, in other words, the Chancellor found that the written agreement was amended by Marcus Paver’s action in making subsequent gifts to his wife so that when the agreement was voided, the total sum of $11,100 should be returned to the estate to place the parties in the same condition they were in before the contract was signed. There is no evidence to suggest that the gifts of $8,600 made subsequent to the marriage were in fulfillment of an amendment to the written contract and therefore that portion of the Chancellor’s Order which required the return of this sum to the estate is reversed. On the other hand, the $2,500 given to Mrs. Faver soon after the agreement was signed should be credited to her share of her husband’s estate, since the agreement is invalid. The Chancellor made no order concerning the sum of approximately $990 withdrawn by Pearl Faver from the joint bank account after their separation but left this matter for appropriate adjudication in the Probate Court proceeding. No contention is made that this ruling was erroneous.
In support of their estoppel argument, appellants cite Comstock v. Comstock, 146 Ark. 266, 225 S.W. 621 (1920). There the parties entered into an antenuptial agreement wherein the wife agreed to take a child’s interest in lieu of dower since the husband had six children by a prior marriage. After the parties had lived together for about five years, the husband paid $2,000 to his wife in settlement of the antenuptial contract. Later, the wife refused to release her dower interest in certain real estate and an action was filed against her to confirm the antenuptial contract and the settlement. The testimony was conflicting, but the court held that it was convinced from the evidence that the antenuptial agreement was a just and reasonable one. The $2,000 that was paid to the wife was in lieu of the provisions made for her in the antenuptial agreement. No charge of fraud was made. Since the contract was fair and reasonable, it was upheld and since the wife had accepted the $2,000 as her share of her husband’s estate, she was held to be estopped from claiming that the agreement by which this settlement was consummated was invalid. On the other hand, Mrs. Faver should not be estopped merely because she accepted $2,500 particularly since she said she was promised her share in cash and the appellants failed to produce a preponderance of the evidence to overcome the presumption of designed concealment.
Appellants contend that appellee could reasonably have acquired knowledge concerning the extent of her husband’s estate, citing Hughes v. Hughes, 251 Ark. 63, 471 S.W. 2d 355 (1971). There, Ethel H. Hughes, an experienced real estate broker who was familiar with most of the property of Judge Hughes, her fiance, examined the antenuptial agreement about two weeks before she signed it. She admitted that she had an opportunity to take it to one of the several attorneys with whom she had previously consulted on real estate matters on at least half a dozen occasions. The agreement was upheld in a subsequent divorce proceeding where no contention was made that Judge Hughes had set a value on his properties which was less than actual, and there was no evidence of designed concealment nor of fraud in any respect. The opinion states that Mrs. Hughes could reasonably have had, or acquired, a knowledge of the value of the properties before the agreement was executed, so that a mere disproportion between Judge Hughes’ means and the provisions made for his wife was insufficient to void the agreement. The circumstances in Hughes do not compare with the events that transpired in Mr. Ray’s office as described by Mrs. Faver, nor with the promise of Mr. Faver that his boys would get his land but his widow would get her share of his estate in cash. Even if Mrs. Faver had been given an opportunity to search out Mr. Faver’s real estate holdings, it would be difficult, to say the least, for her to ferret out the extent of his personal property estate. She was not required to do so. All that was required to make the antenuptial agreement final and binding was for Mr. Faver to employ the frankness and candor that married people have the right to expect of one another and which usually leads to a successful marriage. Senior citizen though he was, he assumed the obligation to love, honor, and support his bride, and to honor her dower rights until she voluntarily surrendered them in a knowing way. On the other hand, Mrs. Faver was free to divest her husband of curtesy in her estate at any time after their marriage.
Pearl Faver is entitled to have all rights in the estate of her deceased husband, Marcus C. Faver, afforded to widows under the law, diminished oply by the sum of $2,500, plus interest thereon at 6% from October 18, 1967 to December 7, 1977 (the date of Mr. Faver’s death) amounting to $1,520.54.
Harris, C.J., and Fogleman and Holt, JJ., not participating.
Special Justice Thomas B. Burke joins in the majority opinion.
Special Justice William J. Wynne and Byrd and Hickman, JJ., dissent. | [
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Lyle Brown, Justice.
These are two separate slander actions instituted by Bose Marie McClain, appellant here, against appellees Glenn Anderson and Bill J. Short. The actions were consolidated on appeal. Appellant was a teacher and appellees were members of her school board. The allegedly slanderous remarks were made during the course of a meeting between the school board and appellant. The trial court granted appellees’ motions for summary judgment on the grounds that the remarks in question were at least conditionally privileged and would require a showing of malice as a basis for recovery; and that there was no evidence from which a jury could find malice. Appellant contends that any privilege which existed is shown by the record to have been abused and sufficiently to make a jury question.
In ascertaining whether there is a genuine issue as to any material fact we view the proof in the same light as if it were a motion for a directed verdict. Russell v. City of Rogers, 236 Ark. 713, 368 S.W. 2d 89 (1963). The deposition of Mrs. McClain was considered by the trial court and we summarize the essential contents in the light most favorable to her:
She is a graduate of the University of Arkansas and her five years teaching experience has been at Greenland, Washington County. She was discharged about. April 15,1967, and consequently missed the salary checks ordinarily due under her contract for the following three months. Superintendent Watson, Mr. McClain, and the members of the school board were present at the special meeting called for the purpose of giving appellant a hearing. There the superintendent made the statement that she was being discharged; and there, followed a general discussion. Appellee Short stated Mrs. McClain had entered the superintendent’s office under false pretenses and read the minutes of the previous board meeting. Appellee Anderson stated that appellant could not take orders and also caused dissension and uproar among the teachers. Both men appeared to be angry and upset when they made those statements. Sometime prior to April 15 appellant asked the superintendent to permit her to read the minutes of the previous board meeting. He refused but he discussed with her the contents of the minutes insofar as they related to her. Subsequently and at a time when the superintendent was out of town, she went to his office and asked the secretary’s permission to use the telephoue in Watson’s private office. While using the telephone she noticed the minute book on a table and read the minutes made of the March meeting. She subsequently discussed the contents with some of the teachers. It was not uncommon for teachers to read the minutes when a question of policy arose. The teachers often used the superintendent's telephone and Mrs. McClain stated that was her real reason for entry at the time mentioned. At the board meeting she asked to express her opinion as to her conduct. She concluded from the mannerisms of the board members that they did not care to hear from her. The tempers of the board members flared, as well as her own.
Other matters before the trial court on the motions for summary judgment were the pleadings in the case and the deposition of Bill Watson, the superintendent. The complaints alleged the statements of Short and Anderson to have been false and spoken with malice; and that they were uttered with the intent of impeaching Mrs. McClain’s professional reputation and to expose her to public ridicule. She alleged compensatory and punitive damages. General denials were entered by both defendants; and thereafter each moved for summary judgment. The latter motions asserted that their statements were made during a regular meeting of the school board and were absolutely privileged, and further alleged that the statements as a matter of law did not contain slanderous words.
Superintendent Watson testified that he recommended appellant’s discharge on grounds of insubordination and creating dissension among the teachers. He said the first charge was based on her having read the school board minutes after being instructed to the contrary; and the latter charge arose from appellant’s revelation of the minutes to other teachers. It is evident that the superintendent discussed his information with the board members prior to the meeting. That fact gave ris.e to the statements made to Mrs. McClain by appellees. Watson conceded that the statements were made to Mrs. McClain in answer to her inquiry about, the reasons for her discharge.
Wo agree wit'll the trial court that the statements of the hoard members were conditionally privileged. They were, discharging a public duty in a meeting to discuss reported incidents of misconduct by Mrs. McClain. The reported incidents were germane to a decision on the renewal of her teaching contract. The same setting is found in the facts of Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121 (1958). Thiel points out that it is a condition of the privilege that a defamatory statement should not be made by one who knows it to be untrue; also, a speaker who is motivated by malice rather than by the public interest that calls the privilege into being loses the privilege. The privilege can also be lost if the speaker goes beyond what the occasion requires. Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 140 S.W. 257 (1911) We must examine the depositions in light of those stated principles, resolving all reasonable inferences in favor of Mrs. McClain.
It certainly cannot be said of appellees that they made statements known by them to have been false. Mrs. McClain concededlv entered the superintendent’s private office in his absence; her stated purpose was to use the telephone; and she read the minutes notwithstanding Mr. Watson’s orders to the contrary. It was not unreasonable for Mr. Short to conclude that she entered the office under a pretense of using the telephone. Mr. Anderson allegedly stated that Mrs. McClain could not take orders. The only conclusion we can reach from the evidence is that he was referring to her violation of the superintendent’s direction not to examine the minutes. Anderson is said to have further stated that she "caused dissension and uproar among the teachers.” Mrs. McClain conceded that she discussed the contents of the minute book in the teachers’ lounge with other teachers and the record amply supports resulting dissension.
Whether the statements attributed to appellees were true in all respects is not controlling. It is not disputed that the information they repeated had been conveyed to them in their capacities as school board members. Even had their informants been actuated by malice, such fact would not evidence that, the board members were acting with malice. Odgers, Libel and Slander, 6th Ed., p. 282 (1929). If it be conceded that appellees showed indignation at the alleged misconduct, that fact would not be evidence that they were acting from spite or ill will. Nest., Torts, § 603 a (1938). The most that the record discloses is that Mrs. McClain disobeyed the order of the superintendent and read the minutes of the last board meeting. With the information there obtained she discussed personnel matters with other teachers and sufficient discord resulted to justify a special board meeting. The subject of that meeting was the alleged misconduct of appellant. Having given credence to the information they possessed, appellees adopted it in substance and repeated it as their opinion. The assertions having been made on a conditionally privileged occasion, appellant must then assume the burden of proving the occasion was abused. Rest., § 613 (1) (g), f.; Prosser, Torts 3d Ed. HB, p. 823.
Finally it is argued that malice should be inferred because Superintendent Watson denied appellant her lights under the Freedom of Information Act. Arid Stat. Ann. §§ 12-2801-2807 (Repl. 1968). Assuming that the incident showed malice on the part of Watson, that assumption would not, as pointed out by Odgers, be evidence that the board members acted with malice.
When we consider the matter-of-fact statements alleged are shown to have been based on substantial facts, coupled with a showing of conditional privilege, we hold it then became incumbent on appellant to come forward with evidence, of malice. The trial court held she failed in that respect and we agree.
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John A. Fogleman, Justice.
Appellee, an Arkansas corporation, filed suit against appellant, an Illinois corporation, on April 20, 1978, alleging that appellant had breached a contract under which appellant was to provide new cars which appellee was to sell at a retail outlet. A summons was issued and it and a copy of the complaint were sent by registered mail to the appellant’s designated agent for service in Illinois, CT Corporation. The return receipt indicated that the complaint, summons and a letter from the appellee’s attorney had been received by CT Corporation on April 24, 1978. No answer was filed by the appellant and on June 8, 1978, the appellee moved for a default judgment. The trial judge granted the motion and held a hearing on the amount of damages, resulting in a judgment in favor of the appellee for $58,533.03 plus costs and interest, entered on June 8, 1978.
The appellant filed a “Motion to Set Aside and Vacate the Judgment” on July 6, 1978. The appellant later filed a first and second amendment to this motion. A hearing was held on the motion on August 29, 1978. The trial judge found that the term of court in which the judgment was rendered had expired prior to the filing of the motion, that appellant had more than 30 days’ notice prior to the entry of judgment and that appellant had failed to make a prima facie case of any meritorious defense and denied the motion. This appeal followed.
The appellant has raised three points for reversal, but only two will be discussed. The other point relates to appellee’s first attempt to obtain service of process on the appellant through the Pulaski County Sheriff’s Office and the Secretary of State. Appellee concedes in its brief that this attempted service was not perfected, and therefore it will not be discussed.
The first point to be considered is the appellant’s contention that the service of process on the appellant, pursuant to Ark. Stat. Ann. § 27-2503 (Supp. 1977), was improper because the summons and complaint were mailed to the appellant’s agent for service in Illinois, rather than to the appellant itself.
We find it unnecessary to rule on the validity of the service in our disposition of this appeal, because appellant failed to show that it had no knowledge of the proceeding and had a meritorious defense.
Ark. Stat. Ann. § 29-509 (Repl. 1962) provides in part: “A judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered . ... ” The word “valid”, as used in the statute, has been judicially determined to be synonymous with, or equivalent to, “meritorious.” Berringer v. Stevens, 145 Ark. 293, 225 S.W. 14. Therefore, before the appellant in this action would be entitled to have the default judgment of June 8, 1978, set aside or vacated, it must meet the burden of a prima facie showing of the existence of a meritorious defense against the action of the appellee. Burnett v. Burnett, 254 Ark. 507, 494 S.W. 2d 482; Agee v. Wildman, 240 Ark. 111, 398 S.W. 2d 542. In a frequently quoted portion of Nichols v. Arkansas Trust Co., 207 Ark. 174, 179 S.W. 2d 857, we said:
In a long line of cases beginning with State v. Hill, 50 Ark. 458, 8 S.W. 401, and extending to O'Neal v. Goodrich Rubber Co., 204 Ark. 371, 162 S.W. 2d 52, and David v. Bank of Atkins, 205 Ark. 144, 167 S.W. 2d 876, this statute [§29-509] has been construed as imposing the requirement that a prima facie showing of a valid defense be made before the judgment will be vacated, although it is shown that it was rendered without notice. The practice under this statute is defined in the case of Jerome Hardwood Lumber Co. v. Jackson-Vreeland Land Corp. 160 Ark. 303, 254 S.W. 660.
It is also well established that, on a motion to vacate a default judgment, the movant must first demonstrate that he did not know of the proceedings in which the judgment was rendered. Employers Mutual Casualty Co. v. Buckner, 233 Ark. 564, 345 S.W. 2d 924. From the opinion:
* * * After the entry of a default judgment the defendant’s attack should be directed against the judgment rather than against the service of process. Files v. Robinson & Co., 30 Ark. 487, 495. Although a judgment may be set aside for unavoidable casualty upon a showing that the defendant was not served with process, the defendant must also show that he did not know of the proceeding against him and that he has a meritorious defense. Hunton v. Euper, 63 Ark. 323, 38 S.W. 517; Blanton Co. v. First Nat. Bank, 175 Ark. 1107, 1 S.W. 2d 558; O’Neal v. B. F. Goodrich Rubber Co., [supra] In the case at bar the appellant has not alleged and has not proved either that it did not know of this proceeding or that it has a defense. An order merely setting aside the service of process would accomplish nothing, for the appellant would still be subject to liability upon the judgment.
Although Renault Central, Inc. did allege, in its motion to vacate the default judgment and the two amendments thereto, the existence of a meritorious defense to the action and that the summons and complaint were not received by Renault USA, the parent company of Renault Central, until July 6, 1978, there was no proof presented at the hearing on August 29 to substantiate either of these allegations. As a matter of fact appellant presented no evidence at all.
A trial judge has wide discretion in determining whether a default judgment should be vacated and this court will not reverse the decision of the trial judge unless he has abused that discretion. Jetton v. Fawcett, 264 Ark. 69, 568 S.W. 2d 42 (1978); and Davis v. McBride, 247 Ark. 895, 448 S.W. 2d 37. In a case such as this, where no attempt was made to show either the existence of a meritorious defense or a lack of knowledge of the pendency of the proceeding, we cannot say that refusal to grant a motion to vacate was an abuse of discretion.
The appellant’s final point for reversal, a contention that the damages awarded to the appellee were arbitrary, excessive and improper, has merit and requires that this case be remanded for a hearing on the amount of damages. The complaint alleged that the appellee had hired new employees, made alterations to its sales outlet premises and incurred substantial advertising expenses, all in preparation for the retail sale of automobiles supplied by the appellant. It was further alleged that the appellant had assured the appellee that it would compensate the appellee for any expense or loss occasioned by the appellee putting the automobiles in a merchantable condition and that the appellee had suffered damages to its business reputation due to the unmerchantable condition of the automobiles delivered by the appellant. The only specific amounts pleaded by the appellee were $4,-010.20 loss in the resale of the vehicles which were delivered in an unmerchantable condition and $6,676.83 for parts, tools and other items which were returned to the appellant by the appellee. The prayer was for total relief of $79,500.00.
The hearing on the amount of damages was held on the same day that the default judgment against the appellant was entered. The only witness at this hearing was Frederick Martin Gray, an employee of the appellee. As a result of this hearing, the trial judge awarded the appellee damages in the amount of $58,533.03, itemized as follows: $4,010.20 for loss due to unmerchantable condition of cars; $7,022.83 for returned parts and tools and unreimbursed warranty repairs made by the appellee; $8,000.00 for expense of putting the cars in a saleable condition; $10,000.00 as one-third of the cost of an addition to the showroom, originally built to show cars supplied by the appellant, but used to house other cars at the time of the hearing; $4,000.00 for expense of hiring additional employees; $9,500.00 for projected profits lost on resale of vehicles due to unmerchantable condition; $7,000.00 for interest expense on financing of cars supplied by appellant and $8,000.00 for advertising expense. (The total of these amounts is actually $57,533.03, not $58,533.03.)
Kohlenberger, Inc. v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555, is the most recent pronouncement of this court concerning the award of damages following the entry of a default judgment. There we reversed an award for the appellee and remanded the cause for a determination of damages because there were elements of recovery in the award of damages which were not contained in the allegations of the complaint. For example, we found no basis for the award of damages for sums expended by the plaintiff for labor to grind and auger ice, because there was no allegation in the complaint pertaining to this item of damage. The appellee’s complaint in this case suffers from the same inadequacies. Two elements of the appellee’s recovery, interest expense and lost profits, were not even alleged in the complaint, more was awarded for the return of parts and tools than was pleaded and no specific amounts were claimed for the other elements of damages alleged in the complaint. As pointed out in Kohlenberger, a default judgment must strictly conform to, and be supported by, the allegations of the complaint, and a closer correspondence between the pleading and the judgment is required than would be after a contested trial on the merits. The following language from Kohlenberger is especially appropriate in this action:
The judgment was based on evidence heard by the court as well as the allegations of the complaint. Even if the evidence supplied the deficiencies, it would not support the judgment. The allegations of a complaint cannot be enlarged by evidence introduced to support a judgment by default. Kerr v. Kerr, 234 Ark. 607, 353 S.W. 2d 350. Although there was no evidence offered to show the true measure of damages in this respect, we find no reason to say that it could not be produced on a retrial, so the case will be remanded.
This case is remanded to the trial court for a hearing on the amount of damages to be awarded upon the default judgment entered in favor of the appellee, International Imports of Fayetteville, Inc.
We agree. Harris, C.J., and Holt and Purtle, JJ. | [
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John A. Fogleman, Chief Justice.
We are tremendously handicapped in our review of this appeal from the denial of appellant’s petition for post-conviction relief under Rule 37 of the Rules of Criminal Procedure by the mysterious abandonment of virtually all the grounds of the petition on appeal. The only point for reversal is: “The Court erred in not setting aside the verdict because the record does not show where an attorney was ever appointed for the defendant.” This point might be summarily disposed of because the record clearly shows that an attorney was appointed for appellant more than a year before he entered the plea of guilty. The argument in appellant’s brief does not appear to be consistent with the statement of the point. The entire argument is as follows:
Appellant only has one argument and that is that he does not remember anything that allegedly happened. That he was intoxicated and cannot remember when in an intoxicated state. The record does not indicate that he was advised of his rights or properly appointed attorney.
Appellant states further that for the reasons set out above that the sentence be vacated and that he be released from his present confinement.
The scope of the argument is broader than the point stated. This argument could properly be disposed of under the rule of Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606. Instead, we have reviewed the record as abstracted and find reversible error.
Appellant was sentenced to 15 years on July 18, 1978, upon his plea of guilty to a charge of raping his daughter, then 12 years of age, on April 7, 1977. This plea was entered after observation of appellant at the Southeast Arkansas Mental Health Clinic, and several continuances of his trial. The clinic had reported that appellant was without psychosis, appeared to understand the charges against him, and seemed to be responsible for his actions at the time of the report.
Appellant’s motion under Rule 37 was filed February 26, 1979. Appellant alleged that:
1. He was questioned at length on several different occasions without an attorney present to represent him during all phases of the interrogation period.
2. He was represented by an appointed attorney, who made no effort to defend him, but threatened him with an excessive sentence should he desire a jury trial.
3. He was arrested without a warrant.
4. He was denied a preliminary hearing.
5. The prosecuting attorney presented false statements before the court.
Since appellant entered a plea of guilty, he is precluded from raising a defense on this appeal. Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553; Cromeans v. State, 242 Ark. 464, 414 S.W. 2d 399. The matter of his intoxication was not a matter properly to be considered on a petition for post-conviction relief. This relief is not available to one who could have raised the issue asserted on collateral attack in the trial court before sentencing, but did not. Coleman v. State, 257 Ark. 538, 518 S.W. 2d 487. For the same reason, the question of the voluntariness of his pretrial confession is not itself a basis for post-conviction relief. These matters are significant only in relation to the charge of ineffective assistance of counsel. The alleged denial of a preliminary hearing and the alleged falsity of the statements of the prosecuting attorney fall into the same category. See Keating v. State, 255 Ark. 638, 501 S.W. 2d 607.
When there is a collateral attack on a plea of guilty, rendered upon advice of counsel, the inquiry is not addressed to the merits of claims of constitutional deprivation prior to the entry of the plea, but it is focused upon the question whether the plea had been made intelligently and voluntarily upon advice of counsel. Such deprivations are pertinent only in evaluating the advice rendered by counsel. Horn v. State, 254 Ark. 651, 495 S.W. 2d 152. If appellant’s plea of guilty was entered voluntarily and was not the result of ineffective assistance of counsel, any other possible defenses, except for jurisdictional defects, were waived by him. Horn v. State, supra; Rimmer v. State, 251 Ark. 444, 472 S.W. 2d 939; Wilson v. State, 251 Ark. 900, 475 S.W. 2d 543. His petition does not assert any jurisdictional defects.
Our inquiry is confined, then, to the question whether the plea of guilty was voluntary and not the result of ineffective assistance of counsel. We begin with the presumption that counsel was competent. Horn v. State, supra. We might also infer that the alleged “threats” of counsel that, if appellant went to trial, he would get a sentence of more than 50 years and it would tear up appellant’s family, do not show ineffective assistance of counsel, because, if there was sufficient evidence to show that he committed the crime with which he was charged, such a sentence would not be an unlikely one, and “tearing up a family” would not be an unusual consequence.
Appellant’s allegations did entitle him to the hearing he was accorded on the question of ineffective assistance of counsel. Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95. The burden of proving his allegations rested upon petitioner. The trial court held that he failed to meet that burden. In order to overturn that holding, we would have to find that it is clearly against the preponderance of the evidence. Porter v. State, 264 Ark. 272, 570 S.W. 2d 615.
Appellant testified that his appointed attorney, David Powell, visited him in jail a couple of times, and that he had contacted his attorney during the eleven months he was at liberty on bond awaiting trial. He said that the attorney did not go over the case with him because there was nothing to go over and because appellant was stuck with a false statement, which Irons denied having made to the investigating officers. He stated that Powell did not want to hear anything about the statement and only wanted to hear about the case. He said that he told Powell that he knew nothing about the charge and that he had been drunk and was on the floor when he was awakened at about 2:30 a.m. on the date of the alleged rape.
Irons testified that he had made this incriminating statement after he had several times requested and been denied an attorney both before answering any questions and while being questioned. He said that he made this incriminating statement upon the understanding that he would be sent to the state mental hospital for help he needed in connection with his drinking, and that this statement, prepared by an officer, would help in getting him admitted. The statement Irons signed related that he was intoxicated at the time of the alleged occurrence and didn’t remember what had happened; that he did remember having picked up his children at his brother’s house and having played dominoes and eaten some eggs with them, after which he sent all of them except Gloria to the front room and sent her to the bedroom, where he later went, pulled off her panties and laid down and tried to have intercourse with her, but did not know whether he did or not; and that he then told Gloria to go take a bath, but remembered nothing after that until his wife awakened him at about 2:00 a.m. At that time, his pants were unzipped but his belt was still fastened.
The record in this case does not reflect any compliance with Rule 24.5, Arkansas Rules of Criminal Procedure; Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); and Byler v. State, 257 Ark. 15, 513 S.W. 2d 801. This rule, and the cases cited, require that the trial judge ascertain whether a plea of guilty is voluntary. There is no constitutional requirement that the trial judge make the explanations of the right to jury trial and of the maximum possible sentence required by Boykin, and a silent record does not require automatic reversal, if it be proved at a post-conviction evidentiary hearing that the plea was voluntarily and intelligently made. Smith v. State, 264 Ark. 329, 571 S.W. 2d 591. On the record before us, under the holding in Smith, the question is whether the plea was intelligently and voluntarily made. The burden, which would otherwise have been on appellant, fell upon the state at the post-conviction hearing as to the plea of guilty, in view of the absence of any record of the proceeding when the plea of guilty was entered. The key question on a record like this is whether the deficiencies in the proceedings were supplied by the record made at the post-conviction hearing. Byler v. State, supra. The findings of the trial court would so indicate.
We are unable to find an appropriate basis for the trial court’s findings. The record, as abstracted by appellant’s attorney, shows that a hearing on a motion to suppress appellant’s statements as involuntary was set, but no dispo sition of that motion is shown by the record. The. attorney who represented Irons did not testify. Appellant’s testimony stood uncontradicted. He said that he told his attorney he would not enter a plea of guilty, and that he did not plead guilty of his own free will, but did so because his attorney told him if he went to trial they would tear his family up and he would get 50 years, because “they” wanted him to plead guilty. He also testified that, when he appeared before the judge for the entry of a plea, he told the judge he was not guilty, but that he would take the 15 years the state had offered to recommend. When the judge refused to accept that plea, Irons said that he said, “Well, I’m not guilty, but I plead guilty and take the fifteen” and that this was the way the plea went down. He stated that he was not satisfied with his attorney, and that he thought he had gotten a bad deal from the law officers. Irons said that he had never been in court before.
It may well be that a proper plea agreement, advantageous to Irons, had been entered into, and properly carried into effect, but the record does not so disclose. It was mandatory that the trial court determine whether the plea was the result of a plea agreement, require that the agreement be stated, and, if the judge had not previously concurred in the agreement, advise the defendant that the agreement was not binding on the trial court and that the disposition, if the plea was entered, might be different from that contemplated by the agreement. McGee v. State, 262 Ark. 473, 557 S.W. 2d 885. It was also mandatory that the trial judge determine whether there was a factual basis for the plea. Rule 24.6, Arkansas Rules of Criminal Procedure.
It may well be that there was full compliance with all the requirements essential to sustain the plea of guilty. We do not hesitate to say that all deficiencies in the record of the plea proceedings might have been corrected by evidence of compliance presented at the Rule 37 hearing. But the state totally failed to make the necessary showing. The prosecuting attorney did not resist appellant’s request for a jury trial and left the matter with the court. We cannot, on the record made in the trial court, justify affirming this judgment, in spite of the unsatisfactory presentation of the matter on behalf of appellant. So far as this record discloses, the assistance of appellant’s appointed trial counsel wás ineffective and appellant’s plea of guilty was not intelligently and voluntarily made.
The judgment of the trial court is reversed and the cause remanded with directions to set aside the sentence imposed and the judgment of conviction, and for further proceedings on the charge against appellant.
Stroud and Mays, JJ., not participating. | [
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George Rose Smith, Justice.
The question is whether the chancellor was right in holding that the plaintiff-appellants were not entitled to accelerate the maturity of a note and mortgage because of the debtors ’ 48-hour delay in tendering the amount of the third monthly installment. We hold that the chancellor was right.
On April 8, 1968, Seay and his wife sold the Rose Haven Motel in El Dorado to the appellees, E. T. Davis and his son, T. G. Davis, for $185,000. The Davises made a down payment of $30,000 and gave a note and mortgage for the remainder, payable in monthly installments of $1,682.21. The first two payments were made within the one-month grace period allowed by the contract, but the check for the next payment given on July 29 by T. G. Davis was returned for insufficient funds on July 31 — the last day of the grace period.
Seay at once exercised his option to accelerate the maturity of the note and without advance notice to the Davises filed this foreclosure suit on August 2. The court appointed a receiver, who operated the motel at a profit until he was discharged. The Davises’ answer tendered the amount of the delinquency, plus court costs and an attorney’s fee, and asked that the acceleration of the debt be set aside and that the receivership be terminated. After a hearing the court entered a decree which in effect granted the debtors the relief they sought but retained jurisdiction to renew the receivership if the debtors should again become delinquent.
It was formerly our rule that equity would grant relief against an attempted acceleration only for aeci dent, mistake, fraud, or other inequitable conduct. Johnson v. Guaranty Bk. & Tr. Co., 177 Ark. 770, 9 S.W. 2d 3 (1928). That rule has been changed by the Uniform Commercial Code, which reads:
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. Ark. Stat. Ann. § 85-1-208 (Add. 1961).
The note in this case falls within the intent of the code, its language being that in the event of default the note may be accelerated “at the option of the holder.”
Thus under the Code the issue centers upon Seay’s good faith. In our opinion the weight of the evidence supports the view that Seay did not in good faith believe that “the prospect of payment or performance” had been substantially impaired. Before the default occurred Seay had complained to the elder Davis that-his son was not capable of managing the motel properly. In our judgment that grievance was effectually answered by Davis’s assurance that if a delinquency-in the installment payments should occur Davis would, on being notified, make it good within three hours. According to Mr. Davis’s testimony, which the chancellor evidently accepted, Seay promised to give Davis notice (and, inferentially, an opportunity to pay the arrearage) before filing a foreclosure suit. No such notice was actually given.
Moreover, on the issue of good faith it is important to remember that the sellers had received a $30,000 down payment and two monthly installments totaling more than $3,000. That the receivership proved to be profitable confirms the conclusion that the property itself could be expected to liquidate the indebtedness against it within the time and manner provided by the note and mortgage. On the record as a whole we cannot say that the chancellor was wrong in concluding from the Davises’ testimony that the seders were motivated by a desire to turn the down payment into a quick profit rather than by a good faith conviction that the purchasers could not perform their contract.
Affirmed. | [
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PER CURIAM
An agency determination held claimant ineligible for unemployment benefits under the provisions of Section 4(c) of the Arkansas Employment Security Law. The appeal tribunal affirmed the determination. On appeal to the Board of Review the appeal tribunal’s decision was affirmed. Claimant appeals to this court.
Claimant is employed 180 .days a year by the U.S. Forestry Service. He claims other forestry service 180-day employees have no trouble drawing unemployment compensation and thus he is the victim of discrimination. We can only evaluate employment security claims on an ad hoc basis. Our job is to determine whether the claimant has been denied compensation according to the law. We certainly would not approve any discriminatory practice, but we can review only the claims that come before us.
The claimant has worked 180 days a year for the past five years. The last 180 days worked were between October 2, 1978 and June 21, 1979. One of the pecularities of his job with the U.S. Forestry Service is the fact he is allowed only 180 work days per year. Because of the job location the claimant lives in a remote rural area of Deer, Arkansas. Deer is approximately forty miles from Harrison, Clarksville, and Russellville. He walks from his home to his Forestry Service job. His testimony indicates he wants very much to retain his 180 day job and work toward getting on Civil Service. His home is within 12 miles of his wife’s place of employment at the present time. Claimant testifies he would move if he went to work at Harrison, Russellville or Clarksville. But he is conditional about whether he would accept work forty miles away. “I’m not placing any restrictions. If they will refer me to a job, I’ll go or if I find one, I’ll go talk to them about it. I can’t say whether I’d take it until I do talk to the employer. I might not even be qualified. I’ve got to at least know what I’m getting into, know what I’ve got.”
Referee: But you say you’re available for job out there if you could . . .
Claimant: Yeah, in the area. I was reading a book here. If I can find the page, I’ve looked all the way through. I didn’t know what I was going to get into really. Says, available for work and being ready to accept work at once and make a reasonable effort to find work. To me I think I’ve made a reasonable effort to find work. Actually there’s not that much work, if any. If there are I haven’t been able to find any. It says, all states require that a claimant be willing to accept suitable work in the locality in which residing. Well I don’t know how far out this locality is gonna run and ah it said, also said, you can’t move out of a locality which has work for you and draw unemployment. I’ve certainly not moved out of it, I’ve lived there all my life.
Referee: Staying there aren’t you.
Claimant: Yeah.
We can certainly understand the dilemma in which the claimant finds himself. He wants and expects to return to his Forestry Service job each year in October. He would accept a full time permanent job if he could find one in his neighborhood provided it paid something near the rate of pay he has been receiving for his service with the U.S. Forestry Service. In the remote rural area where he resides this is virtually impossible as there are practically no jobs available.
The appeal tribunal found the claimant is not making a reasonable effort to find employment other, than of a very temporary nature as he plans to return each October to his Forestry Service job. It also found the claimant was not doing those things a reasonable prudent individual would be expected to do to secure work under the meaning of Section 4(c) of the Arkansas Employment Security Law. The Board of Review adopted the findings of the appeal tribunal.
We affirm. | [
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James H. Pilkinton, Judge.
This is a highway condemnation case. M. F. Cash and wife were the owners of two parcels of land adjacent to Highway 62/65 north of Harrison, Arkansas. The first parcel was a triangular shape containing .20 acre fronting for approximately 190.9 feet on the highway. Of this parcel the Arkansas Highway Commission condemned and acquired .12 acre in fee simple, which is designated as Tract 52, leaving a residual of .08 acre. The second parcel was an irregular shaped piece of land containing .18 acre, with 229 feet of frontage on the same highway-. Of this second parcel, the commission acquired .16 acre, designated as Tract 69, leaving a residual of .02 acre.
Mr. and Mrs. Cash own numerous billboards, some erected on their own land, and some located on property they lease from third parties. The two parcels involved in this case were purchased by them as locations upon which to erect billboards. At the time of taking, there were two billboards, containing three faces, located on Tract 52. There were two billboards, also containing three faces, located on Tract 69. In addition, there was a small building on Tract 69 which Mr. Cash rented. Both tracts were income producing.
Appellee Cash, as owner, and Mr. Gene Lair, a real estate appraiser, each valued Tracts 52 and 69 by capitalizing a “net” income figure which was derived from money produced from each piece of property. Mr. Cash estimated just compensation for the taking of Tract 52 to be $ 11,000.00 and estimated just compensation for the taking of Tract 69 to be $18,000.00. Mr. Lair estimated just compensation for the taking of Tract 52 to be $9,100.00 and estimated just compensation for the taking of Tract 69 to be $16,600.00.
Mr. Robert Palmer, a real estate appraiser, called by the commission, valued both tracts prior to condemnation by using the comparable sales approach as well as capitalizing the rent payable under billboard leases from other sign companies at other locations. He estimated just compensation for Tract 52 to be $1,900.00 and just compensation for Tract 69 to be $4,700.00. The issue, as to each tract, was submitted to the jury under proper instructions. The jury returned a verdict of $5,500.00 as just compensation for Tract 52, and $10,000.00 as just compensation for Tract 69. The commission has appealed from the judgment entered on these verdicts. The case has been assigned to the Arkansas Court of Appeals pursuant to Rule 29(3).
1.
Appellant first argues that the trial court admitted, over the objection of the commission, evidence of the gross income derivable from the sale of advertising space on the billboard located on the subject property. We agree that the admission of testimony regarding business income or profits, and use of that income to compute market value in an eminent domain action, is reversible error. Hot Springs County v. Bowman, 229 Ark. 790, 318 S.W. 2d 603 (1958). However, we do not understand from this record that the trial judge admitted such evidence. It is well settled that capitalization of income is a recognized method of arriving at the fair market value of real estate used to produce rental income in determining just compensation in eminent domain cases. Housing Authority of the City of Little Rock v. Rochelle, 249 Ark. 524, 459 S.W. 2d 794. The Arkansas Supreme Court has also held evidence of rental value to be admissible as a factor to be considered in determining just compensation. Desha v. Independence County Bridge District No. 1, 176 Ark. 253, 3 S.W. 2d 969. See also Housing Authority of the City of Little Rock v. Rochelle, supra.
As we view the record, the rule that evidence of profits derived from a business located on the land is not admissible as a basis for computing the market value of such property in condemnation proceedings is not applicable to the situation under consideration. The commission fails to distinguish between income from the property and income from a business conducted upon the property. This distinction furnishes the criterion for the applicability of the rule. NLR Urban Renewal v. Van Bibber, 252 Ark. 1248 at 1254, 483 S.W. 2d 223 (1972). Here we are dealing with net income from the property, something that would be the prime consideration of any prospective purchaser of income producing land. The evidence does not support the commission’s contention that the income in this case is of the type derived from a business located on the land. We find no merit in the first point urged by appellant for reversal.
II.
Appellant next urges that the trial court erred in failing to strike the testimony of Gene Lair, an appraiser for the land owner. The claim is that Mr. Lair valued the property by capitalizing the income of a business conducted thereon. We do not so understand the evidence. Mr. Lair was qualified as an expert in real estate appraisals. He stated his opinion as to the just compensation for each tract involved. As a qualified expert, Mr. Lair needed only to have stated his bare opinion. Ark. Highway Commission v. Hartsfield, 248 Ark. 821, 454 S.W. 2d 82 (1970). However, as appellant points out, the testimony of such a witness should be struck if it is shown to lack a sound and reasonable basis. Ark.-Mo. Power Co. v. Sain, 262 Ark. 326, 556 S.W. 2d 441 (1977). In the case before us, we cannot say Mr. Lair’s testimony lacked a sound and reasonable basis. He valued both tracts by capitalizing a “net” income figure derived from money produced from each piece of the property involved. He stated that the subject property was being used for the rental of sign locations and, in the case of Tract 69, also the rental of a commercial building. Mr. Lair said he considered such purposes to be the highest and best use of the tracts. He also testified that he considered the best approach to the true market value to be the income approach in view of the fact that both tracts were income property, and considering their shape and size. He explained the factor which he used, and the step by step method which he employed in the capitalization. He did not attribute all of the income from the signs on his property, but in his calculation subtracted $10.00 per. month per sign to cover proper deductions. On cross-examination Mr. Lair said that he deducted the vacancy ratio and other factors in connection with the operation of the sign. He testified that, to his knowledge, he deducted all the cost of maintaining the signs at their location. We are unwilling to say that appellant’s cross-examination of this witness destroyed his opinion of any fair and reasonable basis. Therefore, the court properly refused to strike his testimony.
III.
The State Highway Commission also claims the trial court erred in failing to strike the testimony of M. F. Cash, one of the owners. Mr. Cash testified that the fair market value at the time of the taking of Tract 69 was $18,000, and the fair market value of Tract 52 was $ 11,000. He arrived at these figures by capitalizing a “net” income figure which was derived from the rents produced from each piece of property. According to Mr. Cash, the taking totally destroyed the use of the land for income purposes, and he gave no value at all to the small fractions which were left. He said they were not suitable for rental as a location for highway signs which he said was their highest, best and only use. Since Mr. Cash was in the sign business, the State Highway Commission argues he valued the property by capitalizing the income of a business conducted thereon. Appellant asserts that Mr. Cash’s testimony does not constitute a fair and reasonable basis for the landowner’s value estimate.
Appellant agrees that a landowner is a competent witness to testify as to the value of his land simply because he Owns it. Ark. Highway Commission v. Jones, 256 Ark. 40, 505 S.W. 2d 210 (1974). However, as appellant points out, the landowner must relate a satisfactory explanation on cross examination to justify his value estimate. Ark. Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563 (1969); Ark. Highway Commission v. Darr, 246 Ark. 204, 437 S.W. 2d 463 (1969). In the case at bar Mr. Cash valued the property in question by using a percentage formula under which he placed a value on the property at 10 times the net annual rental. As appellee points out, a similar method was employed by an appraiser in Housing Authority of the City of Little Rock v. Rochelle, supra. The Arkansas Supreme Court said this was a crude but practical application of the income approach to the market value. Mr. Cash testified that he had bought a lot of property in the Harrision area, and knew land values there.
Even if Mr. Cash’s testimony be considered improper, reversal would not be required on this point because there is other sufficient evidence to sustain the verdict. It is evident that his testimony did not affect the verdict. Ark. State Highway Commission v. Ormond, 247 Ark. 867, 448 S.W. 2d 354 (1969). Any error in admitting the landowner’s value testimony did not enhance the award. The verdict was for less than the amount for which there is substantial evidentiary support.
IV.
The final argument of appellant is that the court erred in not directing a verdict in the amount of $1,900.00 on Tract 52, and $4,700.00 on Tract 69. This point is argued on the premises that the appellees failed to develop any substantial testimony to support their claim for just compensation, even when viewed in the light most favorable to them. Appellant contends that Mr. Palmer, an appraiser for the commission, furnished the only substantial evidence as to just compensation. We do not agree. As already mentioned, we find other substantial evidence in the record. The trial court was correct in refusing to direct a verdict for the commission based upon the values set by the expert who testified for the commission.
Affirmed.
Wright, C.J., not participating. | [
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Frank Holt, Justice.
Appellee brought suit against appellants alleging that she had sustained damages from the unauthorized use of her property by appellants.
Appellee owned a store building and rented a part of it as a meat market at $56 per week. Shortly thereafter, on June 11,1967, the tenant qnit business and surrendered possession, neglecting to remove several meat boxes and other fixtures. The appellants, as creditors of the lessee, secured a default judgment against the lessee and on September 11, 1967 levied upon the equipment. The deputy sheriff, following appellants’ instructions, posted a copy of the levy upon the front door of appellee’s building.
Thereafter, appellee communicated to appellants her request that the fixtures be removed from her building. Appellants failed to comply with this request. In January 1968, appellee served upon appellants a three-day “notice to quit,” pursuant to Ark. Stat. Ann. § 34-1503'(Repl. 1962). Upon appellants’ continued failure to remove the equipment, the appellee then sued for immediate possession, $900 in damages for the current loss of use of her building, $200 for each additional month of alleged misuse, and “any other damage which this plaintiff might sustain by reason of the unlawful detainer of these defendants, and for all other proper relief.” Before trial, appellants removed the equipment. Thus, the only issue at the trial was the question of damages. The court, sitting as a jury, found for appellee and assessed her damages in the amount of $400. The court credited, or allowed the appellants sixty days for “action” from the date of the levy of execution in September. Damages were then awarded for a period of four months, i.e., from November 1967 to March 1968, the month appellants removed the fixtures. Prom that judgment the appellants have apjoealed.
Por reversal appellants contend that an unlawful detainer action is based upon a contract and will not lie except where the relation of landlord and tenant exists between the parties, and further, that damages are not recoverable in an unlawful detainer action.
This court has consistently held that an action of unlawful detainer presupposes the relation of landlord and tenant, and such action will not' lie except where that relationship exists. Hilliard v. Yim, 207 Ark. 161, 179 S.W. 2d 456 (1944); Miller v. Plummer, 105 Ark. 630, 152 S.W. 288 (1912). However, damages for un lawful detainer can be recovered. Ark. Stat. Ann. § 34-1516 (Repl. 1962) permits a court or jury to assess damages in a forcible entry or an unlawful detainer suit.
The fact that appellee used the words “unlawful detainer” in her complaint is not controlling as to that type of action and we do not construe her pleading as being an unlawful detainer action. We have stated many times that courts must look to the substances of a pleading and it will be interpreted according to its substance rather than its form. Under our civil- code, pleadings are liberally construed and every reasonable intendment is indulged favorable to the pleader. Myers v. Majors, 242 Ark. 326, 413 S.W. 2d 661; Stroud v. M. M. Barksdale Lbr. Co., 229 Ark. 111, 313 S.W. 2d 376; Craft v. Armstrong, 200 Ark. 681, 141 S.W. 2d 39. Consequently, appellee’s complaint could properly be considered by the trial court as merely a suit for damages.
Appellants further assert that: “A judgment creditor upon the levy of the goods of his debtor acquires no interest in said goods.” It is argued that an officer who levies execution on personal property is not only held to be entitled to possession thereof as against the judgment debtor, but is generally presumed to be rightfully in possession of the goods taken in execution, citing 30 Am. Jur. 2d § 267. Therefore, it is contended that since a judgment creditor does not acquire the ownership of goods upon a mere levy of execution, without doing more, then if anyone is responsible for the loss of use of appellee’s building, it is the sheriff. We think appellants’ argument is without merit in the case at bar since their actions involved more than the mere levy of an execution.
To support their contention that the execution officer is the party responsible for damages, appellants cite Frizzell v. Duffer, 58 Ark. 612, 24 S.W. 1111 (1894). There plaintiff had rented his house with the under standing that the tenant agreed to vacate upon one day’s notice. A deputy constable, under a writ of attachment issued against the tenant, levied upon certain chattels situated in the house. The deputy obtained the keys by an agreement with the tenant and retained possession for some weeks after he had received notice to surrender the house to plaintiff. We said that the holding of the house after receiving notice to vacate was a trespass and that the constable, being responsible for his deputy’s misconduct, was liable for damages to the owner of the house in an amount which would equal the fair rental value of the house “during the time of the unlawful detention.” We think the reasoning in this case can fairly be applied to the case at bar. An execution creditor has large control in the management of the levy of an execution and the levying official is, sometimes, regarded as an agent. 30 Am. Jur. 2d § 223.
In the instant case it appears that the levying official was at all times acting at the direction of appellants. The appellants had the execution issued and levied; the sheriff served it on the judgment debtor and then proceeded to post a copy on the front door of appellee’s building as instructed by appellants. Subsequently, there were “calls” received by the levying official about “selling” the fixtures and “a call about rental property.” These calls were referred to appellants. According to this official, he looked to appellants for his instructions before taking any action. About four months after the idle lew upon the fixtures, it was discovered that the papers had not been filed in the circuit clerk’s office because the sheriff’s fee had inadvertentlv not been paid. This was corrected immediately.
Appellee testified that she felt she could not touch or remove the property in her building since a copy of the execution papers, itemizing the fixtures levied upon, was posted on the front door. Therefore, she could not rent her building and rental was “turned down twice because of it. ’ ’ There was evidence that appellee made demands upon appellants for payment of rent and removal of the equipment from her building. She was told that the fixtures would be removed several months before the actual removal by appellants. One explanation was that they had “no place to move it.” Appellee rented her building for $500 per month when the appellants moved the equipment in March.
There being substantial evidence to support the trial court’s action, as a trier of the facts, the judgment is affirmed.
Fogleman, J., dissents.
John A. Fogleman, Justice.
I disagree with that part of the majority opinion dealing with appellants’ liability for the action of the levying officer’s acts. Certainly it is beyond dispute that an execution creditor acquires no interest in the property upon which the execution is levied. The basis of the action of the majority on this facet of the case is not clear to me, but it seems to rest in part upon a suggestion that the levying officer was the agent of the execution creditor. I do not feel that such a holding is justified. I do feel that this results in a dangerous and unwarranted precedent. The evidence upon which this holding is premised is the deputy sheriff’s testimony that appellants’ attorney directed him to post the notice of levy upon the front door of appellee’s building, appellee’s statement that she told appellants’ attorney to “do something about it,” that he promised to do something several months before any action was taken, that appellants failed to remove the property levied upon from her building, that appellants failed to remove the property after she caused a “3-day notice to quit” to be served upon appellants, one of appellants was admitted to the premises by appellee when he came out and wanted to take inventory of the property upon which the levy had been made, and the first levy was not returned by the sheriff to the clerk because tlie sheriff’s fee had not been paid. These circumstances combined are insufficient to evidence an agency, in my opinion.
There is no evidence that appellants or their attorney took any action to control the manner of the levy of the execution or the disposition of the property after the levy. There was nothing in the notice of levy posted upon appellee’s building that purported to do anything other than to give notice that the particular personal property had been levied upon and was in the custody of the sheriff. Until the sale the property was in the custody of the sheriff and it was his obligation and duty to take care of it. 30 Am. Jur. 2d 601, Executions, § 266. The execution creditor had no right to its possession. 30 Am. Jur. 2d 602, Executions, § 267. The most that can be said is that the execution creditor knew that the property was in appellee’s building and failed to instruct the sheriff to remove it. I cannot see how liability of an execution creditor can be premised on this.
I would reverse the judgment and dismiss the case. | [
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Darrell Hickman, Justice.
The question is a procedural one: Whether the trial court erred in finding that an affirmative defense had not been pleaded. Government Employees Insurance Company brings this appeal from the trial court’s decision denying Government Employees from defending a claim by a homeowner for fire damage by presenting evidence of arson — that one of the Akerses caused the house to be burned. The trial court found that the appellant had not pleaded arson or willful burning of the residence by the homeowners, Verlin Akers and his wife, the appellees, as an affirmative defense. On appeal we cannot say the trial court abused its discretion and that is actually the question to be answered. It was conceded that Government Employees had an insurance policy in effect on the dwelling; that the house did, in fact, burn, and that there was a loss of a specified sum of money. When the appellees filed their lawsuit against Government Employees on the basis of the policy, Government Employees filed a general denial. After several pleadings were filed, Government Employees filed an amendment to its answer stating that the loss alleged by the plaintiffs was not “within the coverage, terms, and conditions of the policy of insurance.” The appellees filed a motion to require the appellant to make a more definite and certain answer, and the court ordered the appellant to do so within fifteen days. The appellant responded stating that:
... [T]he loss suffered by the Plaintiffs was not covered under this policy. The policy explains in detail the perils insured against and the exceptions thereto. The loss sustained by the Plaintiffs was not such a loss as insured by the Defendant.
So the appellant never affirmatively pleaded arson — or set out the policy provision it was relying on. But the appellant argues this is only technically true, that the trial court could have decided otherwise and indeed changed its mind just before trial.
The case was set for trial in March of 1981, and before trial the appellees filed a motion in limine to prevent Government Employees from using the defense of arson since it had not been specifically pleaded even though there was no written order. The court apparently refusd to grant the motion. The case was continued and j ust before it was to be tried in November of 1981, the appellees filed the same motion in limine. Upon reconsideration, the court decided that Government Employees had not specifically pleaded the defense of arson or any specific provision of the policy that would preclude recovery and granted the motion.
On appeal Government Employees is represented by another attorney and it is argued that the appellees were not surprised since the motion in limine mentioned arson, and therefore, there was no justifiable basis for the trial court’s decision. But, as the court pointed out, there are rules of procedure and the appellant did not plead an affirmative defense as it should have. It is argued that the motion in limine placed in issue the question of arson and a liberal construction of the Rules of Civil Procedure should have allowed Government Employees to proceed with its defense. There is no doubt that arson was mentioned in these pleadings but a party is entitled to know precisely what affirmative defense will be relied upon and none was pleaded in this case.
The answer filed by Government Employees in this case put no specific provision of the policy in issue. A general denial by an insurance company defending a policy merely puts the plaintiff to his proof. An affirmative defense such as an exception in the policy must be specifically pleaded. Universal Life Insurance Company v. Howlett, 240 Ark. 458, 400 S. W.2d 294 (1966). It is true the trial judge did change his mind but ultimately made the right decision. And the fact that he changed his mind is not necessarily reversible error. Nance v. Flaugh, 221 Ark. 352, 253 S.W.2d 207 (1952). It was purely a discretionary decision by the trial court which we cannot find manifestly wrong.
Affirmed.
Hays, J., dissents. | [
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Per Curiam.
The appellant has filed a motion for a rule to require the Clerk to file a record that was tendered too late. The judgment of conviction was entered on March 8, 1982. Proceedings on a motion for new trial were not terminated until the motion was denied on September 1. The trial court, at the request of counsel, entered orders purporting to extend the time for filing the record to March 31,1983, when it was tendered.
Under Appellate Procedure Rule 5 (b) and its predecessor, Act 555 of 1953, § 20, the trial court cannot extend the time for filing the record to a date more than 7 months after the entry of the judgment, although this court may do so for compelling reasons, such as unavoidable casualty. Pierce v. Pierce, 238 Ark. 46, 377 S.W.2d 868 (1964); Stebbins & Roberts v. Rogers, 223 Ark. 809, 268 S.W.2d 871 (1954); West v. Smith, 224 Ark. 651, 278 S.W.2d 126 (1955). Here counsel made the mistake of obtaining extensions of time in the trial court, past the 7-month deadline, instead of filing a partial record and seeking an extension in this court.
It has been suggested that the 7-month limitation was superseded or extended by Act 123 of 1963 and its successor, Appellate Procedural Rule 4, which provide for extensions of time in connection with post-judgment motions, such as a motion for new trial. The extension, however, is only for the filing of the notice of appeal, not for lodging the record in the appellate court.
Unlike our Appellate Procedural Rule 4, Federal Appellate Procedural Rule 4 provides in its second paragraph that the running of the time for filing a notice of appeal is terminated as to all parties by a timely post-judgment motion and that “the full time for appeal . . . commences to run and is to be computed from the entry” of the order granting or denying the post-judgment motion. Our Civil Procedure Revision Committee, which drafted our present procedural rules, expressly rejected the plan embodied in the federal rule, stating in its Reporter’s Note to our Appellate Procedural Rule 4:
2. Section (b) does not follow the second paragraph of Rule 4 of the Federal Rules of Appellate Procedure. It was believed that the federal rule permits excessive delay with respect to post-judgment motions that might be filed but not acted upon promptly. Consequently, Sections (b), (c) and (d) preserve the procedure that was prescribed by Act 123 of 1963.
It cannot be doubted that the federal rule does permit excessive delay, because the full time for the appellate process begins to run anew upon the filing of a post-judgment motion, and several such motions might be filed successively. The opportunities for intentional delay are innumerable. By contrast, our Rule 4 provides a simple and readily understandable procedure, by which the trial court cannot extend the time for filing the record beyond seven months after the entry of the judgment. During the 20 years our procedure has been in force this is apparently the first instance in which post-judgment proceedings have consumed most of the seven months. Even so, counsel had a simple remedy in this court.
In accordance with our per curiam order of February 5, 1979,265 Ark. 964, the motion for a rule on the Clerk will be granted only if counsel assumes full responsibility for the error or shows other good cause for the delay. j
For the present, the motion is denied.
Adkisson, C.J., concurs.
Purtle, J., dissents. | [
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James H. Pilkinton, Judge.
This is a.workers’ compensation case. James Davis died in a traffic accident on June 15, 1978. He left appellee as his widow, and two minor children. The Workers’ Compensation Commission allowed a claim for death benefits under the Arkansas Compensation Act. Appellant has appealed.
It is well settled that the burden is on the appellee claimant to establish the claim for compensation by a preponderance of the evidence before the Commission. Crouch Funeral Home, Inc. v. Crouch, 262 Ark. 417, 557 S.W. 2d 392 (1977). It is also well settled that this court on appeal reviews the evidence, and all reasonable inferences deducible therefrom, in the light most favorable to the findings of the Commission which, like those of ajury, will be upheld if there is any substantial evidence to support the action of the Commission. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977).
Viewed in the light most favorable to the findings of the Commission, the record discloses the following facts. James Davis was employed by appellant on June 15, 1978, and was working at a slaughter house in Arkadelphia, Arkansas. This business was known locally as the Reeder Meat Company as it was previously owned by the Reeder family but was purchased by Glen Hawthorne in January of 1978. Mr. Glen Hawthorne also had a meat plant at Hot Springs, and continued to reside in Hot Springs. His son, Howard Hawthorne, who was working for Union Carbide at Hot Springs when his father purchased the plant at Arkadelphia, went to work at the Arkadelphia business. While his father at times directed things over the phone from Hot Springs, Howard Hawthorne represented his father at the Arkadelphia plant and acted for him there. On June 15, 1978, James Davis was working at the slaughter house in Arkadelphia, under the supervision of Howard Hawthorne, and they finished the day’s work at the business shortly before noon. Howard Hawthorne asked James Davis to drive him to a livestock auction barn in Glenwood, Arkansas. Hawthorne said he needed to look at some cattle to buy for the slaughter house. Glenwood is located approximately 35 miles northwest of Arkadelphia. James Davis owned a motorcycle and used it to go to work each day. Howard Hawthorne rode on the back of the motorcycle behind Davis from Arkadelphia to Glenwood. Upon arriving in Glenwood, James Davis drove directly to the livestock barn where the regular Thursday sale was in progress. Howard Hawthorne dismounted from the motorcycle and went into the auction barn. Davis drove his vehicle back onto the highway and was in the process of returning to Arkadelphia when his cycle collided with a log truck which turned left in front of him. Davis was killed on impact.
One of the witnesses, Bobby Sanders, testified that he is a practicing attorney in Arkadelphia and also the Municipal Judge; that on June 16, 1978, Gloria Davis (wife of the deceased) was in his office and Howard Hawthorne was called in to discuss the accident. At that time Mr. Sanders was making an investigation for a possible wrongful death action. Mr. Sanders testified as follows with reference to a statement that Howard Hawthorne made to him the day after the accident:
Q. Did he advise you as to what happened that particular day of June 15th, as to why he and James Davis went to Glenwood?
A. Yes. As I recall he was very desirous of helping the Davis family, he was upset about the occurrence of the day before, he was trying to tell me everything that he knew about what occurred because I was investigating it for obvious legal purposes at the time.
Q. Would you relate as he related to you on that date what caused he and James to leave Arkadelphia and go up there?
A. Well, I asked him had they been working that day out at the slaughterhouse and he told me, as I recall, that he and James Davis had been there by themselves that afternoon and that the work was somewhat slow that afternoon and he made the decision, Howard Hawthorne made the decision to close down early, he said, why don’t we just take off because I needed to go to Glenwood to look at some cattle at the sale barn. I asked him who was in charge of the plant that day or the slaughterhouse and he said he was. I remember asking him, was he James’ supervisor and he said, well, yes, he worked for me, is the words he said.
Clarence Davis and Shirley Hawthorne were present when the above statement was made; and, Gloria Davis was there a part of the time.
Although there was testimony to the contrary, the Commission found that Howard Hawthorne was the supervisor of the employee Davis and the trip of June 15, 1978, was in part for Howard Hawthorne to look at cattle at the sale barn in Glenwood for his father’s business. The Commission said:
Death has sealed the lips of James Davis and he cannot be heard on behalf of his widow and children. Respondent admits he was subject to the workers’ compensation laws of Arkansas and with knowledge had not obtained coverage until after the death of James Davis.
With nothing more, the weight of the testimony might necessarily favor the respondent; but the testimony of the only completely disinterested witness, Judge Bobby Sanders, cannot be explained; nor, is there any reason for the impeachment of the integrity of his testimony. Clarence Davis corroborated Bobby Sanders’ testimony and Gloria Davis candidly admitted she did not hear Howard’s statement to Bobby Sanders. It is incredible that neither Howard Hawthorne nor Shirley Hawthorne remembers Howard’s statement to Bobby Sanders.
I.
Appellant first argues that the Commission erred in finding,that decedent’s death arose out of and in the course of his employment, such finding not being supported by any substantial evidence. In support of this point, appellant says the authority of an agent cannot be shown by his own declarations in the absence of the party to be affected by them, citing Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S.W. 2d 188 (1964). That was not a workers’ compensation case. Further, it is a well established rule of law as to principal and agent that the nature and extent of an agent’s authority, where the evidence is in conflict, is a question for the fact finders. Bradley Advertising, Inc. v. Froug Stores, Inc., 193 Ark. 639, 101 S.W. 2d 789 (1937). The Commission found that the testimony of Gloria Davis and Clarence Davis supported the testimony of Bobby Sanders, and tended to show that Howard Hawthorne was in fact the deceased’s supervisor.
Section 27 of the Arkansas Workers’ Compensation Act, Ark. Stat. Ann. § 81-1327(a) (Repl. 1976), provides:
PROCEDURE BEFORE THE COMMISSION, (a) In making an investigation or inquiry, or conducting a hearing, the Commission shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this Act, but may make such investigations or inquiry, or conduct the hearing in a manner as will best ascertain the rights of the parties ...
100 C.J.S., Workmen’s Compensation, § 535 at page 535:
In a proceeding where compensation is sought for the death or disability of an employee, the testimony of the employer, or a person authorized to act for the employer, is generally admissible as to matters which are within the knowledge of the witness, such as the nature and scope of the employee’s employment; and where the technical rules as to the admissibility of evidence are relaxed, a statement signed by the employer may be admitted in evidence . . .
In a compensation proceeding evidence is admissible as to statements made by an employer or his representative where the statement constitutes a declaration or admission against the employer’s interest; and an admission by an employer that workmen were injured in an accident arising out of and in the course of their employment may be admissible in evidence although the claim for compensation is being contested by the employer’s insurance carrier.
We find no merit in the first point argued by the appellant.
II.
Appellant also argues that the Commission erred in finding that the widow of decedent is entitled to benefits. Appellant says there is no proof of dependency in the record as required by law. He cites Ark. Stat. Ann. § 81-1315(c) (Repl. 1976) and points out that in order for a widow to recover benefits under the act she must make some proof of dependency upon the deceased employee. That is true. However, in this case the parties stipulated below that the only fact issue to be presented was simply whether or not the circumstances surrounding the accident and death of Mr. James Davis arose out of and in the course of his employment within the meaning of the workers’ compensation laws of the State of Arkansas. The record clearly shows that all other fact questions, which might have been disputed, were stipulated and agreed to by both sides. Apart from such agreement, appellant did not raise this question below, and cannot raise it for the first time on appeal. Jeffery Stone Co. v. Raulston, 242 Ark. 13, at 17, 412 S.W. 2d 275 (1967).
III.
Appellant also argues that the Commission erred in basing its decision in favor of claimant solely on the hearsay testimony of Bobby Sanders. Thus the appellant finally zeros in on what could have been the most crucial issue in this case: Will hearsay evidence alone sustain an award under the Arkansas Workers’ Compensation Act? See 3 Larson, Workmen’s Compensation Law, §§ 79.00 — 79.42 (1952), and Davis, Administrative Law, § 14.10 at pp. 291-303 (1958). The residuum rule, discussed by Larson and Davis, requires a reviewing court to set aside an administrative finding based upon hearsay evidence unless the finding is also supported by other evidence which would be admissible in a jury trial. The residuum rule has been the subject of great controversy. Although the residuum rule actually originated in a workmen’s compensation case decided in New York in 1916, Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507 (1916), there has been no discussion of it in Arkansas workers’ compensation appeals. See Ark. Stat. Ann. § 81-1327(a) (Repl. 1976) as to declarations of deceased employee concerning injury. Also § 81-1325(b)(4) which makes “insufficient competent evidence’’ a ground for reversal. But also see Garrison Furniture Co. v. Butler, 206 Ark. 702, 177 S.W. 2d 738 (1944), Comer v. Pierce, 227 Ark. 926, 302 S.W. 2d 547 (1957), Holstein v. Quality Excelsior Coal Co., 230 Ark. 758, 324 S.W. 2d 529 (1959), Covington, Judicial Review of the Awards of the Arkansas Workmen’s Compensation Commission, 2 Ark. L. Rev. 139 (1948), and Youngdahl, Rules of Evidence in Administrative Proceedings, 15 Ark. L. Rev. 138 (1960).
Although this point gives rise to a most interesting question, we do not reach it because appellant made no objection to the hearsay evidence of Bobby Sanders and Clarence Davis when it was presented below. An objection should have been made at the time the hearsay was offered before the Commission. Clark v. Peabody Testing Service, 265 Ark. 489, at 506, 579 S.W. 2d 360 (1979). This issue cannot be raised for the first time on appeal. In dealing with a similar situation in Jeffery Stone Co. v. Raulston, supra, the Arkansas Supreme Court said:
. . . the issue was not raised before the Commission and, under our well established procedural practice, it cannot be raised here. [242 Ark. at p. 17]
As the findings of the Commission are supported by substantial evidence, the judgment of the Commission must be affirmed.
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Holt, J.
This case comes here on appeal from the action of the chancellor of the Garland chancery court in overruling the demurrer of appellant (plaintiff below) to the answer and cross-complaint of appellee (defendant below) and the dismissal of the appellant’s complaint.
The record reflects that on February 5, 1938, appellant filed a complaint alleging that on the 25th day of January, 1938, an order was entered by the Garland probate court whereby the defendant, Dr. L. A. Hill, now deceased, was directed to collect rents on certain property in Hot Springs, as trustee in succession under the will of Thomas Benjamin Hill. That under an order made and entered of record on the 22d day of May, 1934, by the Garland probate court, three commissioners were appointed to lay off and set apart in fee simple to Mabel Hill, widow of Thomas Benjamin Hill, as dower interest in the real property of her deceased husband, a one-third interest of his real property of which he died seized and possessed, which-one-third interest so set aside to her in fee simple as her dower interest is described as lots 111 and 113, Fox street, and.lot 319, Linden street, in the city of Hot Springs, Arkansas.
It is further alleged in the complaint that Mabel Hill married appellant herein, Frank 0. Gardner, and following this marriage on February 14, 1935, she executed a warranty deed to one Tate, a single man, conveying this real property, and on the same day Tate executed a warranty deed to Mabel Gardner and Frank 0. Gardner, appellant, conveying the same property to them as ten ants by the entirety, and. that Mabel Gardner having died, title in fee vested in appellant, and that he is now entitled to the possession of said property free from the interference of appellee or anyone else.
The complaint further alleg’es that appellee claims to be acting under an order of the probate court entered of record April 2, 1935, which is an order attempting to set aside order of May 22,1934, aforesaid; that said order of April 2, 1935, is void, that appellant was not made a party or served with notice. Then follows appellant’s prayer that appellee be restrained and enjoined from interfering with his possession and rights with reference to said property,, that the order of April 2, 1935', be canceled and title to said lots declared to be vested in Frank 0. Gardner, appellant, in fee simple. Exhibit “A” to appellant’s complaint sets out the probate order made on May 22, 1934, which was an order amending and correcting the first order previously made by the court on the 24th day of April, 1934, recorded in book “0,” p. 18, the said first order of April 24, 1934, having awarded Mabel Gardner (at that time Mabel Hill) a one-third interest in the real property above described, for her life, and the said order of May 22,1934, amended said first order so as to award Mabel Hill fee simple title to the said property. Exhibit “B” is the warranty deed executed by Mabel Gardner on the 14th day of February, 1935, to Tate, above referred to. Exhibit “0” is the warranty deed executed on February 14, 1935, by Tate to Mabel Josephine Gardner and Frank 0. Gardner, appellant, husband and wife.
Exhibit “D” to said complaint is an order made by the Garland probate court on April 2, 1935, and is as follows : “In the Matter of the Estate of Benjamin Hill, Deceased. Order. On this day comes Mabel Hill Gardner, wife of Thomas Benjamin Hill, deceased, by her attorney, C. T. Cotham, and comes Thomas Dean Hill, the sole heir at law of the said Thomas Benjamin Hill, deceased, by his attorney, W. G. Bouic, and by consent of the court, and of the parties hereto, the petition to amend and correct order allotting widow dower on report of commissioners, is withdrawn, and the order allotting said widow dower in one-third of certain real estate made and entered on the 22d clay of May, 1934, is amended and corrected by striking out the word ‘ one-third ’ the real estate allotted to said- widow by the terms of said order being in fact one-third of the real estate of which the said Thomas Benjamin Hill died seized and possessed to said widow for and during her natural life only. ’ ’
To this complaint appellee, on the 8th day of February, 1938, filed answer and cross-complaint, alleging that Thomas Benjamin Hill died testate in 1932 leaving surviving one child, Thomas Dean Hill, and a widow, Mabel Hill (Gardner); that the widow renounced the will and elected to take her dower; that commissioners were duly appointed, who, on January 1, 1934, filed their report with the court setting aside her said dower interest; that'on April 24, 1934, the report of said commissioners assigning one-third interest in the real estate of the deceased, Thomas Benjamin Hill, to Mabel Hill (Gardner) for and during her natural life was approved and entered of record in Book “O,” p. 18, said petition and order having been filed by the attorney for the executor upon notice served upon -appellee herein as guárdian of Thomas Dean Hill, a minor and sole heir at law of Thomas Benjamin Hill, deceased.
The answer further alleges that on May 22, 1934, petition to amend and correct the order filed in the name of the executor on April 24, 1934, was filed by the widow without notice to any party in interest and was by the court granted. Further answering, appellee admits that the records, of the Garland probate court reflect that on May 22, 1934, petition was filed by the said widow in her name seeking to change certain wording in the Order made in the Garland probate court on the 24th day of April, 1934, recorded in book “0,” p. 18, without notice .to the parties of interest in the estate; that on March 8, 1935, the disabilities of minority of Thomas Dean Hill were removed by the Garland chancery court.
It is further alleged in the answer that as sole heir at law of the late Thomas Benjamin Hill, his father, he did in April, 1935, after the removal of his disabilities, through his attorney, direct the probate court’s attention to the void order allotting dower on May 22,1934, and caused notice to be served, and in open court ask permission of tbe court to withdraw said petition and allot dower to the Said widow for and during her natural life, which said permission was granted by the court and appears set out in full above as exhibit “D ” to the complaint of appellant. Appellee further in his answer denies that the plaintiff, Frank 0. Gardner, appellant herein, has any interest in the property described in his complaint, but alleges that any interest which he may have had terminated at the death of his wife, Mabel Hill (Gardner), and the fee title was vested in Thomas Dean Hill, the ward of this defendant, appellee herein.
Appellee in his cross-complaint alleges that the deeds referred to in complaint of appellant are a cloud on the fee title of Thomas Dean Hill and should be canceled and set aside and a general prayer for all further and proper relief.
To this answer and cross-complaint appellant (plaintiff below) filed a demurrer, which was overruled, and plaintiff declining to plead further, his complaint was dismissed.
From this record it appears that Thomas Benjamin Hill died testate leaving a widow, Mabel Hill, and as his sole heir a minor son, Thomas Dean Hill, by a former wife. His widow, Mabel Hill, shortly after the death of Thomas Benjamin Hill, married appellant, Frank O. Gardner. The property involved is the real estate which the deceased, Mabel Hill (Gardner), was allotted during her lifetime as dower in the estate of Thomas Benjamin Hill, deceased. No children were born to the deceased, Thomas Benjamin Hill, and Mabel Hill, his second wife, Thomas Dean Hill being his child by a former marriage. This litigation arose- out of the effort of Mabel Hill to convert her dower estate from a life estate to an estate in fee. On April 24, 1934, the Garland probate court, after Mabel Hill had renounced the will of her husband and had elected to take her dower, set aside to her a life estate in the property above referred to. Subsequently on May 22, 1934, without notice to the appellee herein (defendant below), she secured an amended order from the Garland probate court setting aside to her the prop erty in question herein in fee simple. • This, according to the record, was an ex parte proceeding. Subsequently after Thomas Dean Hill had had his disabilities removed and learning of the order of May 22,1934, upon due notice to appellant herein and by agreement of Mabel Hill (Gardner) and all parties in interest herein, did on April 2, 1935, secure another order from the Garland probate court which in effect set aside the order of May 22, 1934, and restored the first order made by said court on April 24, 1934. This order of April 2, 1935, is copied in full above and need not be repeated here.
On this state of the record we hold that the order of May 22, 1934, was erroneously made by the Garland probate court and that the order of April 2,1935, made when all parties were present and to which all interested parties, including Mabel Hill (Gardner), agreed, is binding and controlling. As to the warranty deed executed on February 14, 1935, by Mabel Hill (Gardner) to one Tate, she could convey no better title than she possessed, which this record shows to be but a life estate in the property in question. At her death her interest in said property terminated and the fee simple title to this property being in Thomas Dean Hill, the son and only heir of Thomas Benjamin Hill, his right to possession arose.
Appellant by its demurrer to the answer and cross-complaint of appellee admits all allegations set up therein by appellee (defendant below) to be true. As will be observed from appellee’s answer, it was definitely set out therein that Thomas Benjamin Hill died leaving surviving him one child, Thomas Dean Hill, and a widow, Mabel Hill.
We, therefore, conclude that the decision of the chancellor should not be disturbed, and, no errors appearing, the judgment is affirmed. | [
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GrieeiN Smith, C. J.
The question is, Did the grantee in a deed and the parties who executed and delivered it, such deed being’ absolute in form, intend that it should be a mortgage?
Although numerous litigants appear in the record, some as cross-appellants and some as cross-appellees, it is not necessary, in the view we take of the case, to refer to all of them, or to review their contentions. The principals are W. A. Burps and JVM. Fielder.
Fielder married Burns’ daughter, Eva, and the couple had for a long time resided on the rural- property owned by Fielder, which he either inherited or acquired by will from his mother. Burns, a fairly well-to-do farm: er, lived four or five miles distant.
, . A reasonable conclusion to be drawn from all the evidence is- that Fielder, either because of poor health or inability — or both — was not-a. good manager. He was unable to meet some of his obligations, and had received financial accommodations from- his father-in-law. He owed $400 to National Bank of Commerce, El Dorado, and early in 1930 the bank was pressing for payment.
Burns interceded for Fielder, but without avail. Thereupon, they applied to First National Bank of El Dorado for a loan, which was granted.
February 1, 1930, Fielder and his wife borrowed $700, evidenced bv notes for $300 and $400. To the $300 note was added interest of $24, while $32 in interest was added to the $400 note. The total indebtedness as reflected by these transactions' was $756. The $300 note was signed by Burns as co-maker. It was also secured by a mortgage on Fielder’s 60 acres of land. The mortgage secured any other indebtedness the makers might owe the bank. The $400 note, as expressed by Gr. M. Wade, cashier of the bank, “was secured by 4116 indorsement' and co-signature of W. A. Burns.”
There were a number of renewals of the notes. March 20, 1931, the $300 obligation, with interest, amounted to $330; and it was paid by Fielder. The $400 note, as renewed with interest, matured November 15, 1932, for $440.
Wade testified that he wrote Fielder to come in and pay the remaining note; that Fielder explained he had been sick, had not done any farming, and could not pay the interest.
Failing to obtain satisfaction from Fielder, Wade wrote to Burns, and the latter paid the note April 13, 1933. To secure funds with which to make the payment, Burns pledged 35 bales of cotton to the bank, and procured $615.21.
- Wade’s recollection was that several days prior to April 13 Burns and Fielder came to the bank and talked with him, “and the decision arrived'at was that Fielder was to make the deed to Mr. Burns. . . •. I had written Mr. Fielder to come and make some arrangements, and they came in and said Mr. Fielder wanted to make a deed — Mr. Burns told me they had come to that deci-sion. I think this was probably four or. five days before the [Burns] note was executed.”
Wade had offered to take -the land for the debt, but preferred to make a loan on Burns.’'cotton and have the obligation paid-. He was.positive nothing was said about-the deed from Fielder to Burns being.a mortgage: “I am sure it was a deed. There wasn’t any mention of a mortgage.”
At the trial 'Burns was unable to produce the $440 Fielder note, but in an affidavit attached to a petition to open the decree — a proceeding in the nature of a bill of review — 'Burns stated that the note had been discovered, and that the indorsement thereon was: “Paid by note of W. A. Burns, 4/13/33.” In connection with this same proceeding G-. M. Wade executed an affidavit saying he had seen the cancelled note, and that the “paid” indorsement was in the handwriting of an employee of the bank.
Mrs. Fielder was in the bank at the time her husband’s note was paid, but apparently took no part in the conversations. The deed from Fielder to Burns was prepared in the bank, and ivas signed 'by Mrs. Fielder.
In its decree the court cancelled the deed to Burns, but held that subsequent purchasers were protected. Judgment went against Burns for money he had re-, ceived from the sale of leases and minerals, less the amount found to be due Burns by Fielder. The chancellor apparently treated Burns’ payment of Fielder’s note as a loan to the latter. Burns did not surrender the mortgage. The deed was not filed of record until May, 1936.
Fielder contends that when the bank insisted upon payment of the $440 note, Burns came to him and suggested that he deed the property to the bank; that he demurred, explaining that if he forced foreclosure he would have a better opportunity to redeem; that Burns finally said that if he (Fielder) would make the deed to him (Burns), the opportunity to redeem would be better. “He also said he wanted the money, and any way we could raise the money I could redeem the land, and we agreed to make the deed under that condition, under those terms.”
On cross-examination Fielder stated that “Burns refused to give me the land back'in 1933”; that in 1933 when a man named Lagrone wanted to rent a part of the place he (Fielder) didn’t know whether he could rent it or not “because they might foreclose”; that he sent Lagrone to Burns and the land was rented; that it was his intention that proceeds of the rent should be applied by Burns on an existing indebtedness, although Burns denied this; that he had never asked Burns for the rent money; that he did not demand of Burns the money received from Bailey and Trimble for oil leases; that he did not undertake to sell leases and pay off the so-called mortgage “because it wasn’t worth anything" then”; that he intended to use his bonus money to pay the debt; that he offered to pledge his bonus bonds or certificate to Burns, but the latter would not accept them. This occurred after the land became valuable.
The witness admitted that, under his agreement with Burns, there was no obligation to redeem. The question, was asked: “If you didn’t want to you didn’t have to?” And the answer was, “'Yes, that is it.” Asked if he regarded his obligation to Burns of a nature sufficient to permit suit against him, Fielder replied, “No.”
Burns ’ testimony in many respects was in direct conflict with that of Fielder. Other points of interest in the evidence are:
Both Burns and Wade testified that Burns told Fielder he and his wife could continue to live on the pláce and have whatever they made on it. Value of the land as of April, 1933, was variously estimated at from $5 to $15 per acre. ' Wade testified that he had sold some land for $3.10 per acre. B. L. Lane testified that his attention was directed to á sign on the Fielder land which in substance was a notice to trespassers to keep out. The sign had been prepared for Burns at Fielders’ suggestion. In consequence of this.sign, Lane went to Burns and paid $400 for a lease. It was then ascertained that the Fielder-Burns deed had-not been recorded. Lane testified that when he mentioned this to Burns the latter appeared surprised. Together they went to the bank, and the bank sent an agent with them to the court house. The agent indorsed satisfaction of the Fielder mortgage. Burns says that Lane requested that he, too, indorse the record, showing satisfaction, and that he did so. The deed was then recorded. The record did not disclose an assignment of the mortgage to Burns.
-Thelease sold by Burns to Lane covered 40 acres of the Fielder lands. After Burns recorded the deed, Lane assigned his lease to O. C. Bailey and J. D. Trimble. Thereafter, Burns executed a deed conveying one-half of the mineral rights of the 40 acres covered by the lease, but subject to the lease, and assigning one-half of the royalties payable under the lease. He also executed a lease on two acres of the remaining* 20. Fielder, prior •to 1933, had conveyed all of the minerals on 18 acres;
March 31, 1937, after an oil field had been proved, Fielder executed an oil and gas lease on 42 acres of the land in favor of Shaw, Hodges, "Williams and Westbrook, .of Jefferson, Texas. On the same day he executed a power, of attorney, coupled with an interest, to Shaw. Acting under this power Shaw undertook to have the Fielder deed to the fee cancelled. June 3, 1937, Fielder and his wife executed a mineral deed to Westbrook, Hodges, and Williams, conveying one-half of the minerals on the 42-acre tract.
Aside from the'personal testimony, a circumstance in favor of appellees’ contention is that Burns*' did not have his deed recorded. Fielder testified that it was agreed this should not be. done. It is urged by appel-lees that Burns, in retaining Fielders’ note and the .mortgage, and later in ¡satisfying the mortgage of rec.ord, gave credence to what appellees contend is true, that is, Burns held the mortgage'as additional security; ■■.or, rather, he looked upon it as an assignment.
By his own admission, however, Fielder construes the transaction as one whereby he, within his own discretion, and at a time convenient to his purpose, could tender repayment to Burns and repossess the property; but Burns, on the other hand, could not sue him; - The most that can be said of the agreement, construed-most favorably in Fielder’s behalf, is that it was aisale coupled with an option to repurchase. .'
The evidence necessary to impeach the solemn recitations of the deed must be clear and convincing.' As was said in Bevens v. Brown, 196 Ark. 1177, 120 S. W. 2d 574, such evidence “must be so clear that reasonable minds will have no doubt that such - an agreement- was executed. It must be so convincing that serious argument cannot be urged against it by reasonable people.”
Tested in the light of this rule, we 'do not believe the purported agreement should have been accorded that high degree of verity which must attach to alleged verbal- reservations, or conditions in order to ■ overthrow' solemn recitals of a deed. Business transactions'must have finality. Conveyances must-mot be exposed to the caprice'of parol,'nor éxplained awáy by less than that quantum of evidence which essentially attains the dignity of clarity, impressing’ conviction.
In the instant case such evidence is lacking. There-, fore, the decree is. reversed in part, with directions that title to the land be--'quieted in Burns under the deed from Fielder, and that those taking interests conveyed by Burns be protected. It is further ordered that all instruments purporting to convey an interest in either the mineral or surface rights, or to the fee, executed by Fielder subsequent to April 13, 1933, as reflected by this record, be cancelled as clouds upon the title of Burns. | [
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Smith, J.
G-. M. Davis and Ms son, Clarence Davis, a man twenty-four years of age, were engaged in the joint enterprise of shipping and selling watermelons. On August 3, 193.7, they drove a truck load of melons, with Clarence at the wheel, through the town of McCrory, on their way to the city of Wynne. They were traveling on highway 64, a paved road, when they came to a crossing over the tracks of the appellant railroad company between the hours of 9 and 10 o’clock a. m. The highway makes a large S turn but crosses the track at nearly a right angle. Pictures of the crossing indicate that the track is about two feet above the land over which it runs. As the truck drove upon the crossing a fast passenger train of eight or ten coaches approached from the east, going towards McCrory. The train was running at a speed of 70 to 72 miles per hour. There was a strip of woods south of the track and about 600 feet east of the crossing which prevented the driver of the truck from seeing the train for more than 800 feet until the truck was within 100 feet of the crossing. At a point 50 feet from the crossing the truck driver had a clear view of the railroad track to the east for a distance of 2,500 feet. The track was straight. The woods which obstructed the view of the train also obstructed the view of the truck as it approached the crossing. A collision between the train and the truck occurred at the crossing, and both Davis and his son were seriously injured. They each sued for the sum of $3,000 and recovered judgments to compensate their injuries, from which is this appeal.
Davis and his son both testified that the speed of the truck was. reduced to from 5 to 10 miles per hoiir as they approached the crossing. They had seen a freight train switching in McCrory as they passed through that town. They saw smoke, which proved to have been in McCrory, and they were looking in that direction to see if a train was approaching from the west, the direction of McCrory. They did not see the train until it was upon them, and the rear end of their truck was struck by the train. The front wheels of the truck and the cab had crossed the track when the collision occurred. No signal was given by blowing the whistle or ringing the bell as the train approached, until just before the collision, when two short sharp blasts of the whistle were blown. In this statement plaintiffs were corroborated by the testimony of a boy who was a passenger on the train and a man who had stopped his car about a quarter of a mile from the crossing to put water in the radiator of his car. There was no reduction in the speed of the train until after the collision. The emergency brake was applied as the collision occurred, but the train ran, according to some of the witnesses, about seven or eight times the length, of the train before it stopped. The fireman gave the distance at 14 times the length of the train.
The engineer and fireman testified that after the application of the emergency brake the engine rocked with such violence that they feared the train would be derailed and wrecked, but it finally stopped, after one of the wheels of the engine had run off the rail, and that the engine almost turned over.
A Mr. T. A. Smith, who lived in Forrest City, testified that he was riding in his automobile with his'16-year old granddaughter a short distance behind the truck. Before he saw the train he heard it whistle for the crossing about a quarter of a mile from the crossing, and he also heard the bell ringing. As he approached the crossing he was about 15 feet behind the truck, and he stopped his car about 100 or 150' feet from the crossing, and he supposed the truck was also about to stop, as it slowed down to almost a snail’s pace, as the witness expressed it, but the truck drove on at a speed of about one or two miles per hour over the crossing. The young lady also testified that she heard the train whistle for the crossing, and heard the bell ringing, and in other respects corroborated the testimony of her grandfather. They were both very positive that the train first whistled for the crossing, and very soon thereafter again whistled, just as the collision was about to occur.
In view of this conflict in the testimony, we must assume that the jury found that no signals for the crossing were given by the train, and that the whistle was only blown just as the collision occurred, and that the railroad company was negligent in the operation of the train.
The engineer and fireman both testified that they were in their respective places, the engineer; on the right side of the cab and the fireman on the left. The engineer testified that on account of the size and length of the engine he did not see the truck until it was within about. 50 feet of the track. The truck approached the crossing from the south, or the fireman’s side, and the fireman testified that he saw the truck as soon as the engine passed the woods which obstructed his vision to the south. He was in a better position to discover the truck and per sons approaching the crossing than was the engineer. The fireman further testified that the truck was reducing its speed as it approached the crossing, and that he thought the truck would stop and had done so. When he saw that the truck was about to cross in front of the train there was nothing he could do except warn the engineer, and this he did by jumping from his seat to that of the engineer, who immediately blew two short blasts of the whistle and applied the emergency brake.
The testimony shows that both the engineer and the fireman were thoroughly familiar with this crossing, as were also Mr. Davis and his son.
We have, therefore, a case in which it appears that the jury found that there was negligence on the part of the railroad company in the failure to give warning of the approach of the train to the crossing; but it appears to be utterly unreasonable to say that this negligence was comparable to that of the plaintiffs, .or that the jury was warranted in finding that the plaintiff’s negligence was of less degree than that of the railroad company.
Contributory negligence is no longer an absolute defense in actions of this character. Under our Comparative Negligence statute (§ 11153, Pope’s Digest) there may be a recovery, notwithstanding the negligence of the person injured, if that negligence is of less degree than that of the operatives of the train.
We have held in numerous cases that it is the duty of the jury to weigh and compare the evidence and determine the relative degrees of negligence, and, that ordinarily, the finding of the jury is conclusive of the issue as to the degrees of negligence. But, as was said by Chief Justice McCulloch in the case of St. Louis-San Francisco Railway Co. v. Horn, 168 Ark. 191, 269 S. W. 576, cases may arise in which the question becomes one of the legal sufficiency of the testimony to support the finding made, and that this is a question of law for. the court.
These questions were thoroughly considered and discussed in the opinion by KeNYON, Circuit Judge, in the case of Bradley v. Missouri Pacific Railroad Co., 288 Fed. 484, which arose out of a collision between a train and an automobile in the city of Prescott, this state. The excess of the plaintiffs’ negligence over that of the railway company appears to ns to be much greater in this case than in that one. In that case, as in this, ‘ Evidence was introduced as to the negligence of the railroad company in failing to whistle or ring the bell and in running the train at a high rate of speed approaching this crossing.” After quoting our Comparative Negligence statute, Judge KeNtoN said: “. . . and (the statute) does not attempt to take from the court tlie right, where no. other inference can be drawn from the evidence by reasonable men, to decide as a question of law that the evidence of negligence on the part of decedent equaled or exceeded that of the railroad company.”
This was the view expressed by Judge McCulloch in the Horn Case, supra.
What Judge Kenyok said of the conduct of the party killed in that case is equally applicable here. He said: “The only reasonable inference that can be drawn from their conduct is that they did not look, or, if they did and saw the train, deliberately took the chance of beating it over the crossing. If the former, they were guilty of gross negligence — if the latter, gross recklessness. If parties driving automobiles persist in gambling with death at railroad crossings, their estates should not be augmented by damages if death wins. Care, not chance, is the requisite at railroad crossings.”
It is inconceivable that a heavy train, traveling 70 to 72 miles per hour, could have been proceeding noiselessly, even though the whistle was not sounded or the bell rung. The truck was being driven over a paved highway. The grade of the crossing was almost negligible, but the truck was being driven up, and not down, this grade, whatever it may have been, and no one places Davis’ speed at more than 10 miles per hour, and the witnesses who placed it that high said “From 5 to 10 miles per hour.” A mere glance to the east would have revealed the approach of the train in ample time to have stopped the truck, and the only excuse offered for not looking in that direction was that smoke was seen to the west, but the undisputed testimony is that this smoke was in MoCrory, three miles west of the crossing.
Under these circumstances, it is not merely to split hairs, it is to trifle with the testimony, to say that the jury was warranted in finding that the negligence of the plaintiffs was of less degree than that of the railroad company. In our opinion, the trial court should have told the jury, as a matter of law, that the negligence of the plaintiffs was not of less degree than that of the railroad company.
It is insisted, however, that, notwithstanding the degree of the plaintiffs’ negligence, they were entitled to recover under the doctrine of discovered peril, and that issue was submitted to the jury under an instruction numbered 5, to which many objections were made, reading as follows: “You are instructed if you find from a preponderance of the evidence in this case that as said train was approaching said crossing from the east traveling west the attention of the plaintiff was attracted to the west by smoke down the railroad track to the west so that the plaintiff thought that a train might be coming from the west towards said crossing and caused the plaintiff to look down th© railroad track to the west as he approached and passed over said crossing in said truck, and the said employees of the defendants in charge of running- and operating the engine of said train, saw and knew that the plaintiff was approaching and about to cross said tracks, and that he was in peril of being struck by the engine they were operating, if you find from a preponderance of the evidence the plaintiff was in such peril, and that the said employees in charge of the engine of said train failed to exercise ordinary care to avoid striking him after discovering his peril, if you find they did fail to do so, and that said conduct on the part of said employees in charge of the engine of said train, if you find they were guilty of such conduct, was the cause of the injuries to the plaintiff, then you should find for the plaintiff against the defendants.”
Upon this issue the court charged the jury in another instruction numbered 7, reading as follows: “You are instructed that the servants of the defendant engaged in the operation of the train had the right to assume that the plaintiffs in approaching the crossing, would act in response to the dictates of ordinary prudence and the instinct of self-preservation and would, in fact, stop before placing themselves in peril; and you are further instructed that the duty of the engineer and fireman to take precautions to avoid striking the plaintiffs arose only when they discovered, or should, by the exercise of reasonable care, have discovered the peril in which the plaintiffs were about to place themselves.”
Does the testimony warrant the submission of that issue to the jury, and is it sufficient to sustain the finding that there was negligence after the discovery of the peril ?
The undisputed testimony shows that a lookout was being kept by both the engineer and the fireman, and the presence of the truck was discovered as soon as the train had passed the timber. The fireman saw the truck approaching the crossing, but all the testimony is to the effect that the speed of the truck was being reduced, and the fireman had the right, as the court told the jury, to assume that the driver ‘ ‘would act in response to the dictates of ordinary prudence and the instinct of self-preservation and would, in fact, stop before placing themselves in peril,” and to rely upon that assumption until, in the exercise of reasonable care, he was aware, or should have been aware, that the truck would not stop. The very instant this discovery was made, and we think there was no testimony to support a finding that it could have been sooner made, the fireman jumped from his seat to warn the engineer, who had sole control of the movement of the train and was the only person who could do anything at all, and the engineer immediately did all that was possible. He first blew the ivarning whistle, ánd then applied the emergency brake, with such force that he came near wrecking the train and imperiling the lives and safety of the passengers on it.
A short but a perceptible interval of time was required for the fireman to warn the engineer, who first blew the whistle and then applied the air. The undis puted testimony was to the effect that “It would take at least a second, or more, probably a second and a half, for the air that escapes from the brake cylinders to permit the pistons to force the shoes against the wheels of the car; it would take possibly a second and a half, possibly two seconds, for you to notice it.” And during- that time the train was moving 102 feet each second.
The first witness called by the plaintiffs was the engineer, who testified that a train such as his, going 70 miles per hour, could be stopped in 2,500 feet; and that while traveling 500 feet he could slow his train from 70 miles to 50 miles per hour, and in 800' feet he could slow it down to 40 miles per hour, and in 1,000 feet he could slow it down to probably 25 or 30 miles per hour. There was an emergency stop in this case, and the engineer came near wrecking his train, and did derail a wheel of the engine. There is no reason to believe that he could have stopped the train quicker than he did, or that he could have reduced its speed sufficiently to enable the truck to cross the track in safety, after discovering its peril.
Under these circumstances, we think there was no testimony to support the finding that due care had not been used after the discovery of the peril, and in view of the physical fact established to an undisputed certainty that at a point 50 feet south of the crossing the plaintiffs, or either of them, could have seen the- train a distance of 2,500 feet, had they looked east, Ave feel constrained to hold that there is no liability in this case.
The judgments of the court below must, therefore, be reversed, unless we are to hold that railroads are insurers against the carelessness or recklessness of persons crossing railroad tracks, and as the cases appear to have been fully developed they will be dismissed.
Humphreys and Mehaeey, JJ., dissent. | [
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Conley Byrd, Justice.
Petitioner Jimmy W. Grimmett, a state policeman, while patrolling the highways and while on regular duty as an Arkansas State Trooper, made a left turn in front of one of Home Insurance Company’s insureds causing damages in the amount of $996.67. When Home Insurance Company brought suit to recover the $996.67, petitioner moved to dismiss the action on the basis that it constituted an action against the State of Arkansas which was prohibited by Art. 5 § 20 of the Constitution of Arkansas and that the jurisdiction of such claims was exclusively with the Arkansas Claims Commission. After the trial court overruled petitioner’s motion to dismiss, he filed his petition here for a writ of prohibition raising the same issues.
Article V § 20 upon which petitioner relies provides:
“The State of Arkansas shall never be made defendant in any of her courts.”
We pointed out in Kelly v. Wood, Circuit Judge, 265 Ark. 337, 578 S.W. 2d 566 (1979), that an automobile negligence action for personal injuries brought against a state trooper for a violation of duty imposed upon him by law in common with all other people using the highways does not amount to an action against the State within the prohibition of Arkansas Constitution Art. V § 20supra. The same principle has been recognized by most of the authorities. See Belknap v. Schild, 161 U.S. 10, 16 S. Ct. 443, 40 L. ed. 599 (1896), where it is stated:
“But the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in the time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of the United States.”
Petitioner readily recognizes our decision in Kelly v. Wood, Judge, supra, but points out that other states with a provision similar to Art. V § 20, supra, have upheld tort-claim acts such as the Arkansas Claims Commission Act, Ark. Stat. Ann. § 13-1401 et seq. (Repl. 1968), and have construed such acts as giving exclusive jurisdiction of all personal injury actions against state employees to such commissions or adjudicatory agencies. In making this contention, the petitioner fails to take into consideration other provisions of the Arkansas Constitution such as Art. 2 § 7 and Art. 2 § 13.
Article 2 § 7 provides:
“The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; ...”
Article 2 § 13 provides:
“Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and. without denial, promptly and without delay, conformably to the laws.”
In St. L., I.M. & S. Ry. v. Williams, 49 Ark. 492, 5 S.W. 883 (1887), based upon the foregoing constitutional provisions, we said:
“Every one is entitled, under the Constitution, to have his rights enforced, his wrongs redressed, and his liabilities determined in the courts, whenever it becomes necessary to compel their enforcement, redress or adjustment, and, when he is liable for damages, as the appellant is in this case, to have the damages he shall pay assessed by a jury. The Legislature has no power to substitute boards of arbitration for the courts, without the consent of parties, and make their awards obligatory and the exercise of the right to seek the aid of the courts to obtain relief from a wrong, or impose upon any one a penalty for exercising such right. To make the action of such a board obligatory or impose such a penalty would be a denial of the right, or a purchase of justice, and a violation of the Constitution.”
The foregoing construction given to Art. 2 § 7 and Art. 2 § 13 made it necessary for the people of this State to amend the Constitution [Amendment #26] before a valid Workmen’s Compensation law could be enacted. Such provisions would also prevent the General Assembly from giving the Claims Commission exclusive jurisdiction of tort claims against state employees or officers for their unlawful acts.
Writ denied.
Harris ,. C. J., not participating.
Fogleman and Hickman, JJ., dissent. | [
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Smith, J.
Appellee, holding a disability insurance policy in appellant company, sued appellant, the insurer, for a breach of that contract, upon the theory that the company had repudiated it by failure to perform its conditions, by paying disability benefits. The judgment recovered by appellee in that case was reversed. United Fidelity Life Ins. Co. v. Dempsey, 193 Ark. 204, 98 S. W. 2d 943. We there held that appellee was entitled to recover disability benefits, but that the assertion, in good faith made by the insurer, that appellee was not in fact totally disabled, did not constitute a breach of the contract and a repudiation thereof. In other words, if the insurer had concluded, upon investigation and in good faith, that the insured was not in fact totally and permanently disabled, it had the right to assert that fact, without being held to have repudiated the contract. The same question is presented on this appeal as was involved in' and decided upon the former appeal, and the rule there announced is decisive of the present appeal, it being from a judgment based upon the jury’s finding that appellant had breached and repudiated the contract.
Without reciting the testimony in detail, it may be said here, as was said in the former opinion, that the testimony is sufficient to support the finding that appellee is disabled within the meaning of the provisions of his insurance policy, and is, therefore, entitled to recover the monthly benefits provided for in the policy; but it does not follow, on that account, that he is entitled to the present value of such payments as would accrue during the remainder of his expectancy, as was decided by the verdict and judgment from which is this appeal. If he recovers from his disability, his right to receive benefits would cease. On the other hand, if the insurer arbitrarily or fraudulently took the position that appellee was no longer disabled, this would be a breach of the contract of insurance. In such case the insurer would have no right to require the insured to expend his benefits in repeated suits to collect them, so that the question presented here, as was the case on the former appeal, is whether the insurer had acted arbitrarily or fraudulently in refusing to continue disability payments after the fact Fad been established that be was disabled within the meaning of the policy. In this connection, it may be said that total disability having’- been established, there was a presumption that this condition continued; but this is a presumption of fact, and not of law, and may be rebutted and be shown not to be true. Equitable Life Assurance Society v. Bagley, 192 Ark. 749, 94 S. W. 2d 722.
Here, the undisputed testimony is to the effect that the insurer had received information, from sources apparently reliable, to the effect that appellee was no longer totally disabled, and an investigation of these reports appeared to confirm their truth.
These circumstances were to the following effect: Appellee is the son-in-law of "W. E. Jumper, a traveling-shoe salesman who owns a large shoe store in the city of Conway. There appeared in the December 31, 1936, issue of a local newspaper the following news item:
“Conway Shoe Store
“Sold by M’Alister
“ J. P. McAlister announced today that W. E. Jumper has completed negotiations for the purchase of the Conway Shoe Store, owned by Mr. McAlister, and that he plans to remove with his family to Harrison, his former home, where he will be associated in the shoe business with Dave Heuer, his brother-in-law.
“The Conway Shoe Store which has enjoyed a'fine business under Mr. McAlister’s management,-will be operated by Mr. Jumper’s son-in-la.w, Jesse Dempsey, and his daughter, Miss Ruth Jumper, it was announced.
“The consideration was said to have been $12,500.
“G-eorge Carter will remain with the store as salesman and George Schrekenhoeffer has returned to manage the repair department.”
Subsequent to this notice and after January 1, 1937, appellee became connected with the shoe store and spent much time there. It ivas shown that he played golf, and attended a Christmas dance, and participated in the dancing. After coming into possession of this information the insurer called upon appellee for a statement as to his then existing condition, which was not furnished.
The testimony tending most strongly to show that the refusal to continue payments of disability benefits was arbitrary and fraudulent was the attitude of the appellant in regard to payment of benefits which accrued between the date of the first trial and the affirmance of that judgment by this court. The opinion on the former appeal was delivered November 23, 1936, and the judgment in that case for $50 was paid on December 1, 1936, and appellant’s attorney wrote appellee’s attorney stating that $100 in addition would be due, including the January, 1937, payment. But, instead of paying the $100 in addition to the $50 judgment, a check was sent for only $50. Thereafter payments accumulated at the rate of $10 per month, amounting to. $150, and that liability was compromised and settled for $130, appellee then being entitled to $150, if entitled to anything at all. But while payments were accruing to the extent stated a controversy had arisen as to whether any additional payments should be made.
Appellee explained to the satisfaction of the jury the circumstances above detailed which had led the insurer to conclude that his disability had ended. It was shown that the newspaper notice to the effect that appel-lee had taken over the management of the shoe store was published without authority, and was not true, that ap-pellee stayed in the store when he pleased and did what he was able to do, for which he was paid no salary, and that he was supported by his father and his father-in-law. Appellee had previously submitted to an examination by a physician selected by the insurance company, and had been advised by the doctor to take as much exercise asi he was able to, and that he had played a few games of golf, but that it required him four hours to make the rounds, which other players made in from one to an hour-and-a-half. Appellee admitted that he had danced on the Christmas occasion, and his own doctor stated that appellee was able to do this if he danced gently and for a short time. But appellee testified that any kind of work or exercise occasioned him much pain, and could be sustained for only short periods of time, and that he was able to render only slight and occasional services at the shoe store, and that frequently he was unable to go there for several days together.
Appellee’s testimony was to the effect that as the result of a gasoline explosion which had severely burned him, his legs had been reduced from twenty to thirty per cent, of their normal size, and that he had four skin grafts and had been ordered to return to the hospital for another, and his physicians testified that there was danger of blood clots in the legs, if appellee stood up too much and caused the circulation “to flow to his legs toó much, ’ ’ and that this would cause ulcers, and that his legs were as well as they would ever be.
While the facts and circumstances detailed above are sufficient to support the finding of the jury that appellee is totally and permanently disabled and rendered unable to follow a gainful occupation, we think it insufficient to support the finding that the insurer had acted arbitrarily or fraudulently in raising that question, and the same judgment must now be entered as was rendered upon the former appeal.
The judgment for the present value of future installments of benefits, which was found and is admitted to be $2,000, if a recovery could be sustained on that account, will be reversed, and judgment will be entered here for $100, which appellant admits to be the amount of installments due at the, time of the trial, with interest at 6 per cent, on each delinquency from the date it was due to the date of trial, and thereafter on the whole amount until paid. | [
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Holt, J.
Appellant brings tliis appeal from an adverse decision of the Pike circuit court, sitting as a jury, on his claim for $279.25 growing out of an automobile fire insurance contract with appellee.
The material parts of appellant’s complaint are: “The plaintiff states, that a policy of insurance was issued against his Ford truck, serial and motor number 18900275, October 3,1936, and a premium paid by the said plaintiff for one year against loss by fire and other mishaps. That, on February 11, 1937, the said truck was almost completely destroyed by fire. That, plaintiff demanded, of the defendant $280.00, the interest he claimed to have in said truck, and threatened to file suit unless the said amount was paid. That, on or about August 25, 1937, the plaintiff and defendant comprised the said claim, and defendant agreed to pay appellant $279.25. That defendant lias failed to settle the said amount as agreed.”
To this complaint, appellee made general denial and in addition set up as a defense that: ‘ ‘ This cause of action is founded upon a certain insurance policy issued October 3, 1936, for one year, and that in accordance with its terms a loss and damage agreement in the sum of $279.25 was signed by the plaintiff, E. W. Cash, with this defendant. That under the terms and conditions of the policy, the defendant delivered to.the Universal Credit Company this sum of money in full payment of the loss and damage under this policy. That the terms of the loss payable clause in said policy is as follows': ‘Loss, if any, to he adjusted with the purchaser, assured, though to be paid, subject to all the conditions of. this insurance, only to the Universal Credit Company for the account of all interests!”
The record reflects that appellant, E. W. Cash, purchased a Ford truck from the Nashville Motor Company on October 3, 1936, upon a monthly payment plan, financed by the Universal Credit Company,. $200.00 cash was paid on the purchase price of $680.00 and a note in the sum of $480.00, to be paid in twelve monthly installments of $40.00 each, was given by appellant. The truck was partly destroyed by fire on February 11, 1937, and at that time two payments had been made and there was a balance then due on the note of $400.00. At the time the truck was purchased, it was insured with appel-lee, Home Insurance Company, in the amount of $480.00, any fire loss to be paid to the Universal Credit Company, which was the purchaser of the note in question. The insurance policy provides: “Loss, if any, to be adjusted with the purchaser, assured, though to be paid, subject to all the conditions of this insurance, only to the Universal Credit Company, for the account of all interests.” The record further discloses that the Universal Credit-Company, about six months after the fire and when the truck seemed to have been abandoned by appellant, took charge of it and delivered it to the Nashville Motor Company, which paid them $125.00 for it. This sum of $125.00, the Universal Credit Company applied on the note of appellant, Cash, and about the same time appellee paid the Universal Credit Company $275.00 additional, and sometime later $4.25 to appellant, which paid in full the balance of $400.00 due the credit company on the note in question and a balance over of $4.25 to Cash.
After the damage to the truck by fire, appellant proceeded in an attempt to make settlement of his loss with appellee, Insurance Company. In the process of the attempted settlement, certain letters passed between the parties, which we deem it unnecessary to abstract here. This correspondence, however, resulted in a loss and damage agreement being entered into arid signed by the parties to this litigation and is as follows: “Loss and/or Damage Agreement. The undersigned hereby expressly agrees that the total net loss and/or damage occurring on or about the 11th day of February, 1937, and for which claim is made, as set forth in the undersigned’s signed Statement of Loss, dated August 30, 1937, to automobile covered by the above policy is $279.-25. The'sole purpose of this instrument is to fix and evidence the total amount for which claim is made. This instrument is, and is intended to be, binding as to the total amount of loss and/or damage said to have occurred. This instrument is not an acceptance of liability by the Company, does not commit the Company to payment of said claim and does not in any sense waive any of the conditions or provisions of the policy of said Company. Furthermore, upon, in the event, and in consideration of the payment of the above amount by Home Insurance Company, the undersigned hereby releases and discharges Home Insurance Company from any and all liability under its policy for said loss and/or damage, and the undersigned further agrees to hold Home Insurance Company, its successors or assigns, free and harmless from further claim for the loss described. Furthermore, upon, in the event,' and in consideration of the payment of the above amount by Home Insurance Company, th undersigned hereby subrogates the said Company to all rights and causes of action that said undersigned has against any person, persons, or Company whomsoever for damages arising to said automobile, and the undersigned agrees to execute any document required by said Company in the prosecution of said rights, and the company is hereby authorized and empowered to sue, compromise or settle in the undersigned’s name or other wise. • In testimony whereof the undersigned has hereunto executed this instrument and set his hand and seal this 18 day of September, 1937. E. W. Cash, Assured, Antoine, Ark.,. Witnesses: Guy D. Babcock, Antoine, Ark., Mrs. W. H. Holt, Antoine, Ark. Examined and approved. J. P. M.”
The trial court made the following findings of fact and conclusions of law: “On October 3, 1936, the defendant, Home Insurance Company of N. Y., issued to plaintiff its policy of insurance covering loss by fire to a 1935 model Ford truck for a period of one year. When this policy was issued the Universal Credit Company held a lien against the truck in the sum of $480.00, and the policy provided that any loss thereunder should be adjusted with the plaintiff though payable only to the Universal Credit Company, and liability under the policy was limited to $480.00, the amount of the lien held by the Universal Credit Company. On February 11, 1937, the truck Avas almost completely destroyed by fire. Defendant waived filing of proof of loss and an adjuster representing defendant Avas unable to locate plaintiff for some time. On July 6, 1937, $275.00 was paid to the Universal Credit Company by the defendant on said loss, and on October 5, 1937, an additional $4.25 was paid the Universal Credit Company. Plaintiff, through his attorney, wrote defendant in July and August, 1937, demanding $280.00 be paid him above the indebtedness due the Universal Credit Company, and the defendant, through its adjuster, agreed to pay $279.25 under the policy. In pursuance of this agreement the plaintiff on September 18,1937, executed a loss and damage agreement wherein he agreed that the total net loss or damage to the truck amounted to $279.25. Thereafter, on October 5, 1937, defendant paid the $4.25 balance al ready referred to under this agreement. • At this time and at the time of the fire plaintiff was still indebted to the Universal Credit Company in the sum of $400.00. In March, 1938, plaintiff brought this suit and - contends that the offer to settle made by him in July and August, 1937, amounted to a compromise of a disputed claim and that defendant accepted the offer to pay him $279.25 exclusive of the interest of the Universal Credit Company, and, having accepted his offer, are bound by it even though there might be no merit to such claim. I cannot concur in this contention. While it is true that $275.00 was paid to the Universal Credit Company on the loss before any adjustment was made with the plaintiff, the offer to settle made by plaintiff must be viewed in the light of the provisions of the policy and the loss and damage agreement which was executed by plaintiff oh September 18, 1937, after the alleged offer to compromise had been made. Under the terms of the policy the loss was payable only to the Universal Credit Company and was limited to $480.00, the amount of their lien. Under the loss and damage agreement executed by plaintiff, he agreed that the total net loss or damage to the truck was $279.25. This amount has been paid to the Universal Credit Company at a time when the plaintiff was still indebted to them in the sum of $400.00. It, therefore, appears that the liability of defendant under the policy has been fully determined without dispute, having been agreed to by the plaintiff and paid to the party entitled to receive it. Judgment will be entered for the defendant and the complaint of plaintiff will be dismissed.”
Appellant very earnestly insists that the judgment of the trial court is contrary to the law and the evidence in this case. To this contention, we cannot agree. We think that the insurance company, appellee, had the right, under its insurance contract with appellant, to make settlement with the Universal Credit Company, holder of the note, as its interest appeared. This court has many times held that a mortgagee under a mortgage clause in an insurance policy, has a vested interest, and in In surance Underwriters’ Agency v. Pride, 173 Ark. 1016, 294 S. W. 19, said: “We think a mortgagee or lienholder acquires a vested and enforceable right under an ordinary loss-payable clause as his interest may appear in an insurance policy which cannot be destroyed by a settlement or adjustment between the insurer and the insured.”
We also hold that the' loss and damage agreement entered into by the appellant and the appellee in this case is clear and unambiguous in its terms, is binding on the parties, and is a complete settlement of any and all rights of appellant growing out of the insurance contract with appellee in this case. This agreement clearly recites that the total net loss and damage is $279.25 and further states, “This instrument is, and is intended to be, binding as to the total amount of loss and damage.said to have occurred.”
We, therefore, conclude that the judgment of the trial court, sitting as a jury, and to which we must give the same force and effect that we would to a jury’s verdict, is supported by substantial evidence and should not be disturbed. Accordingly, the judgment is affirmed. | [
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John A. Fogleman, Justice.
John F. Wells, individually and as a citizen and taxpayer of the State of Arkansas, filed his petition for mandamus in the Circuit Court of Pulaski County, seeking to compel Joe Purcell, Lieutenant Governor of the State of Arkansas, Knox Nelson, President Pro Tem of the Arkansas Senate, and John E. Miller , Speaker of the Arkansas House of Representatives, to adjourn, or attempt to adjourn, their respective chambers of the Seventy-second General Assembly, or to certify the facts of their disagreement over their adjournment date to the Governor, so he could, under his constitutional authority, declare an adjournment. Petitioner exhibited Senate Concurrent Resolution 91, by which it was resolved, with the concurrence of the House of Representatives, that upon a date subsequently to be chosen, the Seventy-second General Assembly would stand in recess until the second Monday in January, 1981, then to be adjourned sine die, unless adjournment occurred earlier.
Respondents admitted that the General Assembly was in extended recess, but denied that appellants were entitled to any relief. They exhibited Senate Concurrent Resolution 14, by which the Senate, with the concurrence of the House of Representatives, had resolved, by a two-thirds vote of each chamber, to extend the regular biennial session beyond a 60-day duration.
It has been suggested that petitioner has no standing to bring this proceeding because it is a public right, not a private one, he is seeking to enforce. It is true that the statute defining the writ states that it is granted upon the petition of the aggrieved party or of the state, when the public interest is affected. Ark. Stat. Ann. § 33-102 (Repl. 1962). Our statute on this subject has not varied materially since the adoption of the Civil Code in 1869. See § 519, Civil Code of Arkansas; § 7021, Crawford & Moses Digest; § 9001 Pope’s Digest, Ark. Stat. Ann. § 33-102 (1947). Early cases supported the contention that, where petitioners alleged no interest to be protected, other than the interest of the public, they were not aggrieved, and were not entitled to an order granting the writ, because in a matter where only the public interest is affected, the writ can only be granted upon application of the state. Fuller, ex parte, 25 Ark. 443. It was later held that when the writ is sought for the enforcement of a public right, common to the whole community, it is not necessary that the relator have a special interest in the matter, or be a public officer, but the proceeding must be in the name of the state. Moses v. Kearney, 31 Ark. 261. Although the action there was dismissed because the applicants for the writ were designated only as residents and owners of lots, there was a clear intimation that, had they applied in the name of the state, their petition should have been considered. Still later in Willeford v. State ex rel, 43 Ark. 62, a writ of mandamus was granted to compel the clerk and two justices of the peace, who were assisting the clerk in canvassing election returns from an election on the question of moving a county seat, to proceed with the count of the votes in three townships from which they were irregularly transmitted, but was denied as to the returns from another township because the chancery court had taken jurisdiction to inquire into allegations of fraudulent voting. On appeal, this court not only sustained the writ as to the vote in the three townships, but held that the chancery court had no power in the matter, reversed the denial of the writ as to the remaining township and remanded the cause with directions to the trial court to issue the writ. Moses involved an effort by the petitioners to require the clerk to remove his office from Lewisburg back to Springfield, based upon their contention that Springfield was still the county seat of Conway County. The real distinction in the two cases is that the proceeding was brought in Willeford in the name of the state upon the relation of the petitioners, while that in Moses was not.
The rule is well settled, that when, in the absence of statutory regulation, the proceedings are for the enforcement of a duty affecting not a private right, but a public one, common to the whole community, it is not necessary that the relator should have a special interest in the matter, or that he should be a public officer. Moses v. Kearney, supra; Beene v. Hutto, 192 Ark. 848, 96 S.W. 2d 485. It seems that in Beene, this court indicated that the statutory formality of proceeding by styling the action in the name of the state upon the relation of the actual petitioners (who were citizens and taxpayers of the affected county) may have been more liberally construed than in earlier cases, because the contention that the action was improperly brought, because not brought in the name of the state, was rejected upon two grounds, i.e., that a suit may be brought by a private citizen to enforce a public duty and Art. 16, § 13 of the Constitution of Arkansas specifically provides for suits brought by taxpayers to protect inhabitants of a city, county or town against the enforcement of any illegal exaction. See also, Buchanan v. Halpin, 176 Ark. 822, 4 S.W. 2d 510.
Because of the styling and allegations of the petition in this case, we need not decide whether petitioner Wells could have proceeded in his own name. The caption of the petition shows the style of the case as “JOHN F. WELLS, INDIVIDUALLY, AND THE PEOPLE OF THE STATE OF ARKANSAS, UPON THE RELATION OF JOHN F. WELLS.” It is alleged in the petition that Wells is a citizen and taxpayer and that all other taxpayers to, and citizens of, this state have an interest in the proper performance of the duty with which Wells is seeking to enforce compliance. We take this petition to be in substantial compliance with our statutory requirement that the action be in the name of the state. See Radel Concrete Products, Inc. v. Clermont County Board of Health, 107 Ohio App. 159, 152 N.E. 2d 307 (1957). We point out that the respondents have not questioned the standing of the petitioner to bring this action, either in the trial court or on appeal.
It remains, however, to be seen whether the petitioner is entitled to the relief he seeks. At the outset, we must point out that, under the common law, the writ did not run to the legislative branch of the government. People v. Best, 187 N.Y. 1, 79 N.E. 890, 116 Am. St. Rep. 586,1 Ann. Cas. 58 (1907); People v. Morton, 156 N.Y. 136, 50 N.E. 791, 41 LRA 231, 66 Am. St. Rep. 547 (1898); State v. Bachrach, 107 Ohio App. 71, 7 Ohio Ops. 2d 402, 152 N.E. 2d 311 (1958), affd. 168 Ohio St. 268, 6 Ohio Ops. 2d 425, 153 N.E. 2d 671. Although Ark. Stat. Ann. § 33-102 (Repl. 1962) clearly states the power of the circuit court to issue the writ to an executive, judicial or ministerial officer to perform an act, the performance of which is enjoined by law, there has been no statute attempting to authorize the courts to issue the writ to the legislature.
The writ of mandamus cannot be issued to the legislature, even when the duty sought to be compelled is clear and unmistakable. Fergus v. Marks, 321 Ill. 510, 152 N.E. 557, 46 ALR 960 (1926); Lamson v. Secretary of Commonwealth, 341 Mass. 264, 168 N.E. 2d 480 (1960); Scarborough v. Robinson, 81 N.C. 409 (1879).
The doctrine of separation of powers, stated in Art. 4, § 2 of our constitution, has probably been the barrier to attempts to extend the reach of the writ to the legislature. Neither of the three separate departments of government is subordinate to the other and neither can arrogate to itself any control over either one of the others in matters which have been confided by the constitution to such other department. Fergus v. Marks, supra. The legislature, under the separation of powers, can neither be coerced nor controlled by judicial power. Scarborough v. Robinson, supra; Annot. 74 Am. St. Rep. 544.
The legislature is responsible to the people alone, not to the courts, for its disregard of, or failure to perform, a duty clearly enjoined upon it by the constitution, and the remedy is with the people, by electing other servants, and not through the courts. Fergus v. Marks, supra; Fouracre v. White, 7 Boyce (Del.) 25, 102 A. 186 (1917); Person v. Doughton, 186 N.C. 723, 120 S.E. 481 (1923). See also, In re Senate Resolution 4, 54 Colo. 262, 130 P. 333 (1913).
The matter is summarized concisely in an annotation appearing in 153 ALR at p. 522, viz:
It is well settled that the courts have no power to enforce the mandates of the Constitution which are directed at the legislative branch of the government or to coerce the legislature to obey its duty, no matter how clearly or mandatorily imposed on it, with respect to its legislative function.
The Maryland Court of Appeals put the matter in the proper perspective long ago. In Watkins v. Watkins, 2 Md. 341 (1852), that court said:
In regard to that part of the argument of the learned counsel for the appellant which was based on the supposititious case, that if the foregoing reasoning be correct, the senaté might defeat both the spirit and letter of the constitution by a failure to obey its injunctions, we have only to observe, that in all human contrivances confidence must be reposed somewhere, and that under the distribution of the powers of government in our State, it is not given to the judiciary to compel action on the part of a co-ordinate branch of the government. Its authority is confined to restraining the potency of its enactments when they transcend constitutional limits.
It is appellant’s contention that the provisions of the Constitution of Arkansas clearly limit the duration of the regular biennial sessions of the General Assembly and establish a clear and unmistakable duty of the General Assembly to adjourn, or attempt to adjourn, upon the completion of regular or special session business. Appellant pointed out that the date fixed for the convening of the Seventy-third General Assembly by Ark. Stat. Ann. § 4-101 (Repl. 1976) is the second Monday in January, 1981. The petitioner quotes Art. 5, § 17 of our Constitution, which provides that the regular biennial sessions of the General Assembly shall not exceed 60 days in duration, unless by a vote of two-thirds of the members elected to each house. Petitioner álso points out that, after completion of the business enumerated in a proclamation for an extraordinary or special session of the General Assembly, it can remain in session for a period not to exceed 15 days by a vote of two-thirds of all members elected to both houses. Art. 6, § 19, Constitution of Arkansas. He also relies upon the constitutional provision that, if the House and Senate disagree over the time of adjournment of either a regular or special session, the Governor has the authority to declare the adjournment, if the facts of the disagreement are certified to him by the presiding officers of the two chambers. Constitution, Art. 6, § 20.
There is certainly no clear limitation upon the legislative power to extend the session by a two-thirds vote and no clear specification of a time beyond which, in the discretion of the General Assembly, exercised by the vote of two-thirds of the members of both houses, the session may not be extended. The determination of the date for termination of an extended session is a matter of legislative discretion.
It must always be remembered that the state’s constitution is neither an enabling act nor a grant of enumerated powers, and the legislature may rightfully exercise the power of the people, subject only to restrictions and limitations fixed by the constitutions of the United States and this state. Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857; St. L. I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S.W. 938. Under our system of government the legislature represents the people and is the reservoir of all power not relinquished to the federal government or prohibited by the state constitution. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85; Hackler v. Baker, 233 Ark. 690, 346 S.W. 2d 677.
Adjourning and extending a legislative session are clearly among the powers of the General Assembly. It has exercised its powers. Even if they have been exercised erroneously, it is clear that the Circuit Court of Pulaski County had no power, without violating Art. 4, § 2 of the Arkansas Constitution and extending the scope of the writ of mandamus, to issue the writ to that body. Assuming, however, that the General Assembly had been subject to that writ, mandamus could not have been used to correct an erroneous decision already made. Burney v. Hargraves, 264 Ark. 680, 573 S.W. 2d 912.
Appellant contends, however, that the actions of the presiding officers of the two houses of the General Assembly can be controlled by mandamus. He does not specify just what these presiding officers should be required to do. Mandamus will not lie to compel the presiding officer of the senate or the speaker of the house to perform any act which is within his legislative functions, except for acts which are purely ministerial in character. State v. Bolte, 151 Mo. 362, 52 S.W. 262, 74 Am. St. Rep. 537 (1899); Kavanaugh v. Chandler, 255 Ky. 182, 72 S.W. 2d 1003, 95 ALR 273 (1934). See Annot., 66 Am. St. Rep. 556, 18 Am. Dec. 239. The only act on their part, which could be said to be ministerial, is to certify the disagreement of the two houses to the Governor, so he could adjourn the session. But the two houses are not in disagreement, even if they are in error. These officers are totally devoid of power to act in the matter. The courts have no supervisory powers over the legislature, a separate and coordinate branch of government. In re Love's Estate, 186 N.C. 714, 120 S.E. 479. To undertake to compel the presiding officers to act contrary to the action of their respective houses would constitute an attempt to supervise those actions, in violation of Art. 4, § 2. Mandamus cannot be used to undo legislative action or to compel revocation or rescission of legislative action in violation of the doctrine of separation of powers. State v. City of Shreveport, 231 La. 840, 93 So. 2d 187 (1957).
The eyes, ears and hands of the presiding officer of a house of the General Assembly are those of the house; he carries forward that which the house determines; and it would be intolerable that the presiding officer, even if he be the lieutenant governor, of a house should have the power to act against its will and determination or to refuse to act in defiance of its will. State v. Corley, 36 Del. 135, 172 A. 415 (1934). It has been held that the courts have no power under the separation of powers, by mandamus or otherwise, to interfere in any manner with the proceedings of either of the component branches of the General Assembly, or even with the actions of its clerks, so long as they are acting in obedience to the will of those bodies. Fox v. Harris, 19 W. Va. 419, 91 S.E. 209 (1917).
The authority of the appellees and respondents, the Lieutenant Governor, the President Pro Tem, and the Speaker, seems to us to be strictly limited, in the matter before us. We would not know how to specify what they should do, if we should order that the writ be granted. It would certainly be contrary to the separation of powers for a court to order them to act contrary to the expressed will of the bodies over which they preside.
The writ of mandamus does not create or confer authority upon the officer to whom it is directed. It should be directed to those whose duty it is to do the thing required. It must clearly appear that the person to whom it is directed has the absolute power to execute it; otherwise it should not be issued. Where the duty sought to be enforced is imposed upon the senate and the house and those bodies have refused to do that which is sought to be compelled, neither the president of the Senate nor the Speaker of the House has the power, without the concurrence of the house over which he presides, to execute the order, if made. Turnball v. Giddings, 95 Mich. 314, 54 N.W. 887, 19 LRA 853 (1893).
One seeking a writ of mandamus must show a clear, certain and specific legal right and the absence of any other specific, adequate legal remedy. Arkansas State Highway Employees Local 1315 v. Smith, 257 Ark. 174, 515 S.W. 2d 208; Bunting v. Tedford, 261 Ark. 638, 550 S.W. 2d 459; Girley v. Wood, 258 Ark. 408, 525 S.W. 2d 454. The purpose of the writ is to enforce the performance of a duty or a legal right after it has been established and not to establish a legal right. Kirkwood v. Carter, 252 Ark. 1124, 482 S.W. 2d 608; Brown v. Curtis, 254 Ark. 162, 492 S.W. 2d 235. The duty to be enforced by mandamus must be one which is clearly, specifically and peremptorily enjoined by law. Arkansas State Highway Employees Local 1315 v. Smith, supra. Where petitioner is not clearly entitled to the relief sought, this extraordinary writ will not be granted. Henderson v. Dudley, 264 Ark. 697, 574 S.W. 2d 658; Brown v. Curtis, supra. Mandamus may not be used to determine in advance what the petitioners’ rights are or the action to be taken shall be. Bunting v. Tedford, supra.
Appellant has failed to show a clear, certain, specific or established legal right which can be enforced by writ of mandamus to the presiding officers of the houses of the General Assembly. The courts cannot interfere with the legislature or the legislative process; they can only determine the validity of its acts. State v. Meyers, 38 Wash. 2d 330, 229 P. 2d 506 (1951).
The circuit court properly denied mandamus.
The judgment is affirmed.
Harris, C.J., not participating.
Hickman, Smith, and Purtle, JJ., concur. | [
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Smith, J.
This appeal presents tlie question whether the signature of Mrs. Emma M. Thompson to her alleged last will and testament is a forgery. Upon this issue many witnesses gave testimony more or less relevant, and we have before us a vast mass of testimony which cannot be reconciled. Without attempting to review the testimony in this opinion we announce our conclusion to be that there was sufficient testimony to support the finding that the will was genuine; but there is also sufficient testimony to support the contrary finding made in the verdict signed by eleven of the twelve jurors who tried the case. The chief insistence for the reversal of the judgment pronounced upon the verdict is that it was based, in part at least, upon incompetent testimony admitted over proponent’s objections and exceptions, and this, we think, is the only serious question presented for our decision.
Two preliminary questions may be briefly disposed of. The first is that the contestants should have been required to file pleadings setting up the grounds upon which their resistance to the probate of the will was based. The will was probated in common form, and letters testamentary were issued thereon. The heirs-at-law of the deceased prayed in proper form an appeal from the order of the probate court admitting the will to probate. We are cited to no statute requiring other pleadings, although it may have been well enough, and the better practice, to require contestants to state the ground of their contest, and thus define and restrict the issues to be tried.
In the chapter on Wills in 68 C. J., p. 1175, it is pointed out that some states have statutes requiring contests to include a statement of the grounds of contest, but it is there said that “In the absence of positive statutory requirements, where there is an appeal to an intermediate appellate tribunal in which a trial is had on issues of fact, the practice seems to be to require no statement of the reasons of appeal if the appellate court is bound to send the main issue of will or no will directly to the jury.”
The opinion in the case of Hamilton v. Hamilton, 178 Ark. 241, 10 S. W. 2d 377, recites the fact that there were no pleadings filed either in the probate court or in the circuit court on appeal in that ease, which was a contest over a will alleged to have been forged. However’, it is clear that no prejudice could have resulted from the failure of the court to require pleadings to be filed, for the reason that there had been a former trial of this case resulting in a hung jury, and it is not claimed that any issues were involved in the second trial which had not been raised in the first one.
The second point is that the court did not withdraw the case from the jury and render a decision. The basis of this contention is that, upon the conclusion of proponent’s testimony, the attorney for contestants asked the court to direct the jury to return a verdict finding against the will, and proponent’s attorney asked the court to direct a verdict finding for the will. The court declined both requests, and contestants proceeded to put on their testimony.
The practice of withdrawing a case from the jury upon request for a directed verdict was announced in the case of St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark., 71, 139 S. W. 643, Ann. Cas. 1913C, 1339, and was amplified in the case of Webber v. Rodgers, 128 Ark. 25, 193 S. W. 87, both of which cases have since been frequently cited and followed.
The effect of these cases is that where both parties have offered their testimony, and each requests the court for a directed verdict and requests no other instruction, the trial court may treat the case as having been withdrawn from the jury and submitted to the court sitting as a jury, and the judgment of the court, pronounced under the circumstances, has the same effect as if the jury itself had decided the case. The practice is quite common, as is reflected in numerous opinions of this court, for the defendant, at the conclusion of the plaintiff’s testimony, to request the court to render judgment for the defendant; but it has never been held that making this request forestalls the introduction of testimony by the defendant if the request is denied. However, we think that while in cases where both parties have offered all their testimony and each has asked the court for a directed verdict, and neither has asked any other instruction, the trial judge may then withdraw the case from the. jury; but he is not required to do so. It is even then within his discretion to submit the case to the jury, rather than to take the ease from the jury and decide it himself.
'But the real question in the case, as has been stated, is whether incompetent testimony was admitted which may have influenced the verdict of tlie jury. It will appear from a general statement of this testimony that it was prejudicial if it was incompetent. Its g'eneral purport was to the effect that Mrs. Thompson and her sisters and their children were not only very fond of each other, but were clannish in their relations to each other, and that Mrs. Thompson had always said that she wished her niece, Mrs. Meric Elcan Pulton, to have her home, and had made a will devising- it to her, whereas, under the will offered for probate, this valuable estate was devised to proponent except certain small sums of money. These were $100 to each of her sisters, $50 to each of her nieces and nephews, $25 to each of her grandnieces and grandnephews, $40 per month to a cousin, and $1,000 to the church of which she was a member. These items constitute a very small part, of the estate. Mrs. Thompson never had any children.
The question of law presented by this and other similar testimony showing the state of Mrs. Thompson’s feelings toward her relatives and toward proponent is whether the testimony was erroneously admitted. Most —but not all — of the testimony as to Mrs. Thompson’s declarations showing the state of her feelings toward the parties to this litigation were made prior to the date of the alleged will.
We think this testimony was not incompetent for two reasons. The first is that if it was error to admit the testimony, the error was invited.
In support of the will proponent offered his own and other testimony showing the intimate relation between himself and Mrs. Thompson, in whose home he had lived at one time as a member of her family, and the state of her feeling toward him. For instance, in response to the question asked by proponent’s attorney, “Did she (Mrs. Thompson) have any conversation with you after you prepared the will?”, the witness, who was an attesting witness, answered: “She made the remark that she wanted Mr. Holloway (proponent) to have the bulk of her estate, because he was the only one who had done anything for her.” The necessary implication of this and other testimony to the same effect is that Mrs. Thompson felt kindly to proponent and unkindly to her relatives. Having- put this relationship and state of feeling in issue, proponent had no right to object to testimony offered in its refutation. We have many cases to the effect that a party may not complain because the court admitted incompetent evidence on behalf of the other party if he was the first to introduce evidence of a similar character. In such cases the error is said to have been invited, and not prejudicial for that reason.
While the admission of this testimony might be held not to be prejudicial for the reason stated, we prefer not to place our decision upon this ground alone. Our cases are not harmonious on the subject, and we take this occasion to announce the rule to be hereafter followed. This much may be said in extenuation of the discord in our cases. This court, like a number of others, first followed the rule announced by the Supreme Court of the United States in the case o.f Throckmorton v. Holt, 180 U. S. 552, 21 S. Ct. 474, 45 L. Ed. 663, and this court, as well as a number of others, as will presently be made to appear, has attempted to ameliorate the rule announced in the case last cited and avert the injustice which its application had previously encompassed without disapproving that case.
Of this Throckmorton Case, it may first be said that the opinion was rendered by a badly divided court, as three of the justices' dissented upon the point under discussion, while a fourth justice concurred only in the result, so that the opinion was made by the barest possible majority of the court.
In the case of Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33, the trial court excluded testimony to prove tlie declarations of the testator made about a year after the date of the instrument claimed to be a will, to the effect that he had made no -will. The reason given for affirming the action of the trial court in excluding this testimony was that “He (the testator) may, to secure his own peace and comfort during life, to relieve himself from unpleasant importunities of expectant heirs, conceal the nature of his testamentary dispositions, and make state ments calculated and intended to deceive those with whom he is conversing.” This reason does not apply here, because no testimony was offered that Mrs. Thompson had stated that she would die intestate.
This' case was cited and approved in the case of Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242, where it was said: “That decision seems in line with the decided weight of authority, as shown by the collation of authorities in the note to the recent case of Throckmorton v. Holt, 180 U. S. 552, 571, 21 S. Ct. 474, 45 L. Ed. 663.”
In the later case of Connor v. Bowers, 184 Ark. 102, 41 S. W. 2d 977, it was said: “The general rule announced by this court in the cases of Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33, and Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242, is that declarations of a decedent either before or after the execution of a will, unless a part of the res gestae, are inadmissible where the issue is one of forgery.”
If we had no other cases on the subject, these would indicate that we were definitely committed to the proposition that the declarations of an alleged testator, unless a part of the res gestae, were inadmissible where a will was being contested upon the ground that it was forged. But we have other cases, and their holding is to the contrary. However, before reviewing them, it may be said, as a practical matter, that the admission only of statements, which are a part of the res gestae, in the execution of a will, operates to render admissible the evidence of the parties who may have participated in its forgery, and of excluding other testimony, which would make it highly probable, if not entirely certain, that the will had been forged. This rule permits the forgers to testify, and excludes the testimony of others, as it is highly improbable that anyone except the conspirators would be present when the wall was forged. .
The case of Longer v. Beakley, 106 Ark. 213, 153 S. W. 811, is one of these cases announcing the contrary rule. If there were any doubt as to what this opinion holds — • and we think there is none — -the dissecting opinion of the late Chief Justice McCulloch, of honored and rev ered memory, removes the doubt. In his dissenting opinion, Judge McCulloch, who had written the Flowers Case, supra, cites the Leslie Case, supra, in support of his dissenting view, but his opinion was a dissenting opinion, and not the opinion of the court. It is said this Longer Case was not .a will contest, and, as a matter of fact, involved the question whether an assignment of an insurance policy had been forged. 'But both the majority and the dissenting opinions recognized that the rule relating to the admission of testimony in will cases was applicable to and governed in that case. It was said in the majority opinion that “For all practical purposes the execution of this request for change of beneficiary was Frankring’s will, because it disposed of practically all he owned,” and upon the issue whether the change of beneficiary was a forgery, we held competent evidence showing the mental attitude of the insured to his relatives who Avould have been the beneficiaries in the insurance policy if no change had been made, and also his attitude towards the substituted beneficiary.
In the case of Hamilton v. Hamilton, above referred to, in a contest over the probate of a will alleged to have been forged, the court refused to give an instruction numbered 5 to the effect that the intention of the alleged testatrix in regard to the distribution which she wished made of her estate was entitled to no consideration in determihing whether or not the purported will was properly executed. In holding that it was not error to refuse this instruction, it was there said: “We think a will executed in accordance with the declared intention of a testator would be a very strong circumstance tending to show the genuineness of a will assailed on the ground that the signatures thereto were forgeries. We cannot think of a stronger circumstance tending to establish the genuineness of a will under such circumstances. The case of Johnson v. Hinton, 130 Ark. 394, 197 S. W. 706, cited by appellants in support of their contention on this point, is not applicable. In that case the issue was whether the will had been properly executed in accordance with the statutory requirements. Of course, the intention of a testator under such circumstances could have no effect. The testator, in order to give validity to his will, must execute his will in accordance with statutory requirements, irrespective of what his declared intention might or might not have been. The court did not err in refusing to give appellants’ requested instruction No. 5.”
We shall not attempt to reconcile these cases, as that task would be impossible to perform. We shall content ourselves with the announcement of the correct rule to follow. The conclusion we shall announce has been reached after the fullest consideration of many cases on this subject, but we shall attempt no review of them, as their number is almost without limit. If one wishes to review the cases on the subject, many of them may be found cited in the cases of Rea v. Parsley, 170 Ga. 788, 154 S. E. 325; In re Morrison’s Estate, 198 Cal. 1, 242 Pac. 939; State v. Ready, 78 N. J. L. 599, 75 Atl. 564, 28 L. R. A., N. S., 240, and In re Estate of M. Creger, 135 Okla. 77, 274 Pac. 30, 62 A. L. R. 690, and especially those in the note to the last-cited case. See, also, chapter on Wills, 68 C. J., p. 1004, and cases there cited.
In the body of the opinion in the ease of In re Creger’s Estate, supra, it was said: “Perhaps a majority of the earlier cases are in harmony with the Throckmorton Case. Perhaps, on account of the prestige of the Supreme Court of the United States, the case of Throckmorton v, Holt doubtless overshadowed for a time the decisions of the state courts, which took the oposite view. Eecently, however, the case has not been followed to any great extent, and we believe now that it is against Hie great numerical weight of the authorities, as well as it is against reason and the natural rule of relevancy.” A vast number of cases are there cited in support of the statement quoted.
In the case of Rea v. Pursley, supra, it was said: “Probably the majority of the earlier cases are in harmony with Throckmorton v. Holt, supra, but it has been suggested that this is due to the fact of the prestige of the Supreme Court of the United States, which rendered the decision in that case. In the later cases the correct ness of the rule laid down in that case has been questioned and repudiated. Now the weight and trend of the authorities are in favor of the admissibility of declarations of an alleged testator, both those made before and those made after the date of the purported will, on the issue of forgery of the will, where the issue is raised by other substantial evidence, and proof of the declarations is corroborative of other testimony.”
In this opinion the Supreme Court of Georgia, after citing a great many cases, proceeded to say: “It will be noted that the early cases in California, New Jersey, New. York, Ohio, Texas, and West Virginia, which supported the doctrine that these declarations are inadmissible, have not been followed in later cases from the Supreme Courts of these states. We feel safe in holding that such declarations, though they may not be admissible, when standing alone, to prove or disprove the genuineness of a will offered for probate, on which point we do not express any opinion, are admissible in all cases where the genuineness of the instrument has been assailed by other proper evidence either to strengthen or weaken the assault. This is the settled rule in England, and, as we have shown, is well supported by the authorities in this country.”
The case of In re Morrison’s Estate, supra, was a California case. California was one of the states which for a long period of time adhered to the doctrine of the Throckmorton Case, but later, in a series of well-considered opinions, at last committed itself definitely to the opposite view. In this Morrison Case the Supreme Court of California, in commenting upon restrictive rules of evidence which limited the inquiry as to the proof of the handwriting’ of an alleged testator and that of the subscribing witnesses in the inquiry as to whether the will was genuine or had been forged, had this to say: “But in this state of case was no other evidence admissible? Were the jury bound to decide the issue and make up their verdict upon such testimony alone, and do the rules of evidence inexorably exclude from their consideration every other fact or circumstance that would tend to throw light upon the subject, so as to render it prob able or improbable that such a paper was ever written by the deceased, or in corroboration of the direct testimony as to handwriting given on either side? We think not. It must be admitted that testimony as to handwriting, in any case of alleged forgery, though the best the nature of the case admits of, is usually the most unsatisfactory species of evidence courts of justice have to deal with. ’ ’
In holding that the inquiry should not be thus restricted the court had this further to say: “It seems to us. that in such a case every collateral fact and circumstance which is not clearly immaterial and irrelevant ought to be admitted, to aid the jury in reaching the truth, which after all is the object of every jury trial.”
After quoting extensively from the case of Hoppe v. Byers, 60 Md. 381, the Supreme Court of California, in this Morrison Case, proceeded to say: “The foregoing decision and the reasons which are given to support it has been cited with approval by a number of other states in decisions made since its rendition, and the doctrine therein declared, with notes embracing these decisions, has been embodied in the text of the following authors in the editions of their works on evidence issued or revised since the decision of the Maryland Case: See 1 Greenleaf on Evidence, (16th Ed.) pp. 57, 81, 261; 4 Chamberlayne on Evidence, § 2649; Chase’s Stephens Digest of Law of Evidence, (2d Ed.) p. 100; 1 Elliott on Evidence, § 533; 1 Wigmore on Evidence, (2d Ed.) § 112, 3 Id. §§ 1735, 1736. In the author’s note to Wigmore on Evidence, § 132, supra, the case of Hoppe v. Byers, supra, and the later decisions of other states adopting its doctrine are cited at leugth, and the case of Throckmorton v. Holt, supra, which indicates a different rule, is criticized as against the weight of authority and as a ‘lonesome decision.’ ”
The note to the Creger Case, supra, annotates extensively the question of “admissibility of testator’s declarations upon the issue of the genuineness or due execution of purported will.” The annotator says: “The apparent weight and trend of authority, notwithstanding the contrary result was reached in a decision in the Fed eral Supreme Court (Throckmorton Case), is in favor of the admissibility of declarations of the alleged testator (both those made before and those made after the date of the purported will), on the issue of forgery of the will, where the issue is raised by other substantial evidence, and proof of the declarations is therefore corroborative of other testimony.” Numerous cases from eighteen different states are cited to support this declaration of the law.
The annotator sums up his exhaustive review of the authorities with a statement which appears to us to be the proper rule, and which we now adopt, as follows: “It seems that if an instrument purporting to be a will is produced, and a prima facie case is made out of its due execution and genuineness by testimony of the subscribing witnesses, proof of their handwriting, or otherwise, those contesting the will should not be allowed to overthrow it merely by proving declarations of the testator inconsistent with the purported will, and, therefore, unless they offer some other proof that the instrument is not genuine, but is a forgery, or was not duly executed, it will be proper to exclude evidence of the testator’s declarations. Probably some of the decisions excluding the declarations can be explained on this ground, even though not expressly so stated. They may have been offered without sufficient corroborative evidence.” In the instant case testimony was offered as to numerous facts and circumstances tending to show that the will was not genuine, and we conclude, therefore, that the testimony as to the declarations of Mrs. Thompson were properly admitted.
. Upon the question as to “Time of declarations with respect to date of will as affecting question; res gestae,” the annotator, in the note to the Creger Case, supra, at page 710, makes this very pertinent and practical observation: “It is evident,, however, that if the courts were to permit the date of the will to determine the admissibility or inadmissibility of such declarations on the issue of forgery, they would be assuming the very point in issue, viz., the genuineness of the will; otherwise they would be giving importance to a purely fictitious date inserted by the forger.”
This statement is so convincing that we cannot withhold our approval from it.
Upon the whole case we are of the opinion that the testimony complained of was admissible, and as the testimony fully supports the verdict and the judgment pronounced thereon it must he affirmed, and it is so ordered. | [
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George Rose Smith, Justice.
The appellant, Arkansas Western, is a public utility engaged in the distribution of natural gas in 65 towns and communities, in 11 counties, in northwest Arkansas. In 1975 it filed with the Public Service Commission a proposed rate schedule increasing its charges to some of its customers. After extended hearings the Commission approved part of the requested increases in rates and directed Arkansas Western to file redesigned rate schedules conforming to the Commission’s findings. The circuit court affirmed the Commission’s order. Arkansas Western now argues that the Commission’s findings are erroneous and confiscatory in four particulars.
I. Annualized Depreciation. The test year selected for the rate calculations was 1974. The Commission allowed annualized depreciation of $255,795 as an operating expense for the year, and, as a balancing item, added that amount to the depreciation reserve as of the end of the test year, thereby decreasing the rate base by the same amount. Arkansas Western accepts the figure $255,795 as a correct expense allowance, but it insists that the Commission should not have made a like addition to the depreciation reserve.
It is plain enough that if a certain amount of depreciation is allowed as an operating expense of the utility company, then a like amount must eventually be deducted from the rate base. Otherwise, the ratepayers would pay for the same item twice, once as an operating expense and a second time as a return on plant value which had not been correspondingly reduced to reflect the depreciation. The problem is essentially one of accounting, for the test year is admittedly a fictitious one in which no revenue is actually received nor any expenses incurred.
Arkansas Western, however, quite properly presents the issue as one of law, the members of this court not being qualified to explore difficult problems in accounting. As a matter of law, all the authorities seem to support the position taken by the Commission. Counsel for the Commission cites administrative decisions from five different states, all reaching the same conclusion. Typical is the discussion by the Kansas State Corporation Commission in Re United Telephone Co. of Kansas, 6 PUR 4th 350 (1974), where it was said:
The obvious fair matching of operating expenses, capital and rate base necessitates that if the company is alloted twelve months of depreciation expense as recorded on its books, then twelve months of depreciation must be credited to the reserve. Likewise, in a rate proceeding, if the company is to be allowed an additional depreciation expense in the form of new accrual rates, and an adjustment for year-end plant balances, likewise the credit should be made to the reserve.
This commission has consistently held that adjustment to depreciation expense should be offset by a credit to the reserve and we have traditionally approved the types of adjustment proposed by the staff. We find that the proper matching of expense and rate base requires the annualization be made to both in this case.
In its reply brief Arkansas Western recognizes that the cases cited are contrary to its argument, but it insists that “the deduction of the annualized depreciation of $255,795 for the test year 1974 from the ‘rate base’ is incorrect from a theoretical rate making standpoint and as a matter of law.” As to theoretical rate making, the accounting problem embraces not only the deduction of the annualized depreciation at the end of the year but also the coincident addition of new construction completed during the test year. It is evident that the continuous process of depreciation must be continually offset by new construction. How to reconcile those two constants is a matter not discussed in the briefs and one upon which we must defer to the expertise of the Commission. As far as the law is concerned, the company has not submitted any legal argument in answer to the conclusion unanimously reached in other jurisdictions.
II. Minimum Bank Balances. Arkansas Western asked that the rate base include minimum bank balances of $404,500. The Commission denied that request, stating that in calculating the $381,533 allowance for “working capital” it had taken into consideration “the requirements of the Company as relate to the need for having funds available on deposit in their bank accounts to meet their normal financial obligations.” The Company contends that the requested minimum bank balances should have been approved.
Arkansas Western maintains about 35 bank accounts. Two out-of-state accounts do not affect the present issue, as they are depositories for payments of bonded indebtedness and stockholders’ dividends. A substantial non-interest-bearing checking account is carried with the Worthen Bank in Little Rock, where Arkansas Western has a $3,000,000 line of credit. Similar checking accounts are also carried with two Fayetteville banks, where Arkansas Western has smaller lines of credit. The other accounts are not shown to have much bearing on the present issue. Those accounts are maintained in the towns where the company does business and are used for making local payments and for depositing local receipts pending a transfer to one of the three lead accounts.
The Company made no effort to show just how the precise minimum requested, $404,500, was arrived at. It seems to have been used by the Company for many years. In 1963 the Commission approved minimum balances of $404,-000. In 1969 the Commission disallowed the same requested minimum of $404,000. Re Arkansas Western Gas Co., 81 PUR 3d 399, 402 (1969). In the present case two company witnesses — Joe Crumpler, Arkansas Western’s secretary-treasurer, and William V. Martin, the prospective successor to that office — testified that $404,500 should be allowed for minimum bank balances. Each statement was a conclusory opinion given by an interested witness, as neither man explained how that particular figure had been arrived at.
A second difficulty with the Company’s proof, as the Commission pointed out, is that it did not separate basic minimum bank balances, which are kept to avoid bank service charges, from compensatory balances, which are kept to maintain the company’s credit standing with the three lead banks. Five interested witnesses — two company employees and one officer from each of the three leád banks — all testified, essentially as a matter of opinion, that Arkansas Western’s credit standing with the banks would be improved, with a corresponding ability to obtain loans at a lower interest rate, if the Company kept substantial non-interest-bearing checking accounts with the banks.
No actual figures were given, doubtless because Arkan sas’ usury law deters a bank from requiring compensatory balances. As the witness Penick, an officer of the Worthen Bank, expressed it: “ ‘Worthen’ does not require, nor does it ask, either in writing or by understanding, a compensating balance. However, adequate balances are one of the factors that go into our pricing procedure in order to reach our target yield.” The witness went on to say that in banking circles a prime loan is defined as one made for a short term to a borrower with the very best credit standing who maintains a bank balance of approximately 20% of the loan while it is outstanding. The Company witness Crumpler testified that Worthen does require a 20% compensatory balance, “upon which we pay interest, but we don’t have the use of the money because we have to leave it on deposit.”
As we have said, no actual figures are given to show the benefit to be derived by the ratepayers from compensatory balances. The disadvantages to the ratepayers, however, are quite apparent. It would cost them about $84,000 a year (as conceded in effect by the Company witness Martin) to maintain minimum balances of $404,500 as part of the rate base. Management would have no incentive to resist the lending banks’ requirements that compensatory balances be maintained, because the stockholders would receive a return on the money anyway. And, finally, the Company would in actuality be paying a higher interest rate on its borrowings, but the ratepayers would not be getting the benefit of the increased interest expense as a deductible item for income tax purposes. Re Boston Edison Co., 16 PUR 4th 1 (1976).
The Company made hardly any effort to separate compensatory bank balances from other checking-account requirements. The witness Lewis testified that his “informed estimate” was that approximately $150,000 in deposits in all the Company’s accounts would be required to maintain checking privileges. Lewis, however, did not explain the basis for his informed estimate. He did say that a number of variables were involved in the estimate and that for an accurate determination each item deposited would have to be identified. Moreover, Lewis is not an officer of the Company, with first-hand knowledge of its various accounts. He is an officer of one of the Fayetteville lead banks.
The question, as we have often said in reviewing issues of fact turning upon the substantial evidence rule, is not whether the testimony would have supported some other conclusion, but whether it supports the conclusion reached by the trier of the facts. The Commission stated that it had considered the Company’s banking needs in making an allowance for working capital. Hiere is a marked absence of actual figures with respect to the entire question of the requested allowance of $404,500 for minimum bank balances as a part of the rate base. We have no sound basis for saying that the Commission was wrong in its final summation: “Without a precise determination of what amount specifically is to be designated a ‘compensatory balance,’ and the production of evidence as to the benefits and the costs to be derived from these balances, the Commission has insufficient information on which to act.” The burden was on the applicant to supply that information.
III. Rate of Return on Equity Capital. This point has to do with the proper return to the common stockholders upon their investment in the Company’s public utility business. The Commission followed the generally accepted rule, which was stated long ago in Bluefield Water Works & Improvement Co. v. Public Service Commn. of West Va., 262 U.S. 679, 692-3 (1923):
A public utility is entitled to such rates as will permit it to earn a return on the value of the property which it employs for the convenience of the public equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings which are attended by corresponding risks and uncertainties; but it hás no constitutional right to profits such as are realized or anticipated in highly profitable enterprises or speculative ventures. [Italics supplied.]
The standard to be followed — a rate of return comparable to that being made by other businesses attended by corresponding risks and uncertainties — is unquestionably a matter of judgment and opinion, not of demonstrable fact. The Company’s expert witness, Samuel Joseph, was of the opinion that the rate of return should be 14%. The staff’s ex pert witness, Basil Copeland, recommended a return of 9.63%. Joseph used the earnings-price ratio method of estimating a fair return; Copeland used the capital asset pricing model. The Commission preferred Copeland’s method, but found his figure too low. The Commission adopted, instead, the average rate shown on the staff’s Exhibit Two, which listed 20 other utility companies’ rates of return. That average, as corrected on rehearing, was found to be 12.33%. The situation before us is comparable to our review of a jury verdict in a condemnation case, when the jury must reconcile conflicting expert testimony. We have no basis for saying that the Commission’s conclusion is not supported by substantial evidence or that the return is so low as to be confiscatory.
IV. Adjustment of Capital Structure. Arkansas Western, in addition to its public utility business, also explores for and produces natural gas, which it sells to its ratepayers under our “fair-field price” law. Ark. Stat. Ann. § 73-1903 (Repl. 1957). Over a period of years the Company’s stockholders, instead of distributing the profits from this nonutility business as dividends, have allowed the profits to remain in the Company as a reinvestment. For the 1974 test year those retained earnings amounted to $11,716,227.
The Commission’s staff, in presenting its case against the allowance of the proposed increases in their entirety, made an adjustment by which $6,834,021 was eliminated from retained earnings and was assigned to other accounts. The staff’s principal witness, Copeland, in explaining the adjustment, testified:
Since these retained earnings are the result of fair-field pricing and not the result of the retention of earnings on the rate base, the capital structure used to derive the weighted average cost of capital (and rate of return) must be adjusted or the stockholders will earn a return on retained “earnings” that were actually supplied by the customers.
Copeland’s approach cannot be sustained, for various reasons. First, a utility company is not required to “give up for the benefit of future subscribers any part of its ac cumulations from past operations. Profits of the past cannot be used to sustain confiscatory rates for the future.” Board of Public Utility Commissioners v. New York Telephone Co., 271 U.S. 23, 32 (1926). Second, it is impossible to earmark the particular dollars that went into the retained earnings account. And third, the fair-field price law provides that in natural gas utility cases the fair value or reasonable market price of natural gas produced by the utility company shall be allowed as an operating expense. § 73-1903, supra. Copeland’s approach in effect would deny Arkansas Western the benefit of fair-field pricing.
The Commission quite correctly rejected Copeland’s approach, saying in its findings:
Mr. Copeland, for the Staff, adjusted the capital structure to reflect recent sources and uses of funds. We do not adopt the Staff’s method of adjusting the capital structure, but we find the end result reasonable. The President of [Arkansas Western] , Mr. Scharlau, testified that if the Company’s balance sheet were restated to give effect to F.A.S.B. (Financial Accounting Standards Board) Rule No. 9, about six million dollars would be taken out of retained earnings and be accounted as deferred taxes . . . The effect would be similar to that resulting from Mr. Copeland’s restatement of capitalization.
Thus it will be seen that although the Commission rejected Copeland’s method, it reached the same result — the elimination of $6,834,021 from retained earnings — by relying upon Scharlau’s testimony. No other supporting evidence was mentioned by the Commission, nor has any been cited by counsel.
On what is essentially an issue of fact we cannot regard Scharlau’s testimony as substantial evidence supporting the Commission’s finding. Scharlau was asked about a trip he made to Washington to testify against a proposed F.A.S.B. rule (which apparently was not in fact adopted), soon after the depletion allowance was abolished by Congress. Scharlau explained that he was not an accountant and would have to use layman’s terms. He said the Board’s first proposal was extremely drastic and “would have changed us to a deficit of something like minus two dollars and seventy-five cents a share, almost three dollars a share, deficit earnings. Scharlau said that if the Company had decided to restate the balance sheet, the retained earnings account would have been greatly diminished.
Q. Do you have an estimate on that amount that you could give the staff?
A. Well, I just have to horseback it. Three bucks a share, and we have a million seven shares outstanding — we’re getting close to six million dollars.
Thus, first, Scharlau’s testimony was not an assertion of fact but a speculation about what might have happened if the proposed drastic rule had been adopted. Second, Scharlau’s horseback estimate of 1,700,000 shares at three dollars a share comes to only $5,100,000, which is about $1,700,000 less than Copeland’s precise figure of $6,834,021, which the Commission approved as a reasonable end result. The Commission’s approval of the adjustment in the Company’s capital structure must be set aside for want of any substantial evidence to support it.
The Circuit Court’s judgment is affirmed except as to Point IV. On that point the judgment is reversed and the cause remanded, through the circuit court, to the Commission, so that the Company’s redesigned rate schedule may conform to the Commission’s order as modified.
Fogleman, J., not participating.
Byrd, J., dissents. | [
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John A. Fogleman, Justice.
This action is a proceeding brought by M & LC/Stillwell Mortgage Company to register a default judgment obtained by it against Rollins Nursing Home, Inc. and Calvin D. Rollins in the Circuit Court of Broward County, Florida on October 24, 1977. Appellants resisted the registration of the judgment upon the ground that the Florida court had no jurisdiction over them under the Florida long-arm statute. The trial court held that appellants were properly served with summons issued out of the Florida court because they were engaged in a business venture in the sense of the Florida statute, and permitted registration of the judgment. We disagree and reverse.
There is no dispute about the facts. Calvin D. Rollins was an officer of Rollins Nursing Home, Inc. He went to Ft. Lauderdale, Florida in December, 1976, to make an application for a loan from appellees in order to buy three nursing homes in Arkansas. These nursing homes were owned by Arkansas residents. He met with Martin Small and filled out the application for the loan, signing it as agent for the corporation. When Small told Rollins he would have to pay a finder’s fee of 1%, an appraisal fee of $2,500 and $4,500 for some item, the nature of which Rollins did not recall, Rollins wrote and delivered the checks on which the Florida suit was based. The checks were not honored because Rollins stopped payment on them three days later, after he had returned to Arkansas. Rollins said that the reason for stopping payment was that the owners of the nursing homes his company was planning to buy backed out on the sale and had advised Small that they were not selling to appellants. Rollins said that no appraisal was ever made because it was not needed.
The applicable Florida statute is Fla. Stat. Ann. § 48.193 (1977). The pertinent portion of that statute reads:
(1) Any person, whether or not a citizen or resident of this State, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.
After hearing the evidence, the trial judge held that trying to borrow $1,200,000 was a business venture and not an isolated occurrence, that more than one act was done in furtherance of the attempt, and that Rollins apparently had some conversations beforehand, went to Florida, executed the checks and a contract binding himself, individually and as guarantor, if the obligation was consummated. Since the trial court held these acts sufficient as a basis of jurisdiction under the Florida long-arm statute, the Florida judgment was sustained under the full faith and credit clause of the United States Constitution.
We disagree with the trial court’s determination that the transaction in Florida constituted a business venture in Florida under Florida law. The Florida long-arm statute is strictly construed by the courts of Florida. Lyster v. Round, 276 So. 2d 186 (Fla. App., 1973); Chase Manhattan Bank v. Banco Del Atlantico, 343 So. 2d 936 (Fla. App., 1977); American Baseball Cap, Inc. v. Duzinski, 308 So. 2d 639 (Fla. App., 1975); Esberger v. First Florida Business Consultants, Inc., 338 So. 2d 561 (Fla. App., 1976); Bank of Wessington v. Winters Government Sec. Corp., 361 So. 2d 757 (Fla. App., 1978); Escambia Treating Co. v. Otto Candies, Inc., 405 F. Supp. 1235 (N. D. Fla., 1975); Citizens State Bank v. Winters Government Sec. Corp., 361 So. 2d 760 (Fla. App., 1978); Sausman Diversified Investments, Inc. v. Cobbs Co., 208 So. 2d 873 (Fla. App., 1968); James v. Kush, 157 So. 2d 203 (Fla. App., 1963); Fawcett Publications, Inc. v. Rand, 144 So. 2d 512 (Fla. App., 1962); Spencer Boat Co. Inc. v. Liutermoza, 498 F. 2d 332 (5 Cir., 1974). Furthermore, the Florida statute requires more activities or contacts to sustain service of process than are required by the decisions of the United States Supreme Court. Youngblood v. Citrus Associates of New York Cotton Exchange, 276 So. 2d 505 (Fla. App., 1973).
To reach the trial court’s result requires a very liberal construction of the term “business venture” in the Florida statute — one far more comprehensive than the term has ever been given by a Florida court. In Wm. E. Strasser Construction Corp. v. Linn, 91 So. 2d 458 (1957), the Florida Supreme Court showed by language in its opinion that the facts of this case would not bring it within the Florida concept of business venture. There the Linns, residents of Tokyo, Japan, had, through an attorney-in-fact residing in New York, engaged Strasser to construct a three-unit apartment building on a lot in Miami, Florida owned by the Linns. The court said:
. . . While at first glance the mere execution of the construction contract might appear in and of itself to be lacking in elements of a business venture, a more mature and thorough consideration of the allegations of the complaint suggest that the Linns had invested in a piece of Florida real estate and, by the agreement, contemplated investing further capital in a purely business enterprise. If the building were completed and the owners then proceeded to collect the rents and enjoy the profits of the Florida operation, we believe it could hardly be contended with success that they were not engaging in a business venture in this State. We think it equally clear that by the purchase of the land and the execution of the construction agreement the Linns were initiating the first substantial steps toward setting themselves up in a business venture in this state. . . .
Of course, in this case, appellants proposed to set up and extend a business venture in Arkansas, not one in Florida, so the mere application for a loan and execution of checks to pay fees in connection with obtaining the loan were lacking in elements of a business venture, as that term was construed in Linn and in cases subsequently mentioned.
Although the Florida Supreme Court held in State v. Register, 67 So. 2d 619 (1953), that the listing of an orange grove for sale gave a basis for “long-arm” service when considered along with the business venture initiated by the sellers when they acquired the grove, the court said:
It is Driver’s theory that the Webers were engaged in the business of owning and operating a citrus grove and that the listing of the property for sale with Driver was incidental to the operation of the business. Driver here contends that this was sufficient as a basis to obtain substituted personal service on the Webers, as authorized by Section 47.16, supra.
Although we do not agree that the listing of the grove property for sale was a “transaction or operation connected with or incidental to” the business in which petitioners were engaged in this State, to wit: the maintenance and operation of a citrus grove, we believe that the allegations of the complaint filed by Mr. Driver demonstrate clearly that the purchase of the property and the subsequent listing of the same for sale amounted to engaging in a “business venture” as contemplated by our statute.
These decisions (and some others later cited) were rendered on statutes which were in effect in Florida prior to July 1, 1973, the effective date of Fla. Stat. Ann. § 48-193, but they contain language identical, or virtually so, to § 48.193 (1) (a) quoted above. The Florida Supreme Court seems to have construed these words in the same way, whatever statute is involved. It seems unlikely that any construction different from that given the identical language in the earlier act would be given the later act. Escambia Treating Co. v. Otto Candies, Inc., 405 F. Supp. 1235 (N. D. Fla. 1975). The rule of strict construction still applies to § 48.193. See, Georgia Savings & Loan Service Corp. v. Delwood Estates, Inc., 315 So. 237 (Fla. App., 1975).
Most of the Florida decisions on the particular question involved here have been made by District Courts of Appeals; however, the Florida Supreme Court has spoken significantly on it, not only in the cases hereinabove cited and in DeVaney v. Rumsch, 228 So. 2d 904 (1969), as quoted in Lyster v. Round, infra, but also in Dinsmore v. Martin Blumenthal Associates, Inc., 314 So. 2d 561 (1975). In Dinsmore, the validity of service was questioned on two separate sections of the Florida long-arm statute. The service was held invalid under the business venture section, but sustained under another. In that case a Florida corporation brought suit to recover a brokerage commission resulting from an exchange of stock of D. J. Dinsmore Company, a South Dakota Corporation, for stock in Jim Walter Corporation, a Florida corporation. On only one occasion did any of the defendants come to Florida for a meeting with officers of Jim Walter Corporation. The court said:
In order to determine whether jurisdiction can be acquired over the non-resident defendants pursuant to Fla. Stat. § 48.191 (1), it is necessary to determine whether the individual or corporate defendant, was carrying on a business or business venture in this State. The activities of the person sought to be served pursuant to Fla. Stat. § 48.181 (i) must be considered collectively and show a general course of business activity in the State for pecuniary benefit. DeVaney v. Rumsch, 228 So. 2d 904 (Fla. 1969). A nonresident defendant, which engages the services of brokers, jobbers, wholesalers or distributors, can be doing business in this State pursuant to Fla. Stat. § 48.181 (1) if the nonresident defendant, through brokers, jobbers, wholesalers or distributors was engaged in a course of conduct in Florida for the purpose of realizing a pecuniary benefit. Even if the activities of the defendant were not sufficient to constitute a business or business venture pursuant to Fla. Stat. § 48.181 (1), jurisdiction over the person of a defendant can still be acquired under Fla. Stat. § 48.181 (3) if such defendant sells, consigns or leases within this State personal property through brokers, jobbers, wholesalers or distributors. If Fla. Stat. § 48.181 (3) is complied with, even a single sale, consignment or lease raises a conclusive presumption that the defendant is operating, conducting, engaging in or carrying on a business venture in this State. Thus, a defendant may be carrying on a business venture pursuant to Fla. Stat. § 48.181 (3), although that defendant is not carrying on a business or business venture pursuant to Fla. Stat. % 48.181 (1). The method of service under Fla. Stat. § 48.181 (3) is identical to that explained under Fla. Stat. § 48.181 (1).
Turning now to the applicability of Fla. Stat. § 48.181 (1), the plaintiff failed to show that the defendant was conducting a general course of business activity in this State. The mere giving of a listing to a business brokerage firm which does business in Florida by a nonresident to sell stock in a foreign corporation does not indicate a general course of business activity in this State. See, Hayes v. Greenwald, 149 So. 2d 586 (Fla. 3d DCA 1963). The record does not reflect any acts taken by the plaintiff in this State on behalf of the defendants . . . [Emphasis ours.]
The United States Court of Appeals for the Fifth Circuit has considered the reach of the section of the Florida long-arm statute involved here. That court, in holding in Uible v. Landstreet, 392 F. 2d 467 (1968), that the statute did not apply, said:
The argument that the execution of a promissory note by Landstreet’s group and its delivery in Florida where it was to be performed constitutes a business venture in Florida within the contemplation of section 47.16 Florida Statutes, F.S. A., may be disposed of summarily. The Florida courts have held the contrary, Odell v. Signer, Fla. App. 1964, 169 So. 2d 851, 853; aff'd, Signer v. Odell, Fla. 1965, 176 So. 2d 94; and so must we, e.g., Monarch Ins. Co. of Ohio v. Spach, 5 Cir. 1960, 281 F. 2d 401.
We are also unpersuaded by Uible’s contention that Landstreet’s trip to Jacksonville, Florida, for the closing of the stock purchase was an important jurisdictional element. Florida Investment Enterprises, Inc. v. Ken tucky Co., Inc., Fla. App. 1964, 160 So. 2d 733, upon which he relies is clearly distinguishable. In that case the nonresident defendant executed a lease on a motel in Florida and “by this instrument committed herself to the accomplishment of many affirmative acts which amounted to operating, conducting, engaging, or carrying on a business or a business venture in this state. Furthermore, it is clearly evident from the record that the instant motel business would not be in existence had not Mrs. Hayes executed the lease.” Id. at 740. Land-street’s group made no such commitments.
The court then considered whether other activities of Land-street and his group were sufficient additional circumstances to render the service made under the statute valid. The court added:
. . . Put succinctly, this simply adds up to the purchase of stock in a Florida corporation by a group of nonresidents, attendance by one of them at a stockholders’ meeting, and inquiry about the financial affairs of the corporation. No Florida court has held, or would hold we think, that such investment activities are within the scope of section 47.16. F.S.A., Cf., Unterman v. Brown, Fla. App. 1964, 169 So. 2d 522.
In Spencer Boat Co., Inc. v. Liutermoza, 498 F. 2d 332 (5 Cir., 1974), the same court evaluated the Florida decisions on the questions, saying:
Defendants’ activities in Florida do not fit the literal terms of the statute. To do business or conclude a business transaction is not “to operate, conduct, engage in, or carry on a business or business venture in the state,” and the statute must be construed strictly, not broadly. See Lyster v. Round, 276 So. 2d 186, 188 (Fla. App. 1973) (Citing DeVaney v. Rumsch, 228 So. 2d 904 (Fla. 1969) ); Young Spring & Wire Corp. v. Smith, 176 So. 2d 903 (Fla. 1965). . . .
The case of Lyster v. Round, 276 So. 2d 186 (Fla. App., 1973), involved a check given by a non-resident for the down payment on a house. The non-resident had stopped payment on the check. The First District Court of Appeals after holding that an isolated transaction involving the sale or purchase of a home did not amount to a business venture under the long-arm statutes, stated:
In DeVaney v. Rumsch [228 So. 2d 904, 907] the Supreme Court, speaking through Justice Boyd, propounded the legislative intent in the enactment of the long-arm statute here considered to be: “. . .[T]hatany individual or corporation who has exercised the privilege of practicing a profession or otherwise dealing in goods, services, or property, whether in a professional or non-professional capacity, within the State in anticipation of economic gain, be regarded as operating a business or business venture for the purpose of service under Florida Statute § 48-181, F.S.A., in suits resulting from their activity within the State. As indicated in Matthews [Matthews v. Matthews, Fla. App., 122 So. 2d 571] the activities of the person sought to be served must be considered ‘collectively’ and show a general course of employment and conduct of carrying on business activity in the State for pecuniary benefit.”
Appellees advance the argument that this court should take judicial notice of the expanding economy in Florida and the constantly rising values of real estate in the rapidly growing resort areas of our state. They urge that we proceed from this premise to the assumption that anyone who buys real estate in Florida at this is speculating on the possibility of realizing a profit from his investment even though the purpose of the purchase may be for a home as distinguished from business or developmental property. Although this may have been good argument in the trial court had any evidence been adduced to support such postulates, we do not consider that it can be accepted as a substitute for the clear and convincing proof required under the decisions herein-above cited in order to demonstrate the applicability of the statute.
In a Florida case somewhat like the one before us, Odell v. Signer, 169 So. 2d 851 (Fla. App. 1964), it was held that “the signing of a note and the defense of a law suit are not sufficient acts, in and of themselves, to constitute carrying on or engaging in a business or business venture.” The court held, however, that the additional circumstances did bring the defendants, officers of a corporation doing business in Florida, within the purview of the Florida statute. The court said that the signing of the note would not be considered in a vacuum, but that the circumstances surrounding its signing must be considered. The reasons for holding that the trial court had jurisdiction over the individual defendants were: (1) the note was signed in order to end litigation which arose from business activities in Florida by the defendant corporation and individual defendants who had served as agents of the corporation in conducting those activities; and (2) the activities of the corporation, which was doing business in Florida, were chargeable to the individual defendants because, as agents of the corporation, they would be personally liable to any third person injured by their tortious activity, so the acts of the corporation which constituted doing business in the state were attributable to these individuals for the purpose of determining jurisdiction.
In Hyco Mfg. Co. Rotex Intern. Corp., 355 So. 2d 471 (Fla. App., 1978), the Third District Court of Appeals used this pertinent language:
It has been consistently held that an isolated act will not subject a foreign corporation or a non-resident to the jurisdiction of a Florida court. In the case of Lyster v. Round, 276 So. 2d 186 (Fla. 1st DCA 1973), the court held that an isolated act which, from any objective viewpoint, could not be held to constitute the operation, conduct, engagement in or carrying on a business or business venture, is not sufficient to activate the provisions of Section 48.181, Florida Statutes (1975).
This case is in no wise similar to Horace v. American National Bank & Trust Co., 251 So. 2d 33 (Fla. App. 1971) or to Dublin Co. v. Peninsular Supply Co., 309 So. 2d 207 (Fla. App., 1975). In Horace, a non-resident of Florida contended that his signing of a guaranty agreement in Florida was not sufficient to constitute carrying on or engaging in a business venture in Florida within the meaning of Fla. Stat. Ann. § 48.181. (This statute contains language identical to that in § 48.193). The evidence showed that prior to January 31, 1969, Travel Coach Inc., a Florida corporation doing business in Florida, had a line of credit with American National Bank guaranteed by three individuals. On January 31, 1969, appellant Horace and two other individuals appeared at the bank and substituted their signatures on a guaranty agreement for Travel Coach. Horace and the two others, after informing the bank that they had acquired a 60% interest in Travel Coach, opened a commercial checking account for Travel Coach by executing signature cards. Service upon Horace was held valid. The court held that the acts of Horace, whether considered alone, or coupled with the activities of Travel Coach, created the minimal contacts necessary to meet federal constitutional due process requirements; however, in deciding the question whether the individual defendant in that case was engaged in a business or business venture, the court found that the acts of Horace were such that he came within the purview of the earlier holding in Odell v. Signer, 169 So. 2d 851 (Fla. App., 1964), but did not hold that the signing of the guaranty alone was sufficient basis for application of the Florida long-arm statute. The Florida court said:
When we consider the circumstances surrounding the execution of the guaranty in the case sub judice we likewise find something more than just a mere signing of the guaranty. The rationale of Odell is applicable to the case sub judice so that the acts of Travel Coach can be imputed to Horace for the purpose of determining the existence of jurisdiction. [Emphasis ours.]
The court then said:
Apart from Odell it is our view that the individual acts of the defendant in and of themselves irrespective of the activities of Travel Coach established the requisite minimum contacts so as to permit the maintenance of the suit below.
The latter quotation relates to federal due process requirements only.
In Dublin, the court held that a concern that had sold its products to three Florida distributors for at least five years, grossing at least $13,000 per year therefrom, was “doing business” in Florida and said this about Horace:
* * * Although one act alone within the state viewed in light of surrounding circumstances, can cause jurisdiction to attach, Horace v. American National Bank & Trust Co. of Ft. Lauderdale, 251 So. 2d 33 (4th D.C.A. Fla. 1971), the affidavit states there were several acts here. * * *
It is quite significant that the “one act alone” must be “viewed in the light of surrounding circumstances.”
We do not see how, in the light of the above holdings, the mere signing of the application and the checks involved here could possibly be held to constitute a business venture.
The judgment is reversed and the cause dismissed.
Harris, C.J., not participating.
Byrd and Holt, JJ., dissent.
Supplemental opinion on denial of rehearing delivered February 11, 1980
PER CURIAM.
Appellee has filed a petition for rehearing advancing an argument and relying upon a subsection of the Florida statute that was never mentioned in its original brief. That statute is Fla. Stat. Ann. § 48.193 (1) (g) (Supp. 1979), which appellee incorrectly cites in its petition for rehearing as § 48.193 ... (3) (g). That subsection provides for “long-arm” jurisdiction of actions for breach of contract in the state of Florida by failing to perform acts required by the contract to be performed in that state. Appellee then cites Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So. 2d 1082 (Fla. App., 1977) scad Professional Patient Transportation, Inc. v. Fink, 365 So. 2d 209 (Fla. App., 1978). The first case involved the non-resident defendant’s failure to pay for services rendered by a Florida corporation when there was an express promise to pay, and the breach consisted of the debtor’s failure to seek the creditor in Florida and make payment, no place of payment having been specified. The latter case simply reversed a judgment quashing long-arm service because the complaint had alleged that the nonresident defendants had breached their agreement to make payment in Florida for services rendered to them by the Florida plaintiff outside Florida. The appellate court held that these facts constituted a breach which amounted to the failure to perform acts required by the contract to be performed in Florida under Fla. Stat. Ann. § 48.193 (1) (g), citing the first case relied upon by appellee here in his petition for rehearing.
The application of the subsection of the statute now relied upon by appellee and of the authorities cited is doubtful, to say the least. In the first place, it does not seem that the “place of payment” was Florida. The checks were drawn on Morrilton Security Bank and the checks bore its address, i.e., Morrilton, Arkansas, so that bank was the payor bank. Sec. .85-4-105 (b) (Add. 1961). The drawer was Rollins Nursing Homes, Inc., whose address was shown on the check as P.O. Box 27, Cabot, Arkansas, 72023. It appears that the place of payment of these checks would have been Morrilton, Arkansas, the address of the payor bank. See Brady on Bank Checks (5th Ed.) 27-7, § 27-4. Thus it is not at all clear that the cases now cited by appellee would have any application at all.
In the next place, appellee’s Florida judgment was based upon a complaint seeking damages for non-payment of three checks “in connection with a business venture in which Defendants were engaged in Broward County Florida, to-wit: contracting with Plaintiff for the furnishing to Defendants of certain financing for property owned by Defendant, Rollins Nursing Home, Inc. and located without the State of Florida.” There was no allegation of breach of contract in the complaint. Thus, jurisdiction of the Florida court was based upon § 48.193 (1) (a) and not § 48.193 (1) (g).
Sec. 48.193 (1) (g) was never invoked in the pleadings in the Florida court in which the judgment was rendered. This “breach of contract” section was barely mentioned in the Arkansas trial court and seems to have been abandoned when appellants’ attorney pointed out to the trial judge that no breach of contract was alleged in the Florida complaint. The point appellees now raise, if it has any merit, has undoubtedly been waived.
Rule 20 (g) of the Rules of the Supreme Court and Court of Appeals provides that the petition for rehearing should be used to call attention to specific errors of law or fact which the court’s opinion is thought to contain and that counsel are expected to argue the case fully in their original briefs. Petitioner is in no position to ask a rehearing under Rule 20.
The petition for rehearing is denied. | [
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Darrell Hickman, Justice.
In 1973, the appellant bank obtained a $72,000.00 judgment against the appellee, Dorothy Mathews. When Mrs. Mathews’ house burned in 1978, the bank attempted to attach her portion of the insurance proceeds and apply them to the judgment debt. The Union County Chancellor held the money was a substitute for her homestead and, therefore, constitutionally exempt from execution by the bank.
On appeal the bank argues the chancellor’s ruling was against the preponderance of the evidence. To agree we would have to find the chancellor’s decision to be clearly erroneous. Rules of Civil Procedure, Rule 52. This we cannot do. We affirm the decree.
The essential facts are undisputed. The bank’s judgment against Mathews was for a business debt. On May 4, 1978, Mathews’ house was destroyed by fire. June 2nd, she was divorced and the chancery court ordered the insurance money on the house to be divided between her and her former husband. There was another party that had an interest in the proceeds who is not a party to this appeal. Neither is her former husband.
June 6th she obtained, from the insurance company, a $ 10,000.00 advance which she used to make a down payment on a new home. She obtained title to this home on June 9th. She had been told by the insurance company that her temporary living expenses at a motel were getting out of hand and she needed to either rent a house or an apartment. Obviously she decided to buy a house.
On June 16th the bank executed on both the lot on which the destroyed house had stood and her new home. She claimed both properties as her homestead and therefore exempt from execution. ARK. CONST, act. IX, § 3. The chancellor ordered that she had to select one piece of property or the other; she selected her new home. The lot was ordered sold and the bank bought it at a forced sale on July 14th.
July 20th the bank garnished the remaining insurance money which was being held by the insurance company because the exact amount of the loss had not been determined.
She claimed the money was exempt as substituted homestead property.
The matter was submitted to the chancellor on the pleadings and the testimony of an agent of the insurance company.
The chancellor found the insurance proceeds exempt from execution, quoting from the case of Obenshain v. Obenshain, 252 Ark. 701, 480 S.W. 2d 567 (1972):
When the owner of a homestead voluntarily sells the property, the proceeds of such sale are not exempt. On the other hand, when the property is subjected to a forced sale, the debtor’s share of the proceeds is exempt if he intends to use the money to acquire another homestead. [Emphasis added by the chancellor.]
The court added:
Mrs. Mathews did in fact use the $10,000.00 she received from the insurance company for the down payment on another home which she claims as her homestead. . . .
The appellant takes the position that Mrs. Mathews should not be allowed to claim both her new home and the proceeds from the old home and that she abandoned her homestead rights to the proceeds when she elected to claim her new home as exempt. Furthermore, appellant argues there was no evidence that she intended to use the money to purchase a new homestead or pay on her newly acquired home.
We disagree. There is no doubt insurance money or proceeds from a forced sale of a homestead are exempt from execution. Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S.W. 2d 559 (1931). Furthermore, those proceeds are exempt from execution for a reasonable period of time to allow a person to invest in another homestead. Simms v. McFaddin, 217 Ark. 810, 233 S.W. 2d 375 (1950).
Mathews never had the money. She invested all she received in a new home and no doubt the chancellor found she intended to do likewise with the remainder. He emphasized language in the Obenshain case regarding intent and referred to the fact that she used the $10,000.00 she received to pay down on her new home.
She never abandoned her claim to the lot or the proceeds; she claimed both at every opportunity. While a person cannot have two homesteads at the same time, the law recognizes that a reasonable period of time must be given a person to invest the money in a new homestead. Simms v. McFaddin, supra.
This whole matter took place over a period of a few weeks during which the property was being divided by the divorce court, subject to attachment, or in the case of the insurance proceeds, subject to a garnishment action.
It is true that Mathews did not testify she intended to invest the remainder of the proceeds in her new home. However, we think that we can fairly conclude that the chancellor found that she intended to use the remainder of the insurance proceeds to pay on her new home. In order to make certain that the law is not perverted by the appellee, we will affirm the decision of the chancellor on the condition that the money is used by the appellee solely to pay for her new home. The chancery court will retain jurisdiction to insure that this happens.
Affirmed.
Harris, C.J., not participating. | [
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George Rose Smith, Justice.
The two defendants, Charles Henry Williamson and Jerry Morris, were charged with criminal conspiracy to commit capital felony murder. The State’s proof was that the defendants employed Tommy Lee Baker (a state police officer acting undercover) to murder Jimmy Dale Haney and paid Baker $1,000 in part payment for the contemplated murder. The court, sitting without a jury, found both defendants guilty and imposed sentences of life imprisonment. Five points for reversal are argued, but none has merit.
One of the defendants, Williamson, and the intended victim, Haney, were business associates. They had jointly insured their lives for $50,000, payable to either upon the death of the other. Apparently the other defendant, Morris, accompanied by Williamson, first made an attempt to kill Haney at a motel on September 10, 1977, but that attempt failed.
On September 19 Williamson arranged a meeting with J. O. Stewart, who had actually been working as a confidential informant for the Secret Service in counterfeit money cases. At that meeting, on September 20, Williamson told Stewart that he wanted to have a man killed and asked if Stewart knew anyone who could do it. Stewart said he thought he could get it done and would undertake to make arrangements.
Stewart reported the matter to the Secret Service. A plan was adopted by which Stewart was to introduce the two defendants to Officer Baker, who was to be presented as an out-of-state ‘ ‘hit man.’ ’ Those four men accordingly met at a truck stop in Pulaski county on September 24 to arrange for the murder. Officer Baker was wearing a concealed transmitter, which transmitted the conversation to a nearby recording device manned by two other police officers. The conversation (if it took place) leaves no possible doubt about the defendants’ guilt. The proposed murder of Haney in return for $2,000 was discussed in detail. Williamson and Baker arranged to meet again the next day. That conversation was also recorded. Williamson paid Baker $1,000 and also gave him a pistol, though it was left up to Baker whether he would use that particular weapon. Two days later the prosecuting attorney filed the present information charging the two defendants with a conspiracy to commit murder.
I. The State introduced the tapes of the two conversations and a typewritten transcription made from them. Officer Baker testified that on March 8, 1979 (two weeks before the trial), he had reviewed the transcript while he listened to the tapes and that it was an accurate recording of the conversations, though he could not remember them word for word. That testimony established admissibility. Webb v. State, 253 Ark. 448, 486 S.W. 2d 684 (1972); Uniform Rules of Evidence, Rule 901, Ark. Stat. Ann. § 28-1001 (Repl. 1979). There is actually no claim that the transcript is inaccurate. Nor is there any claim of surprise, it being indicated that the defense had been given an opportunity to copy the tapes before the trial.
It is argued, however, that a proper foundation for the introduction of the tapes was not laid, because the State did not call as witnesses the two officers who manned the recording device. In the first place, it is not shown what helpful testimony the officers could have supplied, because there is no indication that they could have known at the time whether or not the recording device was working. Second, Uniform Rule 901, supra, provides that the requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Analogously, we held before the adoption of the Uniform Rules that a photograph might be authenticated by a witness who neither took the picture nor was present when it was taken. Wheeler v. Delco Ben, 237 Ark. 55, 371 S.W. 2d 130 (1963). Here Officer Baker’s testimony was sufficient authentication, especially as there was no proof questioning the authenticity of the tapes.
II. It is argued that the gun which Williamson gave to Baker was not relevant and should not have been admitted in evidence. Suffice it to say that the production of the gun tended to corroborate Baker’s testimony.
III. Haney testified on direct examination that he and Williamson had taken out the $50,000 joint life insurance policy. On cross examination he said that the insurance agent, John Paul, had brought in the policy (apparently the application) and that Haney had signed it. He admitted, however, that he had never seen the policy and did not know whether it was in force at the time of the offense charged. Defense counsel then moved to strike “the direct testimony of Mr. Haney. ’ ’ It is now argued that the motion should have been granted.
There are two answers to this argument. One, the motion to strike all the witness’s direct testimony was too broad, because much of it was about other matters and was admissible. Martin v. State, 236 Ark. 409, 366 S.W. 2d 281 (1963). Second, the State was entitled to offer proof of motive, even though that proof is not essential in a prosecution for murder. Sneed v. State, 159 Ark. 65, 255 S.W. 895 (1923). The policy itself did not have to be produced, because it was not closely related to a controlling issue. Uniform Rules of Evidence, supra, Rule 1004(4). If the parties had applied for the policy and thought it was in force, those facts were admissible to show motive, their weight being for the trial judge to decide.
IV. It is argued that the court should not have permit ted the State to prove that Morris apparently tried to kill Haney about two weeks before Williamson first sought to engage a professional killer. Inasmuch as Haney had already testified about the insurance coverage, the earlier attempt was admissible to show motive and ill will. Uniform Rule 404 (b); Freeman v. State, 238 Ark. 804, 385 S.W. 2d 156 (1964). Such an attempt only 14 days before the crime was certainly not too remote to be relevant.
V. Finally, Haney testified on direct examination about Morris’s first attempt on Haney’s life, though Haney was not then aware of Williamson’s complicity. On cross examination Haney admitted that it had been his expressed intention to find Morris and settle the matter himself rather than to appeal to the police for assistance. It is argued that the trial judge should have acquitted both defendants, on the theory that they acted under duress and were justified in plotting to murder Haney. The argument does not merit discussion.
We have examined the record for other possibly prejudicial errors, but find none.
Affirmed.
Harris, C.J., not participating. | [
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Frank Holt, Justice.
Appellant’s 68 acres of land in western Little Rock were annexed at appellant’s request by the appellee city on September 16, 1975. The following day, appellant filed a petition with the city seeking rezoning of his property from single family, to which it was automatically zoned upon being annexed, to higher uses; i.e., one third multi-family, one-third quiet business (offices and similar uses), and one-third commercial, leaving 3.6 acres of woods as a buffer zone between the Pleasant Valley Addition and the proposed development. The petition was denied by the City Board of Directors. Thereupon, appellant brought this suit against the city alleging that the action of the board was an unreasonable, arbitrary and capricious denial of appellant’s constitutional right to.the highest and best use of his property and seeking to enjoin the city from denying the uses sought in his petition. The Pleasant Valley Property Owners Association and two adjoining property owners intervened as defendants. We first consider appellant’s contention that the preponderance of the evidence reflects that the city’s zoning ordinance is void. Appellant attacks the validity of the zoning ordinance for failing to comply with statutory requirements.
Appellant cites Ark. Stat. Ann. § 19-2829 b (Repl. 1968) which provides:
Following adoption and filing of the land use plan, the planning commission may prepare for submission to the legislative body of a recommended zoning ordinance for the entire area of the municipality.
The zoning ordinance shall consist of both a map and a text.
Appellant argues that the city has failed to adopt a “land use plan.” On December 21, 1971, the City Board of Directors “accepted” the 1990 Comprehensive Development Plan for Pulaski-Saline Metropolitan Area, as prepared by the Metropolitan Area Planning Commission. The plan was accepted as “only a guide” to be, “in no wise binding in any particular with which said plan deals.” Appellant argues that, because this plan is not binding on the city, the city has no land use plan and, therefore, is not in compliance with § 19-2829 b. Appellees respond that this position is “sheer nonsense,” pointing out that the plan was accepted by the city as a “land use” guide and that the plan includes a “land use plan” which includes policy statements, general design considerations, proposed land uses and projections as to future land use needs. It is clear that the city has accepted the Comprehensive Plan prepared by Metroplan for use as a guide for establishing criteria in changing zoning classifications. We think this suffices for compliance with the statute. A land use plan is meant to be just that - a plan. It is not to be legally binding on the city. Even Mr. Castin, a witness for appellant, views the purpose of a development plan as being one for serving as a guideline and not to be binding. 82 Am. Jur. 2d, Zoning and Planning, § 69 states that a comprehensive plan “is a policy statement to be implemented by zoning regulations, and it is the latter that has the force of law .... Furthermore, a comprehensive plan, when it has been prepared by the planning board or agency, is generally deemed to be advisory, rather than controlling, and it may be changed at any time.” Appellant also stresses that the plan fails to state that the city “adopts” the plan. We do not think that the insertion of the word “adopt” into the resolution accepting the plan as a land use guide is a necessary prerequisite for compliance with our statute. Certainly, use of the word “accepts” falls within the spirit of the law. The city defends its compliance with the statute on other grounds. However, suffice it to say that the zoning ordinance in effect on April 6, 1976, when the city acted on appellant’s petition for annexation, was not null and void for failure to comply with § 19-2829 b.
Appellant also argues that the city’s failure to follow any of its known and admitted planning criteria in denying the application was arbitrary and capricious. Appellant asserts that two criteria ignored were the City Planning Commission’s and its staff which recommended approval of the application. However, the planning staff’s report noted that there could be potentially “enormous implications on the surrounding area” and pointed out several problem areas that would have to be dealt with should the development proceed; i.e., impact on traffic and adjacent property owners, ade-quacies of existing street systems, the precedent for continued lineal development along Highway 10 upon which appellant’s property abuts, the availability of sufficient sewer capacities, and the creation of potential drainage problems. Further, the city adduced evidence from its expert witnesses who verified these views. Appellant says another criterion not followed was Metroplan’s 1990 Comprehensive Development Plan which recommended a commercial development at the intersection of Highway 10 and 1-430 at the southeast corner of this intersection. However, appellant’s property is located at the southwest corner of the intersection. Appellant says that the Metroplan Pulaski Area Transportation Study of 1974 Annual Report recommended a commercial develop ment at the southwest corner of appellant’s property. However, the city notes that this plan has not been adopted by it. It is also insisted that the city did not follow the criteria as to the master street plan and the statutory requirement, previously discussed, of a land use plan.
Appellant seems to argue that, because the board chose not to follow the recommendations of the various reports and groups, its action is arbitrary and capricious. However, the board is not bound by these recommendations. They are only factors to be considered by the Board of Directors in arriving at its ultimate decision as a legislative body. The chancellor does not try a city zoning decision de novo but, instead, determines whether the city’s action was arbitrary, and this court, on appeal, only determines whether the chancellor’s finding was contrary to the preponderance of the evidence. City of Batesville v. Grace, 259 Ark. 493, 534 S.W. 2d 224 (1976); and Fields v. City of Little Rock, 251 Ark. 811, 475 S.W. 2d 809 (1972). Here we cannot say that the city arbitrarily and capriciously failed to consider its own criteria.
Appellant also contends that a preponderance of the evidence reflects that the city acted arbitrarily and capriciously in refusing to rezone his property from single family use to commercial and multi-family use. The chancellor found otherwise and we agree. As previously indicated, we do not reverse the chancellor’s finding as to the propriety of the city’s action in a zoning decision unless it is clearly against the preponderance of the evidence. Fields v. City of Little Rock, supra. Further, there is a presumption that the City Board of Directors, a legislative body, acted in a reasonable manner when they refused to rezone the property. Lindsey v. City of Fayetteville, 256 Ark. 352, 507 S.W. 2d 101 (1974). Here, appellant’s 68 acres of land are located in western Little Rock at the southwest corner of 1-430 and Highway 10. The property is joined on the east by this interstate, on the north by Highway 10, on the west by Rodney Parham Road and on the south by the Little Rock Water Works Treatment Plant and Pleasant Valley addition. The acreage is vacant except for appellant’s residence and is practically in the midst of a high density residential area. Appellant produced four professional experts who testified that appellant’s application for rezoning was justified. Appellees responded with experts who contradicted their testimony and were of the view that the city’s action was reasonable and appropriate. The areas of disagreement among these witnesses included: the most appropriate and best use of the land, traffic conditions (an estimated increase of 24,500 cars per day), fire safety, the city’s financial ability to provide necessary improvements, and whether the “scale” of the proposed rezoning would result in an acceptable size commercial area in a high density residential area. It appears the proposed development does not adjoin any commercial activity. Two adjoining property owners and representatives of the Pleasant Valley Property Owners Association, appellees, testified in opposition to the proposed rezoning. According to them, it would have an adverse impact upon their property. No landowners appeared in behalf of the proposed rezoning. After hearing these various witnesses, the chancellor succinctly found:
. . . Plaintiff produced the testimony of several notable expert witnesses the effect of which was a conclusion, with supportive reasons that the proposed zoning was in all things proper; that the planned development would put Plaintiff’s property to its highest and best use.
On the other hand the City and Intervenors in opposition to Plaintiff produced the testimony of several notable expert witnesses the effect of which was a conclusion, with supportive reasons . . . that the proposed development was improper city planning and should be denied.
Obviously from the alignment of the eminent expert witnesses in their opposite views, we are dealing in an area in which honest, dedicated and sincere people differ. The Court does not conclude that either side of this argument can be said to reach their respective conclusions arbitrarily, capriciously or unreasonably, and in such position, and this Court being limited to a determination of this narrow issue, the Court concludes that the Complaint of the Plaintiff must be dismissed without relief.
We certainly cannot say that the chancellor’s findings are against the preponderance of the evidence.
Even so, as a subordinate argument, appellant contends that the city was arbitrary in maintaining a single family residential zoning on appellant’s property. We find this contention without merit. Under § 43-28 of the City Code of Ordinances, lands, when annexed as here, are automatically and simultaneously treated as “having that use classification of the most restrictive district consistent and compatible with the use to which each such separate parcel is then devoted until a zoning plan of the annexed area is prepared and adopted.” Appellant’s property was appropriately treated as A-l single family residential. Here appellant filed his own request for rezoning the day following annexation. Appellees have not contended that appellant’s property, when finally zoned by the city, should be restricted to totally single family zoning. However, until such time as a zoning plan is adopted, and since we hold that the chancellor found that the city did not act arbitrarily in denying appellant’s petition for rezoning, appellant is, under § 43-28 of the City Code of Ordinances, limited to single family residential zoning.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Hickman, JJ.
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James H. Pilkinton, Judge.
In the early morning hours of January 4, 1977, Detectives Hardester and Moomey of the Little Rock Police Department vice squad arrested appellant and transported him to the Little Rock Police Department Detention Center. While conducting a “strip search” of appellant, the detectives found three foil packets which were seized and stored.
Officer Moomey ran a field test on one of the packets and the test result was positive for cocaine. Moomey, without opening all the packets, assumed the others also contained cocaine. He turned all three packets over to Officer Sylvester of the Narcotics Division, telling him that they were three packets of cocaine. Sylvester opened one of the packets, observed a white powdery substance, and assuming that all three packets contained cocaine, logged them in and stored them in the narcotic safe. Appellant had been jailed on a charge of possession of cocaine with intent to deliver.
The three packets were subsequently taken to the crime lab of the State Health Department for analysis! Michael S. Keller, a chemist there, tested the substances in the three foil packets, and found that two of them contained white powder which tested positive for cocaine. The third packet, which was smaller, contained abrown powder and tested positively for heroin.
When the lab report was received on or about February 2, 1977, appellant was arrested and charged with possession of heroin. The cocaine charges were not pursued.
On trial for the heroin charge, appellant admitted that he knowingly possessed the two packets of cocaine, but denied having the heroin in question.
The trial court denied appellant’s motion to suppress introduction of the brown powder, and it was admitted into evidence. A jury found the appellant guilty of possession of heroin, and fixed his punishment at two years imprisonment. Judgment was entered on the verdict, and appellant has appealed.
Appellant first argues that the trial court erred in denying his motion to suppress the brown powder, found to be. heroin, and in admitting into evidence the foil packet containing the brown substance.
The record shows that Officer Moomey seized three tin foil packets from appellant. Moomey field tested one of the packets and that showed a positive reaction for cocaine. At least one of the remaining packets was never opened by Moomey. Based on his field test of the one packet, the initial arrest report was filled out to the effect that “three (3) tinfoil packets of a white powdery substance believed to be cocaine” were seized from appellant. One of the packets subsequently turned out to contain brown powder which was heroin. Appellant claims he and his attorney were led to believe, from the information provided through discovery, that the officers had seized only white powder from appellant’s person; and that, according to the officers’ own reports, it had been tested and found to be cocaine. In response to appellant’s motion for discovery, the state provided copies of all documents it had including the chemist’s report. This report clearly indicated that only two packets contained white powder (cocaine), and the third contained brown powder found to be heroin. It seems inconceivable that appellant or his counsel could have been misled in any way because they were furnished with a copy of the lab report. Here the officers seized the heroin in question, but it was not identified as heroin until a chemical analysis was run on the substance at the lab by a chemist. Appellant has offered no authority for the proposition that officers must correctly identify drugs at the time they are seized. Certainly officers are not prevented from lodging a controlled substance offense if they are mistaken in. their initial identification of the substance. Officers on the street are not required to be expert chemists. Here the issue of whether the brown powder packet should have been admitted depends upon the credibility of the witnesses. In such circumstances, we defer to the superior position of the trial court. Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133 (1978). The appellant cites Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978), but that case is not in point and is clearly distinguishable from the one before us. Here all the materials and documents in the state’s possession, including the lab report, were provided to the appellant far in advance of trial. We hold that the trial court properly denied appellant’s motion to suppress.
II.
Appellant also argues in his brief that the trial court erred in denying his motion for a directed verdict of acquittal. This point, appellant concedes, is directly related to Point I in that the motion for a directed verdict was premised upon the suppression of the brown powder. Once the packet containing the brown powder is suppressed, appellant says, there is no substantial evidence upon which to sustain a conviction. Since we have held that the trial court properly admitted the evidence in question, no further discussion of Point II need be made.
III.
Appellant finally argues that the trial court erred in instructing the jury on presumption of innocence, reasonable doubt, and circumstantial evidence, and in refusing appellant’s offered instructions on these subjects.
Appellant’s abstract of the instruction proffered, and of the instructions given of which he complains, do not comply with the requirements of Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. Here only excerpts from certain instructions or proposed instructions are included in the briefs filed. We are at a disadvantage in attempting to follow the argument made by appellant in Point III. However, based upon the information before us, it appears that the trial court properly instructed the jury on the law relative to the charge. Where the subject matter of a requested instruction has been sufficiently covered by the instruction given, there is no error in the court’s refusal to give the requested instruction. Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979).
A trial court is not required to instruct the jury on the law in every possible manner even though a correct statement of it may be prepared by the defense counsel. Butler v. State, 261 Ark. 369, 549 S.W. 2d 65 (1977). The best we can tell from the abstract before us, the instructions in question given by the court differed somewhat from the wording of the instructions offered by appellant. But, be that as it may, the instructions used by the court were proper statements of the law. Instructions which are cumulative are not necessary.
Affirmed. | [
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George Rose Smith, Justice.
Gordon Bruce Touzin, of North Little Rock, was an employee of American Burger Systems, which had eating places in Pulaski and Hot Spring counties. At about 2:00 a.m. on January 6,1977, Touzin was killed when the company van he was driving at high speed struck a bridge abutment in Saline County and left the highway. The Workers’ Compensation Commission denied this claim for death benefits, finding that Touzin’s intoxication was a substantial cause of his death. The circuit court affirmed. The Court of Appeals reversed, holding that there was no substantial evidence to support the Commission’s finding of intoxication.
On the issue of intoxication the decisive evidence before the Commission was the report of a blood-alcohol test which showed that Touzin’s blood contained more than twice the percentage of alcohol that is presumed to show intoxication. Ark. Stat. Ann§ 75-1031.1 (A)(3)(Repl. 1979). The Court of Appeals held that the insurance carrier had not laid a sufficient foundation for the introduction of the test, by showing that it was taken in compliance with the statute and regulations. §§ 75-1045 and -1046. We granted certiorari to consider the interaction between the statute and the section of the Workers’ Compensation Law which provides that the Commission shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure. Ark. Stat. Ann. § 81-1327 (Repl. 1976).
In harmony with many decisions on the point, we view the evidence in the light most favorable to the Commission’s decision. Touzin left the company’s place of business in Malvern at about five o’clock on the afternoon preceding his death. There is no evidence of his activities between that time and about 12:45 a.m., when he rang the doorbell at the home of Mr. and Mrs. Neil Deimel, who had gone to bed. Mrs. Deimel was the manager of the company’s restaurant in Malvern. Mr. Deimel went to the door and explained that his wife, whom Touzin wanted to see, had retired. Touzin visited with Deimel and left at about 1:30. Deimel testified that there was no indication that Touzin had been drinking. His wife heard the conversation between Touzin and her husband and reached the same conclusion.
The fatal accident occurred on the highway about 20 miles from the Deimel home. Touzin’s vehicle struck the bridge abutment, traveled along the top of the concrete guard rail for some 63 feet, and hurtled through the air to a point beyond the fence bordering the right of way. State Trooper Bailey arrived within a few minutes. He testified that the engine of the vehicle was back in the passenger area and Touzin was lying dead in the rear part of the van. Officer Bailey smelled the odor of alcohol and saw one or two empty beer cans in the van. He wanted a blood-alcohol test and called the county medical examiner, Dr. Kirk, who came to the scene and helped remove the body. At the Saline Memorial Hospital Dr. Kirk withdrew a blood sample from the decedent’s heart and turned it over to a registered nurse who was present. She labeled the sample and later delivered it to Mrs. Rose, a medical technician with 12 years’ experience, who tested the blood sample. All blood tests for law enforcement agencies in Saline county were done at the hospital’s laboratory.
In testing the blood Mrs. Rose put it in a machine that used the enzymatic method, which had been evaluated and approved by the State Health Department in 1970. Mrs. Rose testified that the machine had been approved by that Department. She said that the machine is kept constantly in calibration, by calibrating it every day with controlled products. The chief medical technologist at the hospital also testified that the machine had been approved, but she explained that they did not get formal written approval until some four months later, when the issue was raised as a result of this case. The Commission specifically found that the machine had been certified and approved by the Arkansas State Department of Health.
Dr. Kirk testified that the blood-alcohol reading of .20 percent showed a state of intoxication, indicating the consumption of the equivalent of more than 10 cans of beer. Touzin’s widow, the claimant, testified that her husband drank “a few beers now and then.” She said she had never observed him under the influence of alcohol, but she admitted that when the police telephoned to inform her of the tragedy she asked if alcohol had been involved.
The Court of Appeals, for two reasons, was mistaken in holding that the insurance carrier had not laid a sufficient foundation for the introduction of the results of the blood-alcohol test.
First, the compensation law provides that the Commission is not bound by technical rules of evidence or procedure, but may “conduct the hearing in a manner as will best ascertain the rights of the parties.” § 81-1327, supra. Professor Larson discusses at length the cases construing such provisions in workers’ compensation statutes. He concludes that the factfinders are expected to adhere to basic rules of fair play, such as recognizing the right of cross examination and the necessity of having all the evidence in the record. On the other hand, a compensation commission undoubtedly has expertise much superior to that of a jury in the weighing of testmony and should therefore be left to determine the probative value of hearsay testimony and other proof that might not be admissible in a court of law. Larson, Workmen’s Compensation Law, §§ 79.00 and 79.80 — 79.84 (1976). The admissibility of the blood-alcohol test falls in the latter category.
Here the Commission, within the leeway conferred by the compensation law, certainly conducted the hearing in such a manner as to best ascertain the rights of the parties. Only four persons had any part in the blood-alcohol test: Officer Bailey, who ordered it, a licensed physician, a registered nurse, and an experienced technologist whose qualifications were shown. All four testified and were cross examined. The machine had been approved and was constantly kept in proper calibration. The Commission was fully justified in finding that the test results had probative value.
Second, the testimony would have been admissible even under the more strict rules that prevail in a court of law. The statutes regulating blood-alcohol tests are primarily intended for criminal cases, but they are pertinent when such a test is used in civil litigation. Newton v. Clark, 266 Ark. 237, 582 S.W. 2d 955 (1979). Even in criminal cases, however, substantial compliance with the statute and with the Health Department rules is all that is demanded. Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975). That degree of compliance was shown in this case.
The Court of Appeals in effect required an affirmative showing of the strictest possible compliance, by emphasizing various negative aspects of the record: The absence of proof that Mrs. Rose had been certified by the Department, or that Officer Bailey had initialed the sample, or that Dr. Kirk had drawn the required amount of blood or taken precautions against its dilution with “pleural or pericardial fluids.” Those details are for the most part not in the statute but in the Department of Health regulation.
Judicial notice may be taken of that regulation, but the proper procedure is for the party relying on such judicial notice to aid the court or administrative law judge by calling attention to the regulation. Turnage v. Gibson, 211 Ark. 268, 200 S.W. 2d 92 (1947); Uniform Evidence Rule 201 (d), Ark. Stat. Ann. § 28-1001 (Repl. 1979). Here there was no reference to the regulation during the taking of the testimony; it first appears in a brief filed after the hearing. And even then the deficiencies specified by the Court of Appeals were not mentioned by counsel. It would have been a simple matter, while the witnesses were on the stand, for opposing counsel to ask about each of the deficiencies, had they been thought material. As we have said in a similar situation: “If counsel thought that no proper foundation had been laid, the point should have been brought specifically to the court’s attention. Had that course been followed the omission now complained of might readily have been supplied in the trial court.” Conway v. Hudspeth, 229 Ark. 735, 318 S.W. 2d 137 (1958). We find ample substantial evidence to support the Commission’s decision.
Reversed. | [
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George Rose Smith, Justice.
In this eminent domain proceeding the appellant is condemning a right-of-way for Interstate 40 across the appellees’ 300-acre farm, effectively cutting it in two. The jury fixed the landowners’ compensation at $20,000. The only argument for reversal is the Commission’s contention that there is no substantial evidence to sustain the landowners’ claim for severance damages, which necessarily made up the greater part of the jury’s verdict.
The controversy narrows down to the adequacy of an underpass which the condemnor constructed for the landowners’ cattle to use in traveling from one side of the divided highway to the other. There are pastures on both sides. It is an undisputed fact that in the landowners ’ cattle-raising operation the animals must be transferred from one pasture to the other several times a year. If the cattle can be induced to use the underpass, then the severance damages will fall far short of the amount of the verdict. But if the landowners must load their livestock in trucks and transport them to an overpass half a mile away, then the verdict is not excessive.
AVe must uphold the verdict. The landowners requested an underpass ten feet high and ten feet wide, but the highway department engineers merely enlarged a proposed concrete drainage culvert to dimensions of five feet by five feet. This tunnel is 165 feet long and according to the proof is decidedly dark throughout much of its length. AVitnesses for the landowners observed snakes and mud in the tunnel. Freyaldenhoven himself, an experienced cattle raiser, testified that his livestock refused to enter the underpass, which had been completed before the trial. He roped a gentle cow and attempted to pull her through the tunnel, but the animal balked. The jury was shown a photograph depicting that unsuccessful effort. Another cattleman, the witness Grisswood, testified that in his opinion it. would not be possible to force cattle to use the underpass. Two real estate appraisers also expressed that opinion.
The highway department countered that testimony with the opinions of two other real estate appraisers •who thought that the underpass would serve its intended purpose. The department also offered the testimony of a cattle raiser who had a similar tunnel on his property in Clark county. He testified that his cattle had readily learned to use the underpass, though the jury may have doubted his further statement that he had a 1,200-pound work horse that customarily went through the tunnel “even though he had to squat just a little.” From what we have said it is evident that the decisive issue was that of weighing the conflicting testimony of experienced witnesses, all of whom were worthy of belief. IIpon such an issue the verdict is conclusive.
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J. Fred Jones, Justice.
This is an appeal by Shanon D. Bridges and a cross-appeal by Sam Sexton, Jr. from a decree of the Sebastian County Chancery Court in -which a joint and several deficiency judgment was awarded in favor of United Savings Association in a mortgage foreclosure against Bridges and Sexton. Bridges satisfied the judgment and was awarded judgment over against Sexton on a cross-complaint. The facts of record appear as follows:
On October 1, 1964, Bridges and a Mr. "Wilson, together with their wives, borrowed $12,600.00 from United Savings Association of Fort Smith. The loan was evidenced by a promissory note bearing interest at six per cent and payable in equal monthly installments of $81.19 each. The note was secured by a mortgage on a new house and lot with an appraised value of $14,-000.00. Bridges and Wilson placed $1,400.00 of the amount borrowed into savings accounts with United and pledged these accounts to United as collateral security for the loan until such time as the principal loan balance should be reduced to $10,500.00. This collateral secur ity enabled Bridges and Wilson to borrow 90% of the appraised value of the house and lo.t rather than the customary 80% of appraised value.
On December 25, 1964, Sam Sexton, Jr. signed an offer to purchase the property for a purchase price of $12,900.00; $300.00 to be paid in cash and the loan to be assumed for the balance of $12,600.00. On January 8, 1965, Sam Sexton, Jr. did purchase the property from Bridges and Wilson. He paid $300.00 in cash and took title by warranty deed containing the following provisions :
“This conveyance made subject to a Mortgage in favor of United Savings Association of Fort Smith, Arkansas as recorded in Record Book 83, Page 519, filed October 9, 1964, for an original sum of $12,600.00, which there is an unpaid balance of $12,563.53, which the grantee herein assumes and agrees to pay.”
Also on January 8, 1965, Sexton signed a separate “assumption of indebtedness” form, agreeing to make the payments on the mortgage indebtedness to United. After a few months Sexton defaulted in the payments to United resulting in the foreclosure action against Bridges, Wilson and Sexton. Bridges cross-complained seeking judgment over against Sexton for any judgment which United might recover against him and Sexton cross-complained against Bridges alleging that the sale to him was induced by fraud and that the collateral pledge should be applied first to any deficiency.
Wilson assigned his interest in the savings accounts to Bridges and the chancellor rendered a decree of foreclosure in favor of United for the full amount of the indebtedness and decreed that the real property be first sold and the proceeds applied on payment of the mortgage indebtedness; that the savings accounts pledged as security be next applied on the mortgage indebtedness with joint and several judgment against Bridges and Sexton for any deficiency. The chancellor also decreed judgment over in favor of Bridges against Sexton for any amount Bridges should be required to pay in excess of the proceeds from the sale of the real property and after application of the savings accounts under the collateral pledge.
Bridges purchased the property at foreclosure sale for $11,000.00 and after crediting this amount, together with the pledged savings accounts, to the mortgage indebtedness, attorney’s fee and court costs, a deficiency judgment was decreed against Bridges and Sexton in the amount of $2,078.41. The final decree for deficiency judgment then recites:
“It further appearing to the court that the defendants, Shanon I). Bridges and Helen L. Bridges, have paid in full the above set out deficiency amount of $2,078.41 and are entitled to a judgment over against the defendant, Sam Sexton, Jr., for said amount, all in accordance with the foreclosure decree heretofore filed herein.
IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED that defendants, Shanon D. Bridges and Helen L. Bridges, do have and recover of and from the defendant, Sam Sexton, Jr., the sum of $2,078.41, with interest thereon at the rate of 6% per annum from December 27, 1967.”
On direct appeal Bridges relies on the following points for reversal:
“The chancellor erred as a matter of law in failing to grant Shanon D. Bridges, et ux, judgment against Sam Sexton, Jr., for the amount of the Bridges savings deposits utilized to satisfy the obligation assumed by Mr. Sexton.
The findings of fact of the chancellor are sustained by the overwhelming weight of the evidence. ’ ’
On cross-appeal Sexton relies on the following points:
“The device employed by Bridges and United Savings to accomplish the sale of the property constituted ‘constructive fraud.’
The remedy in a fraud action of this type is lo off-set damages against a claim for purchase price.”
Wo are forced to the conclusion that the appellant is correct in his contention. There were actually two separate transactions involved in this case. The first transaction was between the Bridges and the Wilsons on one side and the United Savings on the other. The second transaction was between the Bridges and the Wilsons on one side and Sexton on.the other. In the first transaction the Bridges and Wilsons gave a mortgage on their real property to secure the payment of a loan made to them by United. In addition to the mortgage on their real estate, they pledged their savings accounts to United as additional security for the loan.
In the second transaction Sexton purchased the mortgaged property from the Bridges and the Wilsons for the sum of $12,900.00. He paid $300.00 in cash and agreed to pay the balance of $12,600.00 by assumption of the mortgage indebtedness, payable in monthly installments of $81.19 each. Sexton only purchased the real property from the Bridges and the Wilsons. He did not purchase, nor does he claim any interest in, the savings accounts which the Bridges and the Wilsons pledged as additional security for their loan. Sexton gave no collateral security when he purchased the property, but only paid $300.00 cash and purchased the property subject to the real estate mortgage indebtedness of $12,600.00 which lie agreed to pay. Assuming that the Bridges and the Wilsons had mortgaged their automobiles and furniture and their children had pledged their separate savings accounts as collateral security for their loan, such additional mortgages and pledges would not secure Sexton against a deficiency judgment on his own obligation under his separate contract, especially in the absence of fraud in its inducement.
We now come to Sexton’s cross-appeal. We are of the opinion that the chancellor’s finding, that the sale of the property to Sexton was not induced by fraud, is not against the preponderance of the evidence. It was candidly admitted by Bridges and United that the savings accounts in the amount of $1,400.00, pledged as collateral security by the Bridges and the Wilsons, came out of the $12,600.(10 they borrowed from United and that United never did part with the possession of $1,400.00 of this loan at all. The question naturally arises as to whether the Bridges and the Wilsons actually borrowed $12,600.00 for which the note and mortgage were given, or whether the loan was actually for $12,600.00 less the $1,400.00 retained by United and placed in savings accounts in the name of Bridges and Wilson as additional security, but which remained in the possession and undei the control of United at all times. Bridges and United contend that this procedure was followed for the benefit of a prospective purchaser of the mortgaged property, as well as for the benefit of the owner and original borrower. They contend that this procedure would enable the owner to sell the property with practically no down payment and with a built-in loan already financed. Sexton argues, with convincing logic, that this procedure is a built-in device which .-enables the original mortgagor owner to sell property to an unsuspecting purchaser for its full market value, while leaving the impression with the purchaser that he is purchasing the property at a distress sale for a mere pittance of its actual value, for only the balance due on the original purchase price, and for much less than was originally paid for the property.
Assuming that either, or both, arguments are cor-a’ect, the question remains as to whether fraud was practiced on Sexton in this case. The question of usury is not raised in this case nor does Sexton seek cancellation of his contract because of fraud. The question is whether Sexton is somehow entitled to the benefit of Bridges’ collateral security because of constructive or legal fraud perpetrated on Sexton. In Arkansas Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161, 229 S.W. 2d 133, we said:
“... [Constructive fraud ... has been stated to consist of certain elements. In Levinson v. Treadway, 190 Ark. 201, 78 S.W. 2d 59, Mr. Justice Mehaffy said:
‘Persons, in order to be guilty of legal or constructive fraud, or, as it is sometimes called, fraud at law, do not necessarily have to be guilty of moral wrong, but a constructive fraud is a breach of either legal or equitable duty which, irrespective of moral guilt of the fraud feasor, the law declares fraudulent, because of its tendency to deceive others, to violate public or private confidence, or injure public interests. Neither actual dishonesty of purpose nor intent to deceive, is an essential element of constructive fraud. 26 C.J. 1016 and cases cited.’
Bouvier’s Law Dictionary says: ‘Legal or constructive fraud includes such contracts or acts as, though not originating in any actual evil design or contrivance to perpetrate a fraud, yet by their tendency to deceive or mislead others, or to violate private or public confidence, are prohibited by law.’
In Hildebrand v. Graves, 169 Ark. 210, 275 S.W. 524, Mr. Justice Hart pointed out that in determining the question of fraud, all the surrounding circumstances are to be considered.” •
In 37 C.J.S., Fraud, §§ 15 and 16, p. 242, is found the following:
“The concealment of a material fact may be equivalent to a false representation and be sufficient upon which to predicate a charge of fraud; (citing National Life & Accident Ins. Co. v. Hitt, 194 Ark. 691, 109 S.W. 2d 426) however, mere silence is not representation and in the absence of a duty to speak... silence as to a material fact does not of itself constitute fraud, although one who, instead of merely remaining silent, misrepresents or takes steps to conceal material facts, or who says or does something to avert inquiry, is guilty of fraudulent concealment...
Where the parties deal at arm’s length, there is no duty of disclosure where the facts are equally within the means of knowledge of both parties. If a fact is peculiarly within the knowledge of one party and of such a nature that the other party is justified in assuming its nonexistence, there is a duty of disclosure.”
In National Life, & Accident Ins. Co. v. Hitt, 194 Ark. 691, 109 S.W. 2d 426, is found the following:
“As was said in Sanders v. Berry, 139 Ark. 447, 214 S.W. 58, 'The law requires good faith in every business transaction, and does not allow one party to intentionally deceive another by making false representations or by concealment.’ In Lone Rock Bank v. Pipkin, 169 Ark. 491, 276 S.W. 588, we said: 'If the means of information as to the matters represented is equally accessible to both parties, they will be presumed to have informed themselves; and, if thejr have not done so, they must abide the consequences of their own carelessness.”
In Lane v. Rachel, 239 Ark. 400, 389 S.W. 2d 621, is found the following:
“It is well settled tliat representations are construed to be fraudulent when made by one who either knows the assurances to be false or else not knowing the verity asserts them to be true. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S.W. 2d 490; Maurice v. Chaffin, 219 Ark. 273, 241 S.W. 2d 257. In C.J.S., Fraud, § 2, p. 211, constructive fraud is succinctly defined as ‘breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others * * * Neither actual dishonesty of purpose, nor intent to deceive is an essential element of constructive fraud.’ ”
Fraud is never presumed but must be affirmatively proven by the one who alleges it and by testimony which is clear and convincing. Green v. Bush, 203 Ark. 883, 159 S.W. 2d 458; Ellis v. Ellis, 220 Ark. 636, 246 S.W. 2d 302; First National Bank v. Peoples National Bank, 97 Ark. 15, 132 S.W. 1008; Sledge and Norfleet Co. v. Mann, 193 Ark. 884, 103 S.W. 2d 630.
The chancellor found that the circumstances surrounding the loan transactions in this case did not amount to constructive or legal fraud. We cannot say that his findings are against the preponderance of the evidence. There is nothing in the record before us that would indicate that the property was over appraised at ‡14,000.00 when the original loan was made, and there is no evidence that anyone even suggested to Sexton that the property was worth more than that amount or more than the amount he agreed to pay for it. There is no contention here that the property was over appraised; the contention of Sexton is that it was over financed. The property was financed at 90% of its appraised value rather than 80% and this could have been to Sexton’s advantage as well as to his detriment.
Sexton was chairman of the board of a loan association, and was generally familiar with loan transac tions in the Fort Smith area. He knew from his personal knowledge and experience that the standard real estate loan did not exceed 80% of the appraised value of the property. The evidence clearly suggests that Sexton thought he was purchasing at least a 20% of $1,400.00 equity value in a new house and lot for a cash payment of $300.00, when as a matter of fact he only purchased a 10% or $700.00 equity value for $300.00. The record is clear that Sexton acted on his own knowledge and experience, rather than on representations, statements or inducements made by United or Bridges, or their agent.
The decree of the chancellor is reversed and this cause is remanded for the entry of a decree in favor of Bridges against Sexton for the full balance due on Sexton’s obligation after crediting the amount received for the property at the foreclosure sale.
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Lyle Brown, Justice.
Floyd Bailey, Jr. was convicted of illegally possessing narcotics. Court-appointed counsel was relieved after the trial and appellant, Bailey, went to the penitentiary. The time ordinarily allowed for appeal expired; however, the trial court granted Bailey a belated appeal because he did not have the assistance of counsel to represent him and timely file the appeal. Bailey challenges the validity of a search of his apartment and of his person, both of which revealed the presence of marijuana. The pertinent facts will be related under our discus ¿ion of Bailey’s two points for reversal.
POINT I. The court erred in admitting evidence obtained by affidavit and search ivarrant issued upon insufficient facts and information in violation of the constitutional rights of the defendant. The two arguments under this point are (1) that the affidavit for search warrant was signed by Officers Terry and Gibson, who did not appear before the magistrate; and (2) that the affidavit provides only the unsupported conclusions of the affiants. In other words, appellant says the affidavit does not present the underlying facts or circumstances so that the examining magistrate could have made an independent determination as to the existence of probable cause. It is therefore argued that evidence obtained at defendant’s home was inadmissible.
With respect to the execution of the affidavit for search warrant, here is what the record reveals: Officers Terry and Gibson obtained from a source not disclosed a printed form used by the Municipal Court of Little Bock and titled “Affidavit for Search Warrant.” The body of the affidavit is as follows: “I, John Terry and W. D. Gibson, LBPD, do solemnly swear that illegal narcotics, marijuana, and drugs, are concealed in the premises occupied by Floyd “Spike” Bailey at 1003 High Street, Apt. 14, LB., in the State and County aforesaid, and pray a warrant from said court to search said premises.” The two officers signed the instrument. The jurat to the affidavit reads: “Sworn to and subscribed before this 27 day of May, 1966. ________________, Clerk.” The jurat is not executed by any official. The Clerk of the Municipal Court, Criminal Division, testified that he took no part in the execution of the affidavit.
We examine the search warrant issued on the basis of the proposed affidavit. The warrant recites that “complaint has been made, on oath, before the clerk or judge of the Municipal Court of Little Bock, by John Terry and W. D. Gibson, LBPD, that certain illegal narcotics, marijuana, and drugs are concealed on the premises occupied by Floyd “Spike” Bailey at 1003 High Street, Little Bock, and whereas, being satisfied that there is reasonable ground for such suspicion, you are therefore hereby commanded to search the said place above mentioned...” It will be noted that the search warrant issued by Judge Sullivan stated that it was issued on information supplied by Officers Terry and Gibson. It was undisputed that these officers did not appear before the magistrate. Officer Baer said he obtained the search warrant for Officers Gibson and Terry. There is but one conclusion to be reached from the testimony. Officers Terry and Gibson executed a form of affidavit for a search warrant and asked Detective Baer to present the document to Judge Sullivan and obtain a search warrant.
The affidavit for a search warrant is void on its face. The Constitution of Arkansas, Art. 2, § 15, requires the search warrant to be supported by oath or affirmation. The affidavit shows that the officers who executed tlie document did not appear before any officer authorized to take such an acknowledgment. The proof shows that the subscribing officers sent a third party, Detective Baer, to obtain the warrant. The purported affidavit, which is the sole evidence of probable cause afforded the magistrate, is defective in that it states a mere conclusion. A magistrate is not permitted to accept a complainant’s conclusions without question. Walton and Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462 (1968); Giordenello v. United States, 357 U.S. 480 (1958). Mr. Justice White’s concurring opinion in Spinelli v. United States, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), analyzes Giordenello and six other cases on the question of prerequisites for issuance of a search warrant. If an officer swears there is contraband at a particular address there are three possibilities for the basis of his conclusion:
(1) The officer has seen the illegal object or objects. In that event his affidavit should assert personal observation; or,
(2) The officer “observed or perceived facts from which the presence of the equipment may reasonably be inferred. In that event the affidavit must recite the perceived facts so that the magistrate may judge the existence of probable cause”; or,
(3) The officer has obtained the information from someone else, for example, an informer. In that event the warrant should not issue unless good cause is shown in the affidavit (or supporting testimony) for crediting that hearsay.
There are a multitude of cases from the United States Supreme Court, in addition to those cited by Mr. Justice White, which detail the manner in which the requirements under alternatives (2) and (3) must be met.
POINT II. The court erred in admitting in evidence the marijuana obtained from the defendant’s person. The officers first went to Bailey’s apartment to conduct a search. Bailey was not at home and they decided to find him before searching. One of the officers knew that Bailey might be found in the vicinity of Wright Avenue and High Street. He was there located and the officers took him into custody for the purpose of taking him to the apartment. They had no warrant for his arrest, nor did they have a search warrant for his person. Prior to placing Bailey in the patrol car the officers searched him, assertedly for weapons. Officer Hunter took the suspect’s billfold from his pocket and handed it to Officer Terry. In the course of the wallet being passed between the officers a tightly rolled cigarette dropped therefrom. The billfold was then inspected and three small brown envelopes were found. The cigarette and the envelopes contained marijuana.
Ark. Stat. Ann. § 43-403 (Repl. 1964) authorizes an arrest by an officer in obedience to a warrant of arrest, and without a warrant if a public offense is committed in his presence, or if the officer has reasonable grounds for believing that the person has committed a felony. We view the search in light of the particular purpose for which the officers testified they made it. First, they did not say they arrested the defendant because they had reasonable grounds to believe he had committed a felony. Specifically, the officers explained that they wanted to take him back with them to the apartment, ostensibly to have him present when the search was made. Officer Hunter explained the purpose of the search thusly:
Q. Why did you shake him down there? '
A. Well, I knew the man and I knew that he was subject to carrying a weapon and, inasmuch as we would be going to carry him back to his apartment, well, I searched him.
Under the recited circumstances we conclude the defendant was not legally under arrest; therefore the search was not incidental to a lawful arrest. However, we recognize there are circumstances under which a suspect may he checked for weapons. If we here concede, without deciding, that the officers had a right under the circumstances to check Bailey (as a suspected felon) for weapons, yet we must ascertain whether that search was “reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.” Sibron v. New York, 392 U.S. 40 (1968). On the same date Sibron was handed down, the Court decided another search for weapons case, the latter being Terry v. Ohio, 392 U.S. 1 (1968). The searches of Sibron and Terry were compared in Sibron and the Court, had this to say:
The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron’s pocket and took from him envelopes of heroin... Such a search violates the guarantee of the Fourth amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.
As in Sibron the searching officer in the case at bar thrust his hand in Bailey’s pocket and took the pocketbook. That item could conceivably have no reasonable relation to the object of the search, that being for a weapon.
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G-eoroe Rose Smith, Justice.
This is a condemnation ease by winch the highway department is taking, as a right-of-way and interchange for Interstate 40, a 9.63 acre tract in Conway, owned by Circuit Judge Roberts and his wife. No severance damages are involved, the taking being total. Four expert witnesses and Judge Roberts himself testified. For the landowners, the witness Baines valued the land at $108,000, the witness Pearce at $105,750, and Judge Roberts at $129,750. For the commission the witness Adams valued the land at $27,000, and the witness Lieblong at $24,200. The verdict urns for $125,000. For reversal the commission questions the admissibility and substantiality of the landowners’ evidence.
Borne description of the property and its location is essential lo an understanding of the case. On the date of the taking, June 6, 1966, the Roberts tract, approximately square, lay about a mile north of the Conway central business district. The tract was bounded on the south by IT. S. Highway 65. At the back of the property, away from the highway, it sloped upward steeply to a ridge 60 feet higher than the front of the tract. The improvements consisted of a four-room house, a barn, and three stock ponds, but no witness attributed any value to the improvements in arriving at an estimate of just compensation for the land.
H. S. Highways 64 and 65 are of critical importance throughout all the testimony. The two routes run northward together from downtown Conway to a point about a quarter of a mile southwest of the Roberts tract. At that point there is a “ Y” by which No. 65 diverges in an easterly direction and No. 64 diverges in a westerly direction.
At the beginning of the trial the landowners were allowed to introduce two composite aerial photographs showing''tile land in its setting with relation to the city and the two highways. Counsel for the commission had no objection to the photographs, but they did object, unsuccessfully, to the introduction of a plastic overlay for each picture, showing the proposed location of Interstate 40 after its construction. The overlays were readily separable from the photographs and should have been excluded. They had no possible relevancy to the value of the land on the date of the taking and could only divert the jury’s attention to the higher values that might be expected to flow from the construction of the interstate route. Needless to say, one who offers evidence has the burden of showing its admissibility. Wigmore, Evidence, § 18 (3d ed., 1940). Even in their briefs in this court counsel for the landowners have offered no sound basis for the introduction of the overlays, their argument, being in effect that the evidence was not- prejudicial. The error, however, must be considered to have been prejudicial unless the absence of prejudice is shown. Equitable Discount Corp. v. Trotter, 223 Ark. 270, 344 S.W. 2d 334 (1961). In view of the size of the award — which was the only issue for flic jury — it certainly cannot be said that the absence of prejudice affirmatively appears.
The main issue, however, is the substantiality of the landowners’ testimony. That issue is singularly uncomplicated in this case, because all the witnesses used only one method of evaluation — that of comparable sales —in reaching their conclusions. Nichols points out that the four factors generally considered in the determination of market value are sales, cost, income, and use. Nichols, Eminent Domain, § 12.1 (3d ed., 1962). We have considered all four factors in cases too numerous to mention. Comparable sales, cost (or reproduction cost) less depreciation, and capitalization of income are methods of evaluation recognized universally by the authorities. See especially Sill Corp. v. United States, 10th Cir., 343 F. 2d 411 (1965). The highest and best use of the properly is an added element of value that in many instances is not inherent in the method of evaluation being used and that may therefore be considered along with it.
In the. case at bar the improvements on the -tract were of such relatively slight value and presumably were rented for so little that no witness used either the method of cost less depreciation or the method of capitalization of income. Barnes, testifying for the landowners, mentioned a number of nebulous considerations such as the proposed develo]uncut of the Arkansas River, the rate of population increase, and similar matters that obviously would be reflected in comparable sales and in the year-lo-vear tendency toward rising prices that was’ ''also brought out by the testimony. Neither Barnes nor any other witness assigned definite weight to such vague considera! ions.
Thus the substantiality of the landowners’ evidence rests, when objectively considered, on the comparability of the sales upon which they relied for their conclusions. In the study of that vital issue two points must be kept in mind:
First, a sale must be comparable even to be admissible in evidence. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30 (1958). We described comparability in this paragraph in Ark. State Highway Commn. v. Wifkowski, 236 Ark. 66, 364 S.W. 2d 309 (1963):
There can be no fixed definition of similarity or comparability. Similarity does not mean identical, however it. does require some reasonable re semblance. See Nichols, Eminent Domain, Vol. 5 § 21.31, p. 439. There are certain criteria of similarity-which can be utilized to establish a reasonable resemblance. Important factors of similarity to be considered are location, size and sale price; conditions surrounding the sale of the property, such as the date and character of the sale; business and residential advantages or disadvantages; unimproved, improved or developed land. None or any combination of these criteria were sufficiently shown, “connected up” or “tied in” as between the. Caldwell and Witkowski tracts to establish a reasonable resemblance. In the case at bar the jury could only speculate in applying the evidence in question to the market value of the subject property.
Secondly, although an expert witness may state his opinion on direct examination without first detailing the. facts on which it is based, his testimony is not substantial evidence if he is unable to give a sound and reasonable factual basis for his conclusions. Ark. State Highway Commn. v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963). With those points in mind wc turn to the evidence in the case at bar.
Barnes, the first witness called, gave the most comprehensive testimony for the landowners. He described the land as having a 660-foot frontage on Highway 65 and about an equal depth. The tract was zoned for commercial use to a depth of 200 feet from the highway with the rest being zoned for residential use. In valuing the entire tract at $108,000, Barnes valued the commercial strip at $100 a front foot, making a total of $66,000, and the rest at 15 cents a square foot, or $42,000 in round numbers. Converting his figures to acreage, Barnes stated that he valued the commercial strip at $21,780 an acre and the rest at $6,534 an acre.
On cross examination Barnes explained that he had checked about 250 sales and selected those that he thought be comparable to the Roberts tract. It ap pears from ilie record that five of the sales were outlined on a blackboard and referred to repeatedly by the landowners’ expert witnesses. Those five sales, as nearly as can be determined from a study of the record, were as follows:
Identification of Sale Price per Acre Price per Front Foot
Covington to Bell $ 8,000 $ 78.50
Bailey to Lynch 16,370 90.00
Lieblong to Clawson 7,000 83.33
Tyler to Leonard 13,333 130.00
AVatering to Starkey 14,800 93.50
An analysis of the record demonstrates beyond question that the sales relied upon did not involve properties comparable to the Roberts land. The first sale — the only one involving laud on Highway 65 — must be laid aside quickly. The testimony shows without contradiction that the purchaser, Bell, bought it as a speculation in the expectation that the interstate highway would be located nearby. That speculation proved to be correct. A Holiday Inn was eventually built on the parcel. The public, however, cannot be compelled to pay prices based either upon speculation or upon a value that accrues by reason of the improvement for which the land is being taken. Ark. State Highway Commn. v. Watkins, 229 Ark. 27, 313, S.W. 2d 86 (1958); Ark. State Highway Commn. v. Griffin, 241 Ark. 1038, 411 S.W. 2d 495 (1967).
The other four sales may be considered together. All four parcels were on Highway 64 — not Highway 65— at or near the i£Y” They were in a small area that had already been developed to commercial use. Bacli tract, at the time of its sale, was the site of a going business occupying a building whose value had to be estimated and subtracted from the purchase price in the determination of the value of the land alone. The traffic count on Highway 64 was about double that on 65.
By contrast, the Roberts property fronted on Highway 65. That area had not been developed commercially. Quite the opposite, there is no contradiction of the., commission’s testimony that only 18% of the property in that vicinity had been developed commercially; that the other 82% was either vacant or devoted to residential use only;' and that there had never been “any business out 65 that didn’t go broke or quit.”
Barnes made an adroit effort to harmonize the discordant facts by saying that owing to the higher traffic count the other tracts would be more valuable for a “traffic oriented commercial use,” but the Roberts property would bo better for a commercial use that “wanted to avoid traffic congestion.” The inherent contradiction is too plain to be overlooked. Barnes used the “traffic oriented” parcels to establish a front foot value, which he then applied to the Roberts tract. But obviously front footage on the highway derives its primary importance from the tract’s attractiveness to businesses that áre dependent upon the heavy flow of traffic. Comparability at once disappears when that essential similarity is wanting. Moreover, in arriving at his front-foot figures Barnes entirely disregarded the depth of the property. For instance, the- Lieblong property was described as being 600 feet deep, but Barnes made no allowance for that fact in comparing it to the commercially zoned strip of the Roberts land, only 200 feet deep. It is manifest that on a front-foot basis a lot 600 feet deep is not fairly comparable to one 200 feet deep.
Barnes valued the back part of the Roberts tract, as a potential site for apartment houses and other multifamily uses. His testimony was, to say the least, conjectural. There was no showing of any active demand .for- apartment houses in the neighborhood. None had been built, nor had any property been bought or sold for that purpose. There were such structures in other parts of Conway, but the witness did not have definite information about them. In fact, lie ultimately admitted on cross examination that lie did not have “a single sale of property in Conway comparable to [the Roberts tract] which was bought for multi-housing units.” Since he was using only the comparable sale method of evaluating the property, there was in reality no basis for his,.conclusions. His entire testimony should have been stricken on motion of the highway commission’s counsel., "Wb need not detail the testimony of the landowners’ other expert witness, Pearce. He worked with Barnes in the preparation of his testimony and really added nothing to what had already been said.
Judge Roberts was the other witness for himself and his wife. He admitted witli candor that 'lie paid only $1,750 for the ten acres in 1946 and that at the time of the taking it was assessed for taxation at $1,500 (which, however, would ostensibly be only 20% of its market value. Ark. Stat. Ann. § 84-476 [Repl. 1960]). The judge differed with his expert witnesses by assigning a value of $125 a front foot to the commercial part of his land, but he stated no basis for that figure — other than mentioning a sale somewhere east of Conway which he himself said was not comparable.
IVe find no substantial evidence in the record to support the amount of the verdict or anything approaching that figure. At the same time, the testimony of tln> commission’s expert witnesses is not altogether convincing. It appears that in earlier condemnation cases their testimony with respect to the same subject matter was more favorable to the landowner than that given in the case at bar. As in Ark. State Highway Commn. v. Darr, 246 Ark. 203, 437 S.W. 2d 463 (1969), we cannot with confidence arrive at a minimum sum which the landowners should in any event recover. The .judgment must therefore be reversed and the cause remanded for further proceedings consistent with this opinion.
Fooukivtan, J., concurs.
John A. Fogleman, Justice.
I agree that this case must be reversed for the reasons stated in the majority opinion. However, it seems to me that the flaw in the testimony of appellees and their witnesses consists of a failure of the witnesses to satisfactorily explain the extent of the effect of various factors upon market value of the land in question rather than in considering them in arriving at an opinion.
In considering this ease, we do not have a question as to the admissibility of direct evidence of sales of other lands. Instead, we are considering the opinion testimony of experts based, at least substantially, upon such sales. Since the majority opinion states that the testimony of appellees and their witnesses should have been stricken on motion of appellant (a point not relied upon here), it seems to me to imply that upon retrial their opinions cannot be substantial evidence. It is my opinion that they would have been substantial evidence if the witnesses had given a satisfactory explanation of the effect, of the various factors considered by them and of the adjustments made in evaluation of the sales considered by them as pertinent to market value.
Nichols’ “The Law of Eminent Domain” is perhaps the leading authority on this subject. In treating the determination of market value, this authority states that the following are to be considered, among other things (4 Nichols on Eminent Domain 84, § 12.31 [2]) :
(a) A view of the premises and their surroundings.
(b) A description of the physical characteristics of the property and its situation in relation to the points of importance in the neighborhood.
(c) The price at which the land was bought, if sufficiently recent to throw light on present value.
(d) The price at which similar neighboring land has sold at or about the time of the taking. Tliis test, so conclusive in the case of articles of personal property commonly bought and sold, is so much less valuable in the case of real estate that in some jurisdictions it is rejected altogether, but it is generally considered that it should be used for what it is worth.
(e) The opinion of competent experts.
(f) A consideration of the uses for which the land is adapted and for which it is available.
It is to he noted that sales of neighboring lands and opinions of experts are two separate and distinct factors. We have said that the determination of the value of lands taken by eminent domain is largely a matter of the opinion of the witnesses who are familiar with the lands and the use for which they are best suited, having such weight only as the jury may be convinced they should have by the reasons given for the respective opinions. Southwestern Bell Telephone Co. v. Biddle, 186 Ark. 294, 54 S.W. 2d 57.
This does not mean that opinions of experts without a reasonable basis can be considered See 5 Nichols on Eminent Domain 240, § 18.42 [1]; Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S.W. 2d 173: Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W. 2d 436. Still, the opinion of an expert as to market value need not be based upon comparable sales alone. 5 Nichols on Eminent Domain 245, § 18.42 [1]. The question of who are competent to express opinions on the value of lands taken must be largely left to the discretion of the trial court. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S.W. 440. The inquiry is not confined to testimony relating to sales of similar property for like purposes, but may be determined from opinions of witnesses having knowledge of the subject and whose business or experience entitles their opinions to weight. Ft. Smith & Van Buren Bridge District v. Scott, supra. This rule was applied in the cited case in sustaining the admission of testimony by witnesses who had no knowledge of land sales or prices realized under like conditions for like purposes. Apparently these witnesses were “non-expert.”
An oven greater latitude is allowed expert witnesses. The difference in latitude is demonstrated by the rule which permits a witness whose qualifications and familiarity -with the subject are shown, to express an opinion, without first detailing the facts upon which his opinion is based as a non-expert witness would be required to do. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W. 2d 436. Arkansas State Highway Commission v. Dixon, 246 Ark. 756, 439 S.W. 2d 912. We have said that in considering testimony based on comparable sales reasonable latitude must be allowed in evaluating sales and adjusting or compensating for differences in similar lands. Arkansas Stake Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381; Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563.
In this connection, the following statement from Nichols’ text is pertinent (Vol. 5, p. 253, § 18.42 [1]):
“A distinction must also be drawn relative to the foundation which must be laid for such evidence based upon whether the comparable sales data is used as support for an expert’s opinion or as indedendent substantive evidence of value. Quite obviously, when evidence of the price for which similar property has been sold is offered as substantive proof of the value of the property under consideration, a foundation should be laid showing that the other property is sufficiently near that in question and that it is sufficiently like the property in question as to character, situation, usability and improvements to make it clear that the tracts are comparable in value. However, where evidence of sales of similar property is offered not as substantive proof of value, but merely in support of, and as background for, the opinion of an expert as to the value of the land in question, the requirement of such foundation is not so strict.
Testimony of an expert can be considered though ho did not base his opinion entirely on comparable transactions.
The supporting data testified to by the opinion witness must be relevant and competent although the use of hearsay, in and of itself, is not sufficient to condemn the competency of the opinion especially where the witness shows that his own knowledge and experience require agreement with such hearsay evidence. The fact that certain elements are not independently admissible in evidence, however, does not bar their consideration by an expert witness in reaching an opinion. Thus, it has been said:
‘An integral part of an expert’s work is to obtain all possible information, data, detail and material which will aid him in arriving at an opinion. Much of the source material will be in and of itself inadmissible evidence but this fact does not preclude him from using it in arriving at an opinion. All of the factors he has gained are weighed and given-the sanction of his experience in his expressing an opinion. It is proper for the expert when called as a witness to detail the facts upon which his conclusion or opinion is based and this is true even though his opinion is based entirely on knowledge gained from inadmissible sources.’ ”
This principle was followed by us in holding that there was no error in refusing to strike the testimony of an expert when his knowledge of prices paid by the condemnor in the area entered into his determination of value. Arkansas State Highway Commission v. Kennedy, 234 Ark. 89, 350 S.W. 2d 526.
"With the more liberal approach required in considering the basis for the testimony of an expert witness, an examination of our authorities governing sales of other lands will demonstrate that the testimony of appellees and their witnesses would not have been subject to being stricken, if adequate explanations had been given. Perhaps the leading case in Arkansas on the admissibility of the value of other lands is St. Louis I. M. & S. R. Co. v. Theodore. Maxfield Co., 94 Ark. 135, 126 S.W. 83. There, it was held that testimony relative to the value of lands similar to that taken, and of lands not similar if accompanied with explanations sufficient to show the difference between market values of such lauds, is admissible by way of comparison to show the market value of the lands in question. This is the authority relied upon in City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30, cited in the majority opinion. In passing, it should be noted that this court in that case merely approved the ruling of the trial court in denying the condemnor the right to cross-examine condemnee’s value expert about a certain sale of lands he described as being so dissimilar as to preclude a comparison. We said that there was no error in the trial court’s holding that the condemnor must first develop a similarity between the properties before the question would be proper.
This court has also held that an objection to the introduction of evidence relative to the sale price of a one-acre tract purchased by appellant for a particular purpose because it was not similar in location or topography to the damaged lands was without merit. Sewer and Water Works Imp. Dist. No. 1 v. McClendon, 187 Ark. 510, 60 S.W. 2d 920. There we said that “sales of other lands in the same locality is a fair criterion to aid in establishing market value.” The contention that there was reversible error in admitting testimony by a landowner as to the value of his farm situated about seven miles from the lands involved was also rejected. "We said:
“ * * * There were similarities detailed by him between his tract and appellee’s land; so the testimony was admissible notwithstanding they were separated by a distance of seven miles. In these days of good roads and rapid means of transit, it cannot be said as a matter of law that the lands were in different localities. The description of the two tracts make the testimony’- of Everett admissible under the rule of evidence announced in the ease of St. Louis Iron Mountain & Southern Railway Company v. Maxfield, 94 Ark. 135, 126 S.W. 83, 26 L. R. A. (N.S.) 1111.”
The holdings in the cases cited above are not affected in any way by the opinion in Arkansas State Highway Commission v. Witkowski, 236 Ark. 66, 364 S.W. 2d 309. There the action of the trial court in permitting direct testimony as to a sale of property’- by a witness was found erroneous. The only evidence as to proximity was conjectural. There was no evidence to show a comparison or similarity’ between this property and the property’ of the condemnee.
In this case, appellant has not contended that either appellees or their witnesses are not qualified to testify. Each of them cleaily qualified to express an opinion. Witnesses who are properly qualified are in much better position to know the considerations which determine market value, i.e., influence prospective buyers and sellers, than most judges, either at the trial or appellate level. Yet they should be able to give some means of evaluating the effect of such factors on values of property about which they testify. They should also be able to measure to some degree the adjustments to be made in comparing sale prices of other lands because of differences in the properties involved. For example, the location of property’ on a different highway’ where traffic is greater should not render a sale thereof improper as a basis for an expert opinion when adjustment is made for the difference.
In evaluating’ tlie testimony of tlie witness Barnes, it must be remembered that he is not only an appraiser but a real estate counselor engaged in the business of making analyses with respect to demands and needs for real estate and advising a client with respect thereto. When asked whether he considered sales in the community and neighborhood comparable to this property, he stated that there were no sales comparable to this property. He added that he used sales that had been made and compared the factors that went to make up the value of that property with the factors which affected the value of the Roberts property. This is in keeping with rules governing such testimony. Yet I agree that the witness failed to adequately explain the effect of any particular factor. Specifically, he failed to adequately explain a front foot value for commercial property higher than that given for property which would seem to command a higher price. The differences pointed out in the majority opinion as to the four sales treated there together, unexplained, would render the basis insubstantial. I do not think then we can say, as a matter of law, that they could not be considered if an evaluation of similarities and differences is given. They could have a very real effect on prospective buyers and sellers of property like that of appellees. According to appellant’s witness Adams the first sale considered by him was the sale by Lieblong to Clawson, one of the sales held to be dissimilar in the majority opinion. Mr. Lieblong, appellant’s other value witness and the seller in that sale, also considered it. I cannot help asking whether the court is saying that the witnesses for neither party can consider this sale on retrial.
Furthermore, I do not think we can rule out the sale by Covington to Bell as speculative as a matter of law. Although Barnes answered a question as to whether the purchaser was speculating as to the location for a Holiday Inn site in the affirmative, he stated that Bell was ••hopeful that he would be located near enough to the interstate facility “to work something out” but did not feel that he paid any increment for the land on account of that speculation. Barnes also stated that the site was suitable for a Holiday Inn whether the interstate highway was built or not. That this sale should not be discarded as speculative is best demonstrated by its use by appellees’ expert witness Adams in considering the market value of the condemned property.
I cannot agree that the testimony as to the highest and best use of part of the property for multifamily housing is necessarily conjectural. Barnes investigated rental housing' in Conway and found an insufficiency of both single and multifamily units available. The zoning ordinances permitted this use of the property. Barnes did not think that other properties which could be used for that purpose were as well located with reference to community facilities, the Arkansas Children’s Colony or Hendrix College. The advantage of the view of the community from the high elevation was pointed out by the owners and by Barnes. Both Barnes and Pearce testified that this was its highest and best use. The fact that such developments have not been made in the immediate vicinity would go only to the weight to be given to the testimony. Someone always has to have the first such development in an area, but the fact that such development is the first does not .eliminate the adaptability and availability of the property for that use. The experts simply disagreed on the highest and best use. '
It seems to me that the majority has weighed the evidence while considering its substantiality. | [
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Carleton Harris, Chief Justice.
On October 1, 1962, Malcolm Keith Baker, appellee herein, contracted to purchase the franchise of Manpower, Inc. of Pulaski County, from Manpower, Inc. of Tennessee, hereafter called Manpower of Tennessee, for the sum of $11,000.00. The franchise was to remain in effect for a period of five years, with the option of renewal, except that appellant had the right to cancel, if certain conditions of the agreement were not complied with. The nature of the business consists in offering a variety of services to business concerns, including the supply of temporary employees. Manpower, Inc. of Tennessee is a subsidiary of Manpower, Inc. of Delaware, hereafter called Manpower, the home office being located in Milwaukee, Wisconsin.
On October 15, Baker, while at the home office in Milwaukee for training, executed a note for $7,500.00 to the First National Bank of Milwaukee, this note subsequently being assigned to Manpower, the note being endorsed by Baker’s wife. This note was payable in monthly installments, which were to be concluded on November 15, I960. Thirty-five hundred dollars was paid.
The first point of disagreement arose between the parties when Baker returned to Little Rock. It was, and is, his contention that the $11,000.00 sale price paid to Manpower included approximately $6,000.00 of office furniture and equipment; Baker found this equipment had been moved from the building when he returned from Milwaukee. Manpower denies that the agreement included this furniture and equipment.
When Baker commenced liis operation, he was instructed to draw on the company bank account in Milwaukee as a matter of paying the Pulaski County employees, and this proceedure was followed for the next several months. After the first of the year, various officials of the company called Baker, insisting that he sign a note for the amount, that had been drawn to pay employees, and finally, on July 7, 3 963, Baker signed this note in the amount of $5,718.45, (he note being a demand note-dated April 15, .1968. On January 14, 1965, Manpower instituted suit against Baker and wife, asserting that no part of the principal or interest of the $7,500.00 note had been paid, and seeking judgment in that amount. On the same date, Manpower of Tennessee instituted a complaiut against Manpower, Inc- of Pulaski County and Baker, alleging non-payment, of the note for $5,718.45, and seeking judgment for that amount, together with interest. The Bakers answered, denying the allegations of the complaints, and filed their own cross-complaint, (counter-claim), asserting that appellants had wrongfully taken possession of Baker’s business, furniture and assets; it was alleged that he had been damaged in the sum of $84,000.00. Punitive damages were also sought in the amount- of $50,000.00. Appellants responded to the cross-complaint, denying all allegations. The cases were consolidated for trial, and on hearing, the court, sitting as a jury, at the conclusion of the evidence, announced its findings, a part of which was incorporated into the judgment, as follows:
“There will bo judgment for the defendant on the suit — on the notes in both cases, and there will bo judgment for the defendant, on the cross-complaint against the plaintiff for damages to his business in the sum of $7,500.00.”
Judgment was then entered for appellee on both notes, and appellee was also awarded judgment, for $7,-500.00 on the. cross-complaint. From the judgment so entered, appellants bring this appeal. Several points arc urged for reversal, but we discuss only the first, since error was committed and the judgment must be reversed, and the case remanded.
It is first argued by appellants that the court committed error in failing to enter judgment for appellants on the two promissory notes, admittedly executed by appellee; that even if appellee established the right of set-off against the amount owing on the notes, such a finding -would not constitute a defense to the execution of llie notes, and there was no legal basis for the court to simply refuse to grant a recovery. We agree that error was committed. Baker does not allege forgery or fraud in the execution of the instruments; to the. contrary, the signing of the notes is admitted. It was likewise admitted that no payments had been made on either note. It is true, of course, that any set-off established by a counter-claim could properly be allowed as a credit against the amount of the note. In Harris v. Perron, 232 Ark. 162, 334 S.W. 2d 705, we said:
“The record reveals the testimony to be undisputed that there is a balance due on the note oP $5,-783.48. "Endorsement of the note was admitted by appellees. Therefore, the only question presented in trial of the case was the amount of set-off due appellees. The only testimony introduced on behalf of appellees regarding the set-off claimed is that, of appellee, Ruby Perron. This testimony consisted of claims for specific amounts for the removal, by appellants, of three specific items which, according to appellees’ testimony, -were to remain with the house.”
The court, in rendering its findings, heretofore quoted, gave no explanation for disallowing any recovery on either of the notes, and one would have to assume that lie found nothing to be due because of the fact that amounts due under the counter-claim were greater than the total amount claimed by appellants. In fact, to conform to the judgment entered, it was necessary that the court find that the counter-claim by appellees exceeded appellants’ claim by $7,500.00, meaning that the counterclaim had a value of $20,718.45. Here, again, the trial judge did not explain the basis of the award, though in remarks preceding those appearing in the judgment, it appears that an allowance of $6,000.00 might have been made on the basis of the court’s finding that the furniture and .equipment had been purchased by appellee, but had been removed by appellant. There is nothing in the remarks of the trial judge indicating the basis for the balance of the counter-claim allowed, $14,718.45, though the figures indicate that a part of the judgment was based on cancellation of the notes.
Since this case is being remanded for another trial, it might be here said that it is rather difficult to follow parts of the testimony, and a portion of the evidence is somewhat vague and speculative. It would seem that, more specific evidence could be offered by all parties to the litigation on some of the questions involved.
Ill accordance with, tlie views herein set out, the judgment is reversed, and the cause remanded for farther proceedings not inconsistent with this opinion.
This case was tried by Judge Tom Gentry, but Judge Gentry resigned from office before judgment was entered. The judgment was subsequently entered, on Gentry’s findings, by the present Circuit Judge of the Pulaski County Circuit Court, Third Divi sion, the Honorable Tom Digby.
Appellee argues a number of items which he contends supports recovery; however, he took no cross-appeal. It is asserted that, because of the wrongful cancellation of his franchise, and the taking over of the business by appellants, he lost $118,560 00 in net profits, this figure being based on a five-year operation, the length of the franchise. It is further contended that he was entitled to a credit of at least $1,787.42, a part of the money on deposit in the Union National Bank at the time of the cancellation of the franchise; it is contended that Manpower of Pulaski County held accounts receivable in the amount of $10,000.00; appellee argues that he was due the return of the $3,500.00 cash paid on the contract price: that he was due $7,500.00 that he invested in the business (not the $7,500.00 mentioned in the note); other lesser items are also included. | [
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George Rose Smith, Justice.
Mark Ray, the appellee, brought this action against the Bank of Cabot for the conversion of a 1967 Pontiac car that Mark, then 20 years old, was rebuilding himself. This appeal from a judgment in Mark’s favor for compensatory and punitive damages comes to the Supreme Court as a tort action. Rule 29 (1) (o). The judgment must be reversed, because the plaintiff failed to introduce any proof of the fair market value of the car.
Mark testified that in 1978 he had a LeMans car which he had damaged beyond repair in a wreck. He bought the 1967 Pontiac for $200 and paid his cousin $350 to put the Lemans engine in the Pontiac. Mark testified to the cost of various parts he bought and installed, but the car was not yet in a condition to be dirven when the bank converted it. There was no testimony by either side about the fair market value of the partly rebuilt Pontiac, but the trial judge overruled an objection on that score, saying that there was no way to give the jury some idea of the market value except by proof of the state of the repairs. The jury was instructed that the measure of damages would be the fair market value of the car, but in the absence of supporting proof the submission of that issue was error. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979).
There was sufficient evidence to justify the submission of the issue of punitive damages. The bank, as agent for the owners of a house near Cabot, had rented it either to Mark’s girlfriend or to her and Mark together. In seeking to recover possession the bank served a notice to vacate on both Mark and the girl. It directed them to deliver possession on or before September 30 and to “remove all property including cars.” The bank, however, took possession of the house before September 30 and had the Pontiac hauled away and crushed, thinking it to be an abandoned junk car. When Mark went to the house on September 30 and found the car to be missing, he reported it to the police as a stolen car.
In view of the language in the notice to vacate, the bank’s premature repossession, and its precipitate destruction of the car, the evidence was sufficient to support the court’s submission of AMI 2217 on punitive damages, leaving it to the jury to decide whether malice should be inferred. AMI Civil 2d, 2217 (1974). The court, however, should not have used the bracketed reference to the bank’s financial condition, for there was no proof about that matter.
A third point for reversal relates to the plaintiff’s motion that the bank not be permitted to cross-examine Ray about a conviction for the delivery of a controlled substance. The court did not make a final ruling, and until it does so, weighing the impeachment value of the conviction against its prejudicial effect, we are not in a position to say how the trial court should exercise its discretion. The bank’s fourth point is without merit. The trial judge properly refused to give the bank’s requested instruction No. 6, which would have told the jury that Mark Ray was not a tenant — a disputed question of fact.
Reversed and remanded for a new trial. | [
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Per Curiam.
Samuel Robinson filed a petition for A.R.Cr.P., Rule 37, relief because he was convicted of aggravated robbery and first degree battery and sentenced in violation of Ark. Stat. Ann. § 41-105 (2) (a) (lesser included offense). We affirmed Robinson’s conviction and his sentence of twenty-five years imprisonment for aggravated robbery and twelve years for first degree battery, finding that the issue argued to us was not properly raised.
Robinson was charged with first degree battery in violation of Ark. Stat. Ann. § 41-1601 (d) in that he committed the battery during the course of a felony, that felony being aggravated robbery. The jury was instructed accordingly, AMCI 1601(A). In accordance with our decisions in Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), Rowe v. State, 275 Ark. 37,627 S.W.2d 16(1982), and Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983), the conviction and sentence for first degree battery are set aside as being imposed in violation of Ark. Stat. Ann. § 41-105 (Repl. 1977). The conviction and sentence for aggravated robbery are not disturbed. See Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982). | [
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James H. Pilkinton, Judge.
This case arises out of an admitted error on the part of an insurance agent in procuring fire insurance for an insured. The case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals under Rule 29(3) of the Arkansas Supreme Court.
The Chancery Court reformed an insurance policy issued by Granite State Insurance Company to E. H. Bacon d/b/a Arkansas Motel, Arkadelphia, Arkansas, to provide $55,000 coverage on Unit A of his motel. Under the reformed policy Mr. Bacon was given judgment for $44,899.24 against the insurance company to cover fire damage to the insured property, plus statutory penalties and attorney fees. The insurance company was awarded $540 on a cross action against its agent Walter H. Broyles for the additional premium due on the increased amount of coverage afforded by the policy as reformed.
Appellant does not question any of the pertinent findings of fact made by the Chancellor in the decree. It urges only one point on appeal claiming the Chancellor erred in refusing to award Granite Life judgment over against the agent by way of contribution and/or indemnity for the amounts the company was required to pay, under the reformed policy, in excess of $5,500 coverage provided by the policy actually issued.
Mr. Broyles has handled the insurance affairs of Mr. Bacon for the past several years. The Arkansas Motel consists of three separate units. Unit A involved in this litigation contained eight rooms, together with an office, storage facilities and the Bacon private living quarters. Units B and C contained only rental units. For two years prior to November 7, 1977, Mr. Bacon had insured the motel against fire loss with another company. That coverage was also obtained by agent Broyles. Sometime prior to that date, Mr. Bacon was advised by the other company it was no longer willing to continue to insure the motel. Thereafter Mr. Broyles placed the fire coverage with Granite State Insurance Company. Mr. Broyles and Mr. Bacon had agreed that the agent was to obtain the same amount of insurance coverage by securing a policy from Granite State. In a letter sent to Granite State, Mr. Broyles correctly assigned values of $50,000 each to Unit B and Unit G of the motel, but erroneously typed $5,500 fire coverage for Unit A instead of the intended amount of $55,-000. It is undisputed that the previous premise coverage on Unit A had been $55,000; and that it was Mr. Bacon’s instruction to the agent to procure the same amount on that unit. The Granite State coverage was effective November 7, 1977, but the policy as written on Unit A did not reflect the agreement of the parties as it provided only $5,500 coverage. On December 1, 1977, before anyone involved discovered the error, Unit A was partially destroyed by fire. The loss was within the coverage provided by the Granite State policy, as reformed. The amount of loss is not an issue here.
The facts in this case are almost identical to those in Pennsylvania Millers Mutual Insurance Company v. Walton, 236 Ark. 336, 365 S.W. 2d 859 (1963). In that case the agent and insured had agreed upon a certain coverage. Through a mistake of the agent the insured was left insufficiently covered. In Pennsylvania Millers Mutual the insurance company sought indemnity from the agent. The mistake there was not discovered until after the damage had occurred. In that case too the Chancellor reformed the policy because of error. Judgment was decreed against the carrier in favor of the insured less the difference in the premiums. Upon appeal the insurance company contended, just as Granite State does here, that the liability to the insured was caused by the mistake of the agent and the trial court erred in denying indemnity from the agent. The Supreme Court held that the agent was not liable to the insurance company for the mistake. The court said:
It does not follow, in the absence of a showing of collusion or bad faith, that appellees are liable to appellant for a loss occasioned on an insurance contract which appellees had full power and expressed authority to make on behalf of appellant.
In the case at bar appellant places great emphasis on Mr. Broyles’ negligence. A careful reading of Pennsylvania Millers Mutual Insurance Company v. Walton, shows that the question of negligence, whether related to the insurance company or the agent, is not the issue and the question of negligence should have no bearing on the disposition of this appeal. The one point presented by appellant here may be simply stated. (1) Did agent Broyles have authority to bind Granite State: and (2) would the insurance company have initially accepted the increased coverage? The answer to the first question is almost undisputed. The testimony of the assistant manager of the Granite State Little Rock office confirms that Mr. Broyles, as a general agent, had authority to bind the company to this risk prior to the issuance of the policy as Mr. Broyles claims. The answer to the second question is also clear from the evidence. Mr. Broyles testified there was no doubt in his mind Granite State would have insured Unit A for $55,000 had he requested coverage in that amount instead of the $5,500 by mistake. Mrs. Eileen Cockmon as an underwriter for Granite State confirms the company would have issued a policy for $55,000 if it had been requested by Mr. Broyles, subject to a later inspection. Mrs. Cockmon testified the initial evaluation of property is the agent’s responsibility. She said the company relies on the agent’s expertise and is willing to stay bound on the amount requested by the agent pending an inspection. It is clear from Mrs. Cockmon’s testimony that if Mr. Broyles had not made the error she would have written the policy on Unit A for $55,-000. The testimony of Mr. James V. Sewell, assistant manager of appellant’s Little Rock office, confirms the fact the agent would determine the amount of coverage without prior approval of the company. The inspection report was not issued until some four months after the fire. Whether Mrs. Cockmon may have questioned the evaluation after the inspection is not important here. There is no suggestion of collusion or bad faith on the part of Mr. Broyles. He simply made a mistake, which was not intended, and admits the fact. The testimony indicates to us that Granite State would have issued a policy for $55,000 on the unit in question except for the agent’s typographical error. We hold that the case of Pennsylvania Millers Mutual Insurance Company v. Walton, previously cited and discussed, is controlling of the issue now before this court.
The evidence clearly indicates that the risks such as Mr. Bacon’s motel are of a class that Granite State was accustomed to writing; and is the type of risk, according to Mr. Broyles, which the company actively solicited. Granite State was not drawn into a contract of insurance against a risk which it ordinarily does not insure against. | [
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Conley Byrd, Justice.
This litigation started out as an eminent domain action on November 12,1975. By agreement of the parties the matter was transferred to chancery because of appellant Hazel Farmer Gray’s contention that the acquisition of her house is not for a public use since the proposed plan of the Urban Renewal Agency is to demolish the house and to resell the property to a private developer for construction of a ten story high-rise building. Appellant also contends that no public purpose is served by the acquisition of the house because the house is not a slum nor a blight nor dangerous in any way to the health, safety and morals of the community.
The proof on the part of the Urban Renewal Agency showed that by resolution of the Urban Renewal Commission and the City of North Little Rock the area surrounding appellant’s property, including appellant’s property was placed in the area in a 100 to 102 acre tract known as the Westgate Urban Renewal Project. This project was approved in 1968 by the Department of Housing and Urban Development. Donald Manes testified that he made a survey of the area at the time and that the area had 50% or more dilapidated structures not capable of being repaired plus at least two environmental problems such as poor streets, poor drainage and incompatibility of land use between commercial and residential. Based upon a penalty point system with reference to the North Little Rock Housing Code it was the opinion of his firm that appellant’s property had more than 50% of its value gone. Those determinations were made on the structural condition of the house.
During the trial the parties stipulated that the expert witnesses for both parties would testify that the value of the property would be $31,500.
Wilson Stiles testified that on January 4, 1978 the subject property was placed on the National Register of Historic Places. He also stated the opinion that there had been no sub stantial deterioration in the property and that it is structurally sound. On cross-examination Stiles admitted that he had not viewed the foundation of the house and that he had not done a structural survey of the existing walls.
In making her contention that the trial court erred in holding that the appellee had the right to acquire appellant’s property, appellant relies upon City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W. 2d 486 (1967). We fail to see the analogy. In the Raines case, supra, the City of Little Rock sought to takes Raines’ farm so that the City could hold it for sale for industrial purposes. Here however, the Urban Renewal Agency’s purpose in taking the property is directed toward clearance, reconstruction and rehabilitation of a blighted area. In Rowe v. Housing Authority of The City of Little Rock, 220 Ark. 698, 249 S.W. 2d 551 (1952), we held that this was a permissible use of the right of eminent domain. Consequently, we find appellant’s first contention to be without merit. Neither can appellant complain that her property will be sold by appellee for the construction of a high-rise building. See Rowe v. Housing Authority of the City of Little Rock, supra.
Neither do we find any merit in appellant’s contention that the National Historic Preservation Act, and the Environmental Policy Act, Executive Order 11593, constitute a defense to this eminent domain action, U.S. Ex Rel T.V.A. v. Three Tracts of Land, 415 F. Supp. 586 (D.C.E.D. Tenn. 1976). Furthermore, the Federal authorities hold that such acts and orders will not be given retroactive effect, San Francisco Tomorrow v. Romney, 472 F. 2d 1021 (9th Cir. 1973).
Since we agree with appellee that it was not obligated to take administrative action prior to the hearing in this eminent domain action merely because the property was placed upon the national Register of Historic Places after the eminent domain action had been instituted, it follows that appellant’s contention that the Federal Courts have exclusive jurisdiction of the subject matter is also without merit.
Affirmed.
George Rose Smith, J., not participating.
Hickman and Purtle, JJ., dissent. | [
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James.H. Pilkinton, Judge.
Appellant was charged with second degree forgery in violation of Ark. Stat. Ann. § 41-2302 (Repl. 1977). The state specifically alleged that on April 2, 1977 Lewis uttered a check which was purported to have been drawn on one Don C. Clark, who had not authorized the appellant’s act. After entering his plea of not guilty, and after numerous continuances were granted at the request of both sides, a jury trial was held on February 8, 1979. Lewis was found guilty as charged and sentenced to two years imprisonment.
I.
Appellant first contends the trial court erred in refusing to grant his motion for a directed verdict of not guilty. We find no merit in this argument. A directed verdict is proper only when no fact issue exists. On appeal this court reviews the evidence in the light most favorable to the appellee and will affirm if there is substantial evidence to support the verdict. Balentine v. State, 259 Ark. 590, 535 S.W. 2d 221 (1976); Harris v. State, 262 Ark. 680 at 682, 561 S.W. 2d 69 (1978). In the case before us, we cannot say that no factual issue existed. The trial court was correct in denying defendant’s motion for a directed verdict.
II.
An employee of Brandon Furniture Company in Little Rock testified that on April 2, 1977, appellant made a purchase and gave her the check in question for $41.20 payable to Brandon Furniture Company. At the time, appellant purportedly held himself out to be Don C. Clark. The Brandon employees were suspicious at the time, but having no poisitive proof, took the check nevertheless. However, they did take special note of the appearance and description of the individual involved.
A little over a month later appellant appeared at the John Tucker Warehouse in Little Rock. Teresa Mukerjea, the employee at Brandon with whom appellant had dealt before, was then working for Brandon’s at the Tucker warehouse. She recognized appellant, and called the police after he had left the warehouse. The police arrested appellant a short time later. He now claims on appeal that his trial was not fair because the state withheld certain original statements made by witnesses from appellant’s discovery. We find no merit in this argument. It is undisputed that Brandon Furniture Company employees Teresa Mukerjea and Tommy Claussen gave written statements to the police with regard to the check in question. Each witness wrote out the statement in long hand. A police department secretary then typed copies of each statement. Appellant introduced both the handwritten statements, and the typed copies, into evi dence at the trial as Defendant’s Exhibits 1 through 4.
During the discovery period, defense counsel received copies of the typewritten statements via the “open file” policy of the Pulaski County Prosecuting Attorney’s office. The record is otherwise silent on the matter, but it was apparently only during the cross-examination of Officer Baer, who took the statements in the first place, that both the defense counsel and the state’s attorney learned that the longhand originals of the statements existed. The typewritten copies of the statements are identical to the handwritten originals except for the fact thát in the original statement of Ms. Mukerjea, some words were underlined by her, and this underlining was not shown on the typewritten version. Other than the underlineations, there are no differences whatsoever between the typed and handwritten documents. The wording is exactly the same. Thus no prejudice to the defendant could have occurred under the circumstances. The appellant’s argument, on appeal, that what happened constituted a violation of Rule 17.1 of the Arkansas Rules of Criminal Procedure is without merit. Neither does this case fall under the holding in Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978) as appellant claims.
III.
Appellant offered two proposed instructions concerning criminal simulation as defined.by Ark. Stat. Ann. § 41-2311. His theory was that the crime of criminal simulation is a lesser offense including a charge of forgery. The language of the commentary which accompanies Ark. Stat. Ann. § 41-2311 (Repl. 1977) (Criminal Simulation) states:
It [Section 41-2311] is designed to cover the fraudulent simulation of “objects” that are not written instruments within the definition of § 41-2301 (9). Such “objects” include antiques, paintings, and other objects d’art, as well as more common articles.
The commentary, although not legally binding, is highly persuasive in determining legislative intent. Britt v. State, 261 Ark. 488 at 495, 549 S.W. 2d 84 (1977).
Assuming without deciding that criminal simulation is in fact a lesser included offense of forgery, still appellant in this case would not be entitled to the instructions offered under the facts here. See Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972). The principle of law announced in Catón was codified in Arkansas Criminal Code, Ark. Stat. Ann. § 41-105 (3) (Repl. 1977) as follows:
The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
See also Frederick v. State, 258 Ark. 553 at 557, 528 S.W. 2d 362 (1975). In the case before us the defendant-appellant was either guilty of the greater charge or nothing at all. The trial court was correct in refusing both offered instructions on criminal simulation.
IV.
Appellant’s final argument is that he was denied a fair trial below due to his inability to discover the names of persons, or to view additional checks, which were involved in other alleged line-ups. We find no merit whatsoever in this contention. If there were other checks not the subject of the instant charge which appellant was supposed to have written, they were clearly unrelated with the case being tried. Consequently, we are unable to see how the appellant was prejudiced thereby, nor does he so inform us. And, as noted by the trial judge, these alleged “other” check(s) were never referred to by the prosecution, but rather were called to the attention of the jury by the defense on cross-examination. Any resulting prejudice, therefore, was invited, and cannot be raised as an error on appeal. Strode v. State, 259 Ark. 859, 537 S.W. 2d 162 (1976). Thus appellant is in no position here to argue that his rights under Rule 17.1 and under Williamson v. State, supra, were abridged.
V.
This court has carefully considered all points raised by appellant, but finding no error the judgment of the Pulaski County Circuit. Court must be affirmed, and the conviction upheld.
Affirmed.
Howard, J., and Penix, J., dissent. | [
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M. Steele Hays, Judge.
This is an appeal.from an order revoking a suspended sentence. On December 3, 1976, ap pellant was convicted of burglary- and sentenced to five years, the sentence to be suspended during good behavior, upon payment of a fine of $500 and costs within 120 days and upon non-use. of alcohol..
On April 20, 1979, the.State of Arkansas filed a petition to revoke the suspended sentence upon the grounds that appellant had been found guilty of third degree battery, had not reported to his probation officers, had not notified them of his present employment, had not reported a change of address and had not paid the fine and costs.
On May 11 a hearing was begun on the petition to revoke. Counsel for appellant moved for a continuance, referring to the appellant’s limited education and to the fact that the allegation that appellant was convicted of third degree battery was found to be in error. The motion for continuance was denied by the court at the outset, but during the hearing was later continued to May 15. On May 11, after the continuance, an amended petition to revoke appellant’s suspended sentence was filed alleging that appellant was convicted of gambling on May 2, 1978, public intoxication on August 8, 1978, third degree battery on September 8, 1978; public intoxication on September 8, Í978, and drunk in public on April 13, 1978, in addition to the previous grounds. During the proceedings on May 11, counsel for appellant asked the court to recuse itself, which motion was overruled. The hearing was reconvened on May 15 at the completion of which appellants suspended sentence was set aside and a sentence of five years was imposed.
The appellant brings this appeal, alleging as a single point for reversal, that appellant was denied due process under the Fourteenth Amendment by the trial judge’s refusal to recuse himself for consideration of the petition to revoke.
In view of the type of error asserted, i.e., a refusal to recuse, we deem it necessary to set forth pertinent portions of the proceedings in some detail:
BY THE COURT: Arid didn’t you tell him that every time you had gotten, into trouble it was because of iiquor, that you had been drinking?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: And do you remember what that judge told you about liquor?
BY THE DEFENDANT: He told me to leave it alone.
BY THE COURT: That’s exactly right. Now, do you know who that judge was?
BY THE DEFENDANT: No, sir, but I think it was you,though.
BY THE COURT: I know it was me, and there is my writing and that’s right there on the book, (showing)
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Where I told you to leave alcohol alone.
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Just pure and simple. Leave it alone.
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Mr. Davis, you can call what witnesses you want, but I cannot sanction this type of conduct and try to maintain a probation department and provisions with the hope of rehabilitation when one of the things that has come up is public drunkenness. If this gentleman has a problem with liquor — I don’t remember all these cases until I come back with this one.
During cross-examination of appellant’s mother by the ¡prosecutor, Mr. Johnson, the following occurred:
Q: Have you seen Willie drinking at your house, Mrs. Ross?
A: It’s quite natural if his momma drink a little beer, he might drink a little, too.
THE COURT: Ma’am, he didn’t ask you what he might do. Now, you answer his question, whether he has come in there drunk.
THE WITNESS: No, sir, he don’t come in there drunk.
THE COURT: Have you seen him drinking?
THE WITNESS: I’ve seen him drink one can of beer.
THE COURT: Now —
THE WITNESS: One can of beer at the time. And that’s all I can remember, and can tell you the truth on that. He drank one can of beer.
THE COURT: We are fixing to have a witness that’s fixing to go upstairs.
THE WITNESS: No, sir, don’t put me up, please.
MR. DAVIS: Now, your Honor —
THE COURT: Now, she’s trying to play games with this court.
THE WITNESS: No, sir, I’m not —
THE COURT: Now, and this court’s not going to — just a minute, and you can instruct her if you want to, but I’m not — just a minute. But I’m not fixing to put up with this for one minute.
MR. DAVIS: Your Honor, I would like for the record to reflect that I object to the court. •
THE COURT: You make the record; you put in there whatever you want to, but when a witness gets on the stand, “I ain’t saying whether I’ve been seeing drinking or not,” and works around to one beer, this court is not putting up with that. Put in there anything you want to Mr. . Davis.
THE WITNESS: I want to —
THE COURT: You just be quiet and sit down.
THE WITNESS: Okay.
THE COURT: Go ahead and make your record.
THE WITNESS: Please don’t —
MR. DAVIS: Your Honor, my objection is that I feel that the court is trying to intimidate the witness and to take over cross examining her concerning her testimony, and in doing so is becoming more of an advocate rather than a judicial officer in the proceedings.
I feel that it is improper for the court to take this attitude towards the witness and threatening her with going to jail concerning some remarks she made in her testimony.
THE WITNESS: I’m sorry.
MR. DAVIS: I would ask the court if perhaps I might suggest, obviously the witness has caused the court to become angry; maybe that anger is justifiable. I’m not saying that it’s not. I simply suggest that the court perhaps it recuse itself from further consideration of this case.
THE COURT: That motion will be overruled right now.
THE WITNESS: Please don’t lock me up. I didn’t mean no harm.
THE COURT: Go ahead. Finish.
MR. DAVIS: That’s all I believe I care to say at this time.
THE COURT: Mr. Davis, let me make a statement, and I want the record to reflect on this. This is not my first day in court. This is not the first day I know any thing about the facts of law. This is not the first day T ve had any experience in trial work. The court feels a strong obligation to maintain order, decorum, and to require a witness when testifying not to be evasive, and not to commit, in a sense, perjury.
Now, the questions which the deputy prosecuting attorney asked this witness, and the witness’ s manner and demeanor on the stand, “I ain’t said how many times he’s been drunk. I ain’t said how many times he’s been drinking. He drinks beer with me when I want to,” and then come back and tell me she has seen him drink one beer, is in the opinion of this court an affront to this court. And if I’m to sit here and hold any type of dignity of this court, then I will not permit a witness to try to Aim flam an attorney who is asking questions, nor the record in this court.
I am not angry, but I am firm in my beliefs in this regard.
We conclude that appellant is correct in urging that the trial court took an overly active part in these proceedings from the side of the prosecution and when that occurs the trial judge loses at least the appearance of impartiality which is essential under our system. Clearly, the trial judge became impatient and irritated with the somewhat equivocal answers of appellant’s mother, but to suggest on such, slender grounds that she was just about to be put in jail resulted in an intimidation of the witness to no discernible purpose. We think she could have been admonished to answer truthfully and responsively without the unveiled threat of being taken “upstairs.” Still, this interchange in the record might not be enough on its own to lead us to the result reached, but when the other segment is examined, there is enough to sway the balance. That portion of the quoted section reflects that even though the State’s petition for revocation (prior to the amendments) said nothing about use of alcohol, the court on its own interrogation went into the matter in depth. But the telling point is the comment by the court:
BY THE COURT: Mr. Davis, you can call all the witnesses you want, but I cannot sanction this type of conduct and try to maintain a probation department and provisions with the hope of rehabilitation when one of the things that has come up is public drunkenness. (T. p. 8)
It seems clear that when a trial judge, at the outset of a hearing for any purpose, states to either side words to the effect — “you may call all the witnesses you want, but— ”, that a set of mind is present which cannot be reconciled with the proposition that the trial court is committed to hear all relevant, credible evidence weighing it and arriving at a judicious result.
We find this observation to be very closely related to the comment in Burrows v. Forrest City, 260 Ark. 712, 543 S.W. 2d 488 (1976) cited by the appellant. In Burrows, the appellant filed a motion for the trial judge to recuse himself from hearing on the motion for revocation on the ground that the judge had told an attorney that appellant should “bring his toothbrush with him,” implying that he would go to jail if found guilty. The trial court denied the motion. In reversing the denial of the motion, the Arkansas Supreme Court quoted language from an earlier case, Farley v. Jester, 257 Ark. 686, 520 S.W. 2d 200 (1975):
However, court proceedings must not only be fair and impartial — they must also appear to be fair and impartial.
We think this language is clearly applicable to the case at bar. Although we do not make any retrospective judgments on the impartiality of the trial court itself and keeping in mind the rule of law that suspended sentences and also their revocation are within the sound judicial discretion of the trial court [Ark. Stat. Ann. §§ 43-2314 and 43-2326 (Repl. 1977); Gross v. State, 240 Ark. 926, 403 S.W. 2d 75 (1966)], we think that the trial court’s own cross-examination of the witness and its demonstrated impatience and irritation in response to the witness’ statements gave the “appearance” ofbias. Thus, where the trial judge sits as a finder of fact, the appearance of fairness in trial proceedings becomes even more important. Burrows, supra.
We are troubled too, with the matter of fact way that the appellant’s drinking problem was treated as if it were easily controllable. Certainly, the trial judge was striving to relieve the community as well as the appellant of the problems resulting from the appellant’s use of alcohol, a commendable objective, but he seems to have ignored the fact that chronic alcoholism is compulsive or even disease-based, according to respectable authority, and thus to simply say to an individual under a suspended sentence, if alcoholism is the problem, ‘ ‘if you drink you may be sent to the penitentiary’ ’ is an over simplification of cause and effect; a better method, we believe, where facilities are available, is to direct the defendant to attend an alcohol abuse program with reasonable consequences if he disobeys the conditions.
We have reached the conclusion that the trial judge should have recused himself, in part in the belief that the reinstatement of the entire five year original sentence under the totality of the facts and circumstances of this case was severe. Understandably, the trial court may have felt personally affronted by the appellant’s failure to comply with the conditions of his suspension, but the end result is that the record suggests that the appearance of fairness is lacking.
Reversed and remanded with instructions to recuse. | [
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George Howard, Jr., Judge.
This appeal presents the following questions:
1. Did the trial court commit error in authorizing appellee to deduct from appellants’ jury award $2,- 693.66 as rent due Lawrence Tilley, owner of part of the land on which appellants’ rice crop was produced and who was not a party to the action?
2. Whether appellants are entitled to interest on the S261.035.99, that appellee admitted owing, from the date that appellants filed their lawsuit, November 29, 1977, to August 2, 1978, when appellee, pursuant to court order, delivered this money to appellants although appellants’ recovery was less than what they sued for, but greater than what appellee admitted owing.
The essential facts are: Appellants are rice producers of two varities known as Nato and Nortai. Appellee is a trader and markets this rice almost exclusively with the Kellogg Company.
During the spring of 1977, appellants and appellee entered into an oral agreement whereby appellee would purchase the rice produced by appellants, but agreed that the amount to be paid per bushel would be determined during the harvest season since it was difficult, if not in fact impossible, to determine what the competitive market price would be at that time. Between September 9, 1977, and October 20, 1977, appellants delivered to appellee 99,566.61 bushels of green rice, but after drying the deliveries aggregated 27,-462.28 bushels of Nato and 60,939.73 bushels of Nortai.
On October 20, 1977, appellants were advised that appellee would pay only $4.00 per bushel for both Nato and Nortai rice. Appellants rejected the offer, contending that the amount offered was not competitive and did not mirror the fair market price. On October 28, 1977, appellants demanded a settlement advising appellee that they would not accept anything less than $6.01 per bushel for the Nato variety and $5.91 per bushel for the Nortai variety. Appellee rejected appellants’ offer. Appellants demanded a return of all of the rice delivered, minus reasonable deduction for storage and drying expense. Appellee also rejected this request.
On November 29, 1977, appellants filed their lawsuit seeking judgment for $607,010.00 with interest at the rate of 10% per annum from October 28, 1977, the date appellants made demand for settlement, until paid.
Appellee filed its answer alleging that appellee had offered to pay $4.48 per bushel for Nato rice and $4.20 per bushel for Nortai rice, both constituting grade number 2, minus the cost of drying, advancements made to appellants, combining expense and payments to owners of lands rented by appellants on which the rice was grown; and that appellants should be required to accept the settlement offered.
The matter was scheduled for trial on August 2, 1978, but was continued, at the request of appellee, on condition that appellee pay to appellants the amount that it admitted owing after the deduction of certain indebtedness — drying charges, combining expense, advances made to appellants and rent paid to owners of lands leased by appellants. Appellee delivered to appellants $261,035.99. This sum is based upon appellee’s claim that appellants were entitled to $4.48 per bushel for 27,462.28 dry bushels of Nato rice and $4.20 per bushel for 60,939.73 bushels of Nortai rice.
On September 28, 1978, the matter proceeded to trial. The parties, by way of stipulation, submitted only one issue to the jury: What did appellee owe appellants per bushel for Nato grade number 2 and Nortai grade number 2 rice?
The jury found that appellee should pay $4.48 per bushel for the Nato variety as well as $4.48 per bushel for the Nortai variety. As a consequence, appellants were awarded an additional .28^ per bushel on 60,939.73 bushels of Nortai rice, resulting in an award of $17,063.13.
On November 6, 1978, appellee filed its motion to enter judgment on the jury’s verdict and further requested leave to deduct from the award $2,693.66 as rent due Lawrence Tilley, landlord of appellants’. The trial court entered its judgment on November 28, 1978, authorizing appellee to deduct the rent due Tilley and entered a $14,369.47 judgment for appellants with interest from September 29, 1977, until paid. The trial court denied appellants’ request for in terest on the $261,035.99 from the date of their lawsuit to August 2, 1978.
It is plain that as a consequence of the jury award, appellants received .280 more for the 60,939.73 bushels of Nortai, aggregating a total recovery of $17,063.13. After the trial court authorized appellee to pay the rent due Lawrence Tilley, appellants realized a net gain of $14,369.47.
Appellants argue that the trial court in permitting this deduction, in effect, rendered a judgment on behalf of Lawrence Tilley who was not a party to the action. Further, appellants argue that the jury award was based solely upon an increasement of the price for the Nortai rice which was not grown on the land owned by Lawrence Tilley and to permit Tilley to share in the award is, in effect, to permit him to share in the value of something which he had no interest in.
We are not persuaded by appellants’ argument and consequently, we reject appellants’ position here in its entirely.
Ark. Stat. Ann. §51-201 (1971 Repl.), provides:
Every landlord shall have a lien upon the crop grown upon the demised premises in any year for rent that shall accrue for such year, and such lien shall continue for six [6] months after such rent shall become due and payable, and no longer.
Ark. Stat. Ann. §51-205 (1971 Repl.), states:
The purchaser or assignee of the receipt of any ginner, warehouse-holder or cotton factor or other bailee or any cotton, corn or other farm products in store or custody of such ginner, warehouseman, cotton factor, or other bailee shall not be held to be an innocent purchaser of any such produce against the lien of any landlord or laborer. (Emphasis added.)
It is undisputed that appellants delivered an aggregate of 99,566.61 bushels of green rice to appellee, some of which had been produced on lands owned by Tilley. We believe that appellee had sufficient interest and equity in the produce to justify appellee in taking steps to see that the landlord’s rent was paid. While it is not clear from the record just when Tilley’s rent became due, it is plain that Tilley had contacted both appellants and appellee about his rent and, as a consequence, certain promises and acknowledgments were made. Under these circumstances, appellee might have concluded that the six months limitation contained in the statute was not a defense to any action against it by Tilley.
Moreover, all parties acknowledged that certain deductions were to be made from the gross proceeds, including rent to several land owners. By oversight, Lawrence Tilley was not paid.
Finally, we do not perceive the trial court’s order authorizing appellee to deduct Tilley’s rent from the jury award as constituting a judgment. Tilley was not a party to the action and there was no attempt by the trial court to adjudicate any issue that involved Tilley. The action of the trial court simply authorized appellee to pay Tilley.
Appellants also argue that the trial court erred in not allowing interest on $261,035.99 which appellee admitted that it owed appellants and which was delivered to appellants on August 2, 1978, pursuant to a court order. We believe that appellants’ argument here has merit and we, accordingly, reverse the trial court.
It must be remembered that appellants delivered to appellee from September 9, 1977, to October 20, 1977; appellants filed their lawsuit on November 29, 1977. It was not until August 2, 1978, that appellee relinquished funds which it recognized as belonging to appellants. While appellee asserts that appellants were offered funds almost immediately after the dispute developed and that appellants could have received the proceeds by simply asking for them, it is plain that appellee’s offer was not unconditional. Moreover, appellee made no effort to interplead the funds in court. Appellee delivered the proceeds to appellants as a condition precedent for a requested continuance of the case on August 2, 1978.
We are convinced that Loomis v. Loomis, 221 Ark. 743, 255 S.W.2d 671 (1973), is controliing here where the Arkansas Supreme Court stated:
. . . The familiar rule that interest is not allowed on un-liquidated demands does not mean that the defendant must in every instance know before the trial the exact amount he must pay if he loses. The rule applies principally to those cases in which the defendant is not in default for the reason that the extent of his liability can be determined only by litigation, as in a suit for personal injuries or for recovery upon quantum meruit . . .
... [A] defendant’s liability for breach of a contract to pay a definite sum of money may be uncertain, for the default may have saved the plaintiff the expense of full performance on his own part, and that saving may be a matter for the jury to determine. In spite of this uncertainty interest is recoverable from the date of the breach
We hold that under the circumstances existing in this case, appellants are entitled to interest from the date of the filing of their lawsuit to August 2,1978, the date that appellee delivered the funds to appellants at the rate of 6% per annum.
Affirmed in part and reversed in part and remanded for proceedings not inconsistent with this opinion. | [
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Lyle Brown, Justice.
Custody of Ruth Estes’ children had been awarded to their paternal grandparents and Mrs. Estes removed them to Puerto Rico without permission of the chancery court handling the custody matter. That action is prohibited by Ark. Stat. Ann. § 41-1121 (Repl. 1964). Mrs. Estes was convicted and sentenced to six months imprisonment. In appealing her conviction she alleges several diverse points of error which will be enumerated after a brief statement of facts.
To tlie union of Don Masner and Ruth Masner (now Estes) were horn two children. In 1959 Don sued for divorce and custody of the children. He was granted a divorce hut the court found the parents unsuitable to have custody of the children and placed them in the care of Mr. and Mrs. W. B. Masner, paternal grandparents. Those proceeding's were in the Independence County Chancery Court. In August 1966, on motion of the mother, the court modified the 1959 custody provision to this effect:
The defendant-petitioner, Ruth Masner Estes, is to he permitted to have the children ... in her custody for a period of two weeks each summer period, the first period to commence August 15, 1966, and end August 29, 1966, the defendant-petitioner to pick up the children from Mr. and Mrs. Bernice Masner, paternal grandparents, who have hitherto been awarded custody of these children, at her own expense, and to return said children on said date at her own expense.
Pursuant to that order Mrs. Estes picked up the children. She first took them to Texas to visit relatives. A few days thereafter the mother and children flew from Dallas to San Juan, Puerto Rico, where the Esteses had resided since 1965. Mrs. Estes did not return the children on August 29 and the following day the present charge, was filed against her.
The children have never been returned to Arkansas and Mrs. Estes testified she had no intention of returning them. She admitted taking the children out of this State. She defended that action on the grounds that (1) she thought all interested parties understood she so intended, and (2) that when she. obtained the children she had no intention of keeping them beyond the two weeks allowed. She testified that she changed her mind thereafter when the children expressed a desire not to return.
One other pertinent fact should be noted because it has a bearing on one of the points in issue. Subsequent to her conviction by jury trial, the court granted a motion to set aside the verdict. At that time a stipulation between counsel for both sides was presented to the court and approved. It was agreed that the trial judge would retry the ease without a jury and on the basis of the record made at the first trial. That stipulation had the effect of eliminating from the court’s consideration the jury verdict and the instructions.
POINT I. It toas error to refuse, to allow appellant to take the depositions of out-of-state witnesses. A motion to take depositions of five witnesses who resided in Puerto Rico was filed in October 1967. That motion was not presented to the court until after the parties announced ready for trial. The presentation of such a motion at a stage in the proceedings when a continuance would result from the granting of the motion was disapproved in Criner v. State, 236 Ark. 220, 365 S.W. 2d 252 (1963).
POINT II. The court erred in refusing to quash the information, the warrant, and in overruling the demurrer to the information. It is first pointed out that the warrant: was never served on appellant. That fact becomes immaterial because appellant admittedly returned from Puerto Rico to Independence County to contest the charges. A complete answer to the assertion is that the “Motion to Quash Bench Warrant” was not filed until after appellant announced ready for trial. Secondly, it is asserted that the Information does not state facts sufficient to allege a crime. The language of the Information is certain as to the title of the prosecution, the name of the court, the county in which the alleged offense was committed, and the name of the defendant. Those are the requirements of the contents of an Indictment or Information. Ark. Stat. Ann. §§ 43-1006, 43-1008 (Repl. 1964); See Geoates v. State, 206 Ark. 654, 177 S.W. 2d 919 (1944). The acts constituí ing the offense need not be stated unless the offense cannot l)e otherwise charged. When it is necessary that a defendant acquire additional facts in order to properly defend, lie can request a bill of particulars and the Slate is required to respond.
POINT III. Appellant was arrested during the course of the trial and served ivith a %oarrant for civil contempt issued out of another court, all to her prejudice. A contempt citation had been issued out of the chancery court for failure to return the children as required by court order. Mrs. Estes testified that she was served with that process during the noon recess of the criminal trial. The record is void of any showing of prejudice. Additionally, the allegation is not set forth in the motion for new trial.
POINT TY. Improper evidence ivas admitted and proper evidence was excluded.
(a) Improper evidence. The petition for modification of the divorce decree, heretofore discussed, was introduced by the State over appellant’s general objection. The petition recited excerpts from the original decree which related that neither parent was a proper party to have custody of the children. Appellant argues here that it was error for the jury to be informed that she had been adjudged an improper person to have custody of her children. That same information was contained in the 1959 decree, a copy of which was introduced without objection. Furthermore, the petition for modification was generally admissible because it explained the modified decree which resulted from the filing of the petition. A specific objection was therefore required if appellant desired a deletion. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611 (1945).
(b) Exclusion of proper evidence. In September 1966, the father and the grandfather of the children went to Puerto Pico in an effort to retrieve the children. They were restrained from removing the children by an order issued by the Superior Court of San Juan. The father and the grandfather left and abandoned any effort to resist the mother’s petition in that court. In the case before us the appellant offered a transcript of the proceedings in San Juan and the trial court sustained the State’s objection. The trial court was correct because those proceedings, occurring some time after the alleged offense for which Mrs. Estes was being tried, were immaterial. If Mrs. Estes illegally removed the children from Arkansas in August, a subsequent court procedure in a foreign jurisdiction could have no bearing on her defense.
POINT Y. The defendant was entitled to a directed verdict. Appellant argues that “everyone knew she was taking the children out of Arkansas before she picked them up.” She further states that at the time she obtained the children she intended to return them within the two-weeks period; and that a subsequent decision on her part not to return them would not bring her within the Act. The provisions of § 43-1121, insofar as they pertain to this case, are unambiguorrs. The stattute prohibits the taking of a child, by permission or otherwise, from the person having legal custody of the ward by virtue oP a decree of any chancery court, and removing the child beyond our State without first obtaining the permission of the court which fixed the custody. It cannot even be properly inferred that the court which fixed the custody and subsequently awarded the two-weeks visitation period had any knowledge of Mrs. Estes’ intent to remove the children beyond jurisdictional limits. Additionally, the grandmother who released the children to Mrs. Estes, testified that she was led to believe Mrs. Estes had been authorized by the court to take the. children out of the State, which of course was not true.
POINT YI. It was error to deny appellant’s requested Instructions. Appellant overlooks the fact that tlic jury verdict was set aside and she was convicted by the court sitting as a jury. Consequently the instructions were of no import.
Affirmed. | [
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George Pose Smith, Justice.
This is the second appeal in this case. Clark was charged with having raped his nine-year-old stepdaughter. At the first trial he was found guilty and sentenced to life imprisonment.
We reversed that judgment for two errors, one of which was the trial court’s refusal to give a requested instruction submitting to the jury the offense of carnal abuse, which under the testimony was a lesser offense included in the charge of rape. The court had submitted only the offense of rape, which was defined for the jury as the carnal knowledge of a female, forcibly and against her will. In reversing the judgment we held that if the child consented to the act the offense would be carnal abuse rather than rape. Clark v. Slate, 244 Ark. 772, 427 S.W. 2d 172 (1968). That holding is now the law of the case and controls subsequent proceedings. Mode v. State, 234 Ark. 46, 350 S.W. 2d 675 (1961), cert. den. 370 U.S. 909 (1962).
At the second trial the testimony was substantially the same as it had been at the first one. We summarized the xoroof in our first. opinion and need not set it forth a second time. • The jury again found the accused guilty of rape and again fixed his punishment at life imprisonment.
For reversal counsel for the appellant insist that at the second trial the court erred in including in its instructions to the jury the substance of a new statute, covering ■tlie offenses of rape and carnal abuse, that was not enacted until after the offense on trial was assertodly committed in 1966. Act 362 of 1967; Ark. Stat. Ann. 41-3401 and-3403 (Supp. 1967). The new statute subdivided the offense of rape (including carnal abuse) into three degrees, which were defined and made the subject of appropriate graduated punishment. The earlier statutes (§§ 41-3401 and-3406) were .expressly repealed, but they may be treated as remaining in force with respect to offenses already committed. See'Ark. Stat. Ann.- § 1-103 (Repl. 1956).
In the language of the new statute, as it might apply to this case, the trial court gave this instruction defining the three degrees of rape and declaring the permissible punishment for each degree:
The defendant in this case is charged with the crime of Rape in the First Degree. A male is guilty of Rape in the First Degree when he engages in sexual intercourse with a female who is less than 11 years of age. Any male upon conviction of First Degree Rape shall be imprisoned in the State Penitentiary from 30 'years to life.
A male is guilty of Rape in the Second Degree when he, being 18 years old or more, engages in sexual intercourse with a female less than-14 years of age. Any male found guilty of Second Degree Rape shall' be imprisoned in the State Penitentiary for not less than three nor more than 21 years.
A male is guilty of Rape in tlie Third Degree when he engages in sexual intercourse with a female or carnally abuses a female who is less than 16 years old. Any male who shall be convicted of Rape in the Third Degree shall be imprisoned in the State Penitentiary for not less than one year nor more than ten years.
We agree with the appellant’s insistence that the foregoing definition of first degree rape was, under the doctrine of the law of the case, more unfavorable to the accused than it should have been. On the first appeal we held that if the nine-year-old prosecutrix consented to the act of intercourse, the offense would be carnal abuse only, which was then punishable by imprisonment for from one to 21 years. But under the trial court’s definition of first degree rape the question of consent was absolutely immaterial. With respect to first degree rape the only issue for the jury was whether the accused had engaged in sexual intercourse with a female less than 11 years of age, with or without her consent. According to the undisputed evidence the prosecutrix was only nine years old on the date of the offense. The action of the jury in fixing the punishment at life imprisonment show's that the error may have been prejudicial.
The error, however, does not automatically entitle the appellant to a new trial. By its verdict the jury found that the accused had in fact had intercourse w'ith his nine-year-old stepdaughter. Under our opinion on the first appeal he was therefore guilty of carnal abuse, whether or not the prosecutrix consented to the act. It will be seen by comparing the new statute with the old one that the definition of third degree rape is precisely the same as the former definition of carnal abuse. The only difference is that the legislature has reduced the punishment to a maximum of ten years imprisonment, vdtich of course it may do even after the commission of the offense. State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600 (1870).
Thus the trial court’s error had no bearing upon the jury’s determination of guilt or innocence. It affected only the extent of the punishment to be imposed. In that situation we have a choice among several corrective measures. We may, depending upon the facts, reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally. Several of the cases were discussed in Bailey v. State, 206 Ark. 121, 173 S.W. 2d 1010 (1943).
Here we think it best to follow the course that we adopted, upon essentially similar facts, in Threat v. State, 110 Ark. 152, 161 S.W. 139 (1913), where we said:
For the errors indicated the judgment must be reversed; but as the jury has found by its verdict that appellant did have sexual intercourse with Gertie Hollingshead, and as it is undisputed that she was at the time under the age of sixteen years, and that the appellant is therefore guilty of the crime of carnal abuse, the State may elect, if it sees proper to do so, to have the defendant brought into the court below to be there sentenced for that crime. Unless such election shall be made in fifteen days, the cause' will be remanded for a new trial.
That disposition of the case enables us to take advantage of the trial judge’s superior knowledge in fixing an appropriate punishment — in this instance between one and ten years imprisonment.
Reversed.
Eooleman, J., concurs. | [
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Conley Byrd, Justice.
The issue on this appeal is whether a ‘ ‘ buyer in the ordinary course of business ’ ’ of an automobile from a dealer takes title superior to that of tlie repossessin lien creditor who had stored the automobile with the dealer.
The record shows that:
1. Cox Brothers Co. Inc., an automobile dealer, on June 21, 1965, sold a 1965 Pontiac to William White.
2. 'William White, through Cox Brothers, financed the automobile with appellant Commercial Credit Corp., with Cox Brothers being an indorser with recourse. The certificate of title issued by the Motor Vehicle Division of the Revenue Department of the State of Arkansas was issued on July 12, 1965. The certificate of title, properly showing Commei’cial’s lien, was forwarded by the Motor Vehicle Division to Commercial where it has remained until trial of this suit.
3. In March of 1966, "William White traded the Pontiac to Cox Brothers in exchange for another automobile. Thereafter Cox Brothers transferred the caito Bobby Reagan, who with Commercial’s acquiescence, assumed White’s obligation to Commercial.
4. October 14, 1966, Commercial, through its Memphis office and for reasons not shown by the record, took possession of the car from Reagan.
5. Under date of October 16, 1966, the certificate of title in possession of Commercial was endorsed by someone in the Memphis office to show that Commercial’s lien on the car had been released.
6. October 20, 1966, Commercial stored the Pontiac with Cox Brothers and returned its file to its Little Rock office. Cox Brothers upon receipt of the automobile executed a storage agreement acknowledging that it had no authority to sell the automobile.
7. From October 10, 1966 to February 28, 1967, Commercial, from an unknown source, received five monthly payments on the financing agreement held by it.
8. On December 5, 1966 someone forged the names of "William White and John Bailey, one of Commercial’s agents, to an application to the Motor Vehicle Division for a duplicate title. The Motor Vehicle Division issued the duplicate title, as authorized by Ark. Stat. Ann. § 75-145 (Repl. 1957), and forwarded the same to Cox Brothers in accordance with the directions contained on the application.
9. Under date of December 7, 1966, Commercial’s lien, on the duplicate title, was shown as being released through the forgery of the name of John Bailey as an agent of Commercial.
10. During December 1966, Appellee, Associates Discount Corporation came into possession of the duplicate title, in its forged condition, through a floor plan financing arrangement with Cox Brothers.
11. February 16, 1967, Don Chaney and his wife Joy purchased the Pontiac from Cox Brothers by giving a $400 post dated check and financing $2,000 with Associates Discount. The post dated check was picked up March 5, 1967.
12. March 7, 1967, Associates Discount and Commercial discovered that they held duplicate liens on the Pontiac and other vehicles.
13. Associates Discount filed its lien with the Revenue Department on March 29, 1967.
14. Commercial brought this action on May 8, 1967.
15. Mr. George Fell, Jr., Commercial’s district manager, assumed that Cox Brothers kept a number of repossessed automobiles on its premises and stated that Commercial checked vehicles stored by it with Cox at least every 30 days. Commercial’s policy was that it preferred that the cars oil which Cox was an endorser, be paid for when delivered, but if Cox didn’t pay off when the car was delivered, a signed storage agreement was accepted. His testimony with reference to Commercial’s practice was as follows:
Q. Air. Fell, your company actually had physical possession of this ear before turning it over to Cox, didn’t you?
A. That’s right.
Q. Now regardless of what that storage agreement says, you do admit, do you not, that if Cox sold his automobile and gave you this money you would have accepted it, and the only thing you are griping about is the fact that he did not give you the money?
A. As I stated, if Cox had brought the money to pay the account off, I would have accepted it, but I still have the certificate of title.
Q. You wouldn’t have turned over the certificate of title until you got the money, but you wouldn’t stand in the way of his selling the car?
A. Normally, a man has to check with our office first, but if a man has already sold it, I would have accepted it.
Q. As a matter of fact, wouldn’t there be a chance the only way he could get the money, the dealer, is to sell that automobile if he was otherwise broke ?
A. He couldn’t pay me.
Q. Unless lie sold it?
A. Yes Sir.
16. Mr. Chaney testified that Cox Brothers bought the license for him — that he left the registration of the car up to Cox Brothers. He had never received title to any ear that he purchased and financed until it was paid off. He understood that Cox Brothers was going to take care of the title details, —that he was relying on them to do so.
17. John L. Bowen, a new and used car salesman with seven years experience, testified that it 'was common practice for a dealer to make the filings of title with the Revenue Department as a customer service. Yaughan-Hicks, his employer, employed two women just to handle the certificates. He also stated that there was nothing unusual about a dealer selling a used automobile prior to receiving the certificate of title.
The trial court found that “Don Chaney and Joy Chaney purchased said automobile from an authorized dealer and were bona fide purchasers for value,” and awarded possession of the automobile to Associates. For reversal Commercial relies upon the following points:
I. That the court erred in finding Don Chaney et ux were purchasers in good faith.
II. The court erred in finding that Associates was a holder through a purchaser in good faith; and
III. That Associates is estopped to claim a prior lien by its owm neglect and by its failure to perfect its lien prior to acquiring actual knowledge of Commercial’s lien. For affirmance Associates takes the position that Commercial was an “ENTRUSTER” within the meaning of the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-403 (2) and (3) (Add. 1961), and that since it entrusted the repossessed automobile with Cox Brothers, a recognized dealer, the Chaneys are protected as buyers in the ordinary course of business.
Commercial’s basic arguments are premised upon the theory that it is a lien holder pursuant to Ark. Stat. Ann. § 75-161 (Repl. 1956); that Cox Brothers was Channeys’ agent in securing the title; and that subsections (2) and (3) of Ark. Stat. Ann. § 85-2-403 (Add. 1961) are not applicable to the transactions here involved.
The registration of motor vehicles and issuance of certification of titles thereto are governed by Acts 1949, No. 142 (Ark. Stat. Ann. §§ 75-101 thru 75-191 [Repl. 1957 and Supp. 1967]) as amended. Section 75-149 requires a purchaser or transferee, before operating a vehicle, to obtain the registration within five days and requires the transferee to obtain a new certificate of title. Section 75-150 requires the dealer to execute and acknowledge the assignment of title upon the certificate and to deliver it to the purchaser. Section 75-151 recognizes that the owner’s title or interest may pass without a voluntary transfer by operation of law, as in the case of a repossessing lien holder, and recognizes the transfer of a vehicle without the certificates of title upon “...such instruments or documents of authority or certified copies thereof as may be sufficient or required by law to evidence or effect a transfer of title or interest in or to chattels in such case .. . .”
Section 75-360 in part provides:
“No conditional sale contract, or title retention instrument upon a registered vehicle, other than a lien dependent upon possession, is valid as against the creditors of an owner acquiring a lien by levy or attachment or subsequent purchasers or encumbrances with or without notice until the requirements of this article [§ 75-160, 75-161] have been complied with.
Section 75-161 provides:
(A) Such filing and issuance of a new certificate of title as provided in this article (75-160, 161) shall constitute constructive notice of liens and encumbrances against the vehicle described therein to creditors of the owner, to subsequent purchasers and encumbrancers, except such liens as may be authorized by law dependent upon possession. In the event the documents referred to in Section 62 (75-162) are received and filed in the Central Office of the department within 10 days after the date said documents were executed, the constructive notice shall date from the time of the execution of said documents. Otherwise constructive notice shall date from the time of receipt and filing of such documents by the department as shoiun by its endorsement thereon. (Emphasis supplied.)
(B) The method provided in this article of giving constructive notice of a lien or encumbrance upon a registered vehicle shall be exclusive except as to liens dependent upon possession and any said lien or encumbrance or title retention instrument filed as herein provided and any documents evidencing the same are hereby exempted from the provisions of the law which otherwise require or relate to the recording or filing of instruments creating or evidencing title retention or other liens or encumbrances upon vehicles of a type subject to registration hereunder.
In House v. Hodges, 227 Ark. 458, 299 S.W. 2d 201 (1957), we held that a certificate of title is not title itself but only evidence of title. In so doing we pointed out that the motor vehicle act only makes it a misde meanor for a purchaser not to promptly obtain a title —i.e., the failure to obtain a new certificate of title does not affect a transfer between parties.
Commercial’s repossession of the vehicle here in question, of course, was authorized by the Uniform Commercial Code, Ark. Stat. Ann. § 85-9-503 (Add. 1961) and furthermore Commercial was authorized and expected to sell the same at either public or private sale by terms of Ark. Stat. Ann. § 85-9-504 (Add 1961). Thus the trial court could find that, under the state of this record, Commercial was lawfully in possession of the automobile, Ark. Stat. Ann. § 85-9-503, with right to sell the same at private sale, Ark. Stat. Ann. § 85-9-504, without the necessity of a certificate of title, upon “...such instruments or documents of authority or certified copies thereof as may be sufficient or required by law to evidence or effect a transfer of title or interest in or to chattels in such case .... ”
The Uniform Commercial Code, Ark. Stat. Ann. § 85-2-403 provides in part as follows:
“(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business.
“(3) ‘Entrusting’ includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless oí whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.
“(4) The rights of other purchasers of goods and of lien creditors are governed by the Articles on Secured Transactions (Article 9, [§§ 85-9-101-85-9-507]) ....”
Section 85-9-307 provides:
“(3) A buyer in ordinary course of business ... takes free of a security interest (created by his seller) even though the security interest is perfected and even though tire buyer knows of its existence.”
Section 85-1-203. (9) provides:
“ ‘Buyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind....”
Commercial contends that the terms “¡entrustment” and “entruster” apply only to inventory financing, and that its rights here as a “lien creditor” were specifically removed from subsections (2) and (3) of § 85-2-403 by subsection (4) which in turn places lien creditors under § 85-9-307. Commercial then contends that the Chaneys cannot take free of its lien under § 85-9-307 (1) because its lien was not created by the Chaneys’ seller.
We do not agree with Commercial’s theory that its rights as a lien creditor with respect to repossessed property have been removed from subsection (2) and (3) of § 85-2-403. It clearly had possession with the right to transfer title without a certificate of title, and as pointed out by the committee comment, has no right to complain, whether it be considered as a consignor or a lender with a. security interest, for the very purpose of placing goods in inventory is to turn them into cash by sale. Therefore, we think that the entrustment of possession is most applicable to a repossessing lien holder with right of sale.
Commercial also contends that the Chaneys made Cox Brothers their agent for purpose of acquiring title and tliai the Chaneys are therefore charged with the knowledge that Cox had of the forgeries. The record does not support Commercial's premise on this assertion.
~\Yhi]p, as pointed out above, Act 142 of 1949 originally contemplated that the purchaser would be responsible for securing the certificate, it has become apparent in practical application that dealers who assign conditional sales contracts with recourse have a financial interest in seeing that the conditional sales contract is promptly filed and noted on the certificate of title — for instance, In re Shiflet, 240 F. Supp. 183 (Ark. 1965), whore the conditional sales contract lien was lost because the purchaser neglected to apply for his title before becoming bankrupt. Therefore when the dealer’s interest in prompt filing is considered in connection with the evidence of Cox’s conduct in obtaining the registration and certificate of title, we are unable to say that there was no substantial evidence to sustain the frial court’s finding on the issue.
'Under point two Commercial argues that Cox’s knowledge of the defective title should be imputed to Associates since the latter was furnishing Cox the necessary forms, advice, relying upon Cox to acquire credit information and was actually making Cox’s sales possible by financing sales. This contention is not supported by the record. The only thing shown by the record is that- the Chaneys’ financial arrangements with Associates was made on a form furnished by Associates.
Commercial next contends that since Associates did not perfect its lien within ten days after its execution nor before it had actual knowledge of Commercial’s claim, Associates is not now in a position to contend that its lien has priority. The record shows that Associates’ lien was perfected before suit was filed and under such circumstances its priority must staud or fall upon the validity of the Chaney’s purchase. Since we have found that the purchase by Chaneys is protected under the law, we find this contention to be without merit.
It has been suggested that the entrustment doctrine should not be applied to used automobiles because a buyer in the ordinary course of business should know that a certificate of title is outstanding. This was suggested, by way of dictum in Sterling Acceptance Co. v. Grimes, 168 A. 2d 600 (Penn. 1961). However, we need not decide the issue at this time because here Commercial fits into one of the few categories under our law where a transfer is authorized without a certificate of title.
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Frank Holt, Justice.
Appellee’s decedent, 68 years of age, entered into two contracts with the appellant for the purpose of securing lifetime housing and medical services at the Concordia Life Care Center owned by the appellant. One contract was entitled ‘ ‘ Care Agreement’ ’ and the other, “Contract for the Sale of Life Estate in Living Unit.” Approximately six weeks prior to his death, the decedent delivered to appellant a written notice of cancellation of the Contract for Sale specifically citing Paragraph 5. The notice of cancellation and termination of occupancy was to be effective on the date of delivery. Following the decedent’s death, appellant refused to comply with appellee’s request on behalf of the decedent’s estate for a refund of a percentage of the original purchase price in accordance with the notice and the terms of the contract. In refusing the request, appellant cited Paragraph 16 (d) of the Care Agreement which required a resident to give 120 days’ notice of cancellation of that contract. Appellant took the position that this cancellation provision also governed by reference the cancellation of the Contract for Sale. Therefore, the effective date of the termination was 120 days from the date of the written notice to cancel the Contract for Sale. Further, since the decedent died prior to the expiration of the 120 days’ notice, the contract was terminated by his death and no refund was due according to the provisions of the Contract for Sale. Upon a review of the evidence, including the two contracts, the trial court, sitting as a jury, ruled that the cancellation notice of the sale contract was effective upon delivery and the appellant was obligated to repurchase the life estate as provided in the contract.
The only issue presented by this appeal is whether the 120 days’ notice provision in the Care Agreement also governed the cancellation of the Contract for Sale. Appellant argues that the contracts should be treated as a single agreement; that Paragraph 5 (A) of the Contract for Sale merely sets out the formula for the repurchase price in the event the contract is cancelled pursuant to Paragraph 16 (d) of the Care Agreement; and that the Contract for Sale can be unilaterally terminated only upon 120 days’ written notice by the resident. Therefore since the notice to cancel was not effective when given, there was no substantial evidence to support the trial court’s ruling. Appellee responds that the provisions in the contracts governing cancellation are confusing and ambiguous and, consequently, should be construed most strongly against the drafter, namely, the appellant. The lower court, therefore, correctly ruled that the Contract for Sale was cancelled upon delivery of the written cancellation notice.
The Care Agreement provides in pertinent part:
16. TERMINATION OF AGREEMENT. This agreement shall be terminated as follows:
(a) Upon death of Resident. . . .
(d) By Resident, by serving on Corporation one hundred twenty (120) days written notice of his desire to do so; but in such case, Resident’s contract shall not terminate until the end of 120 days except by mutual agreement in writing of Corporation and Resident. The Resident will be charged with such amounts as will cover other expenses incurred in connection with any repairs or replacement of the property of Corporation caused by the Resident. The Resident shall be obliged to sell his Life Estate in said Living Unit to the Seller at the price as set forth in Paragraph 5 (A) of the Contract for the Sale of Life Estate in Living Unit, referred to in Paragraph 1 hereof. Payment of the repurchase price shall be made within 120 days of the termination date.
In the event this contract is terminated, Corporation shall be entitled to all unearned portions of the Maintenance Fee.
The Contract for Sale Agreement reads in pertinent part:
5. (A) In the event Buyer desires to terminate his occupancy, Care Agreement or his interest in said Living Unit, Seller shall be obliged to repurchase the Life Estate in said Living Unit and Buyer shall be obliged to sell his Life Estate in said Living Unit to Seller as follows:
(1) On the day which the premises are made available to the Buyer for his occupancy and during the remaining days of that same calendar month, the repurchase and sales price shall be eighty (80) percent of the original sales price.
(2) Each calendar month thereafter, the repurchase and sales price shall decrease by three-fourths (3/4) of one (1) percent for the next one hundred (100) months.
(3) Thereafter, the repurchase and sales price shall be five (5) percent of the original sales price.
(B) In the event the Seller (other than for reasons stated in Paragraph 4 hereof) terminates Buyer’s Care Agreement, Seller shall be obliged to repurchase the Life Estate in said Living Unit and Buyer shall be obliged to. sell his Life Estate in said Living Unit to Seller in the same manner as setforth in subparagraph 5 (A) above.
(C) In the event of the death of one of the holders of the Life Estate, the monthly maintenance fee will be adjusted to the current single rate for a comparable unit for the surviving occupant. Upon the death of either a single occupant or of the surviving occupant, as the case may be, both this Contract and the Cafe Agreement shall automatically be terminated, and the Living Unit shall revert to the Seller.
The contracts were executed on the same day, were part of the same transaction, and were designed to provide an integrated program of housing and medical care.for the decedent and other residents. Paragraph 1 of the Care Agreement provides that no legal obligations are created pursuant to the agreement until the parties sign the separate Contract for Sale, and that the Contract for Sale is incorporated by reference. Similarly, Paragraph 8 of the Contract for Sale provides that if the parties do not enter into the Care Agreement, the Contract for Sale is cancelled. In view of these provisions, we agree with the finding of the trial court that the contracts were incorporated by reference. However, when there is uncertainty or ambiguity in a contfact or contracts and they are susceptible to more than one reasonable construction, then we must construe them most strongly against the party who drafted them, the appellant here. Barton v. Perryman, 265 Ark. 228, 577 S.W. 2d 596 (1979); Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405 (1976); Prepakt Concrete Co. v. Whitehurst Bros., Inc., 261 Ark. 814, 552 S.W. 2d 212 (1977). Further the drafter of a docu ment is in a better position to convey a clarity in meaning by its choice of phraseology and words, and if there are any uncertainties, they will be construed against the drafter of the form if the language bears more than one reasonable meaning in its interpretation. Hall v. Weeks, 214 Ark. 703, 217 S.W. 2d 828 (1949); and Pate v. Goyne, 212 Ark. 51, 204 S.W. 2d 900 (1947).
Here, tested by these standards, we hold there is substantial evidence to support the court’s findings that if a buyer were required to give 120 days’ notice of his desire to terminate the Contract for Sale, Paragraph 5 (A) (1) and part of 5 (A) (2) would be “meaningless”, and that if the 120 days’ notice governed termination of both contracts, the third sentence of Paragraph 16 (d) would be “totally unnecessary”. This is a reasonable construction even though we treat the contracts as a single instrument. The appellant, the proponent of the contracts, was in a better position to prevent any ambiguities by easily expressing its intent in plain English by reiterating the 120 days’ cancellation notice in the cancellation provision of the Contract for Sale. The written notice of cancellation submitted by the decedent effectively cancelled the Contract for Sale on the date of delivery.
Since there was no notice of cross-appeal by the appellee, we do not consider the issues presented therein.
Affirmed on direct and cross-appeal.
Fogleman, C.J., dissents. | [
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Carretón Harris, Chief Justice.
This appeal concerns a bank robbery. On the morning of September 27, 1967, a little after 10:00 o’clock, the Bank of Lockesburg, Lockesburg, Arkansas, was robbed by a lone gunman. As he entered the bank, this man pulled a ladies’ stocking over his face, directed bank employees and customers to lie down on the floor, and told R. C. Norwood, president of the bank, to open the safe. Mrs. R. C. Norwood, also a bank employee, asked if she would be permitted, rather than her husband, to open the safe, and upon receiving a reply in the affirmative, opened it, and, together with the robber, took money, which he placed in a sack having the appearance of a large pillow case. The amount taken was $12,814.00. Thereupon, the gunman ran out of the bank, and drove off in a 1966 blue Ford sedan in a northerly direction. Officers in the area were alerted, and road blocks and other measures were effected in an effort to secure the capture of the robber. In less than an hour, Ronald Steel, his wife, Boris Steel, brother, Carson Steel, Jr., and Boyce McCary were arrested in connection with the holdup. All were subsequently charged with robbery , - and on trial appellants were found guilty by a jury. The two brothers were given 15 years imprisonment, and Boris Steel was given 5 years imprisonment. From the judgment so entered, appellants bring this appeal. Several points are urged for reversal, and we proceed to discuss these contentions, though not necessarily in the order listed.
First, the sufficiency of the evidence to sustain the convictions is questioned. In chronological order, the facts developed were as follows:
Bobby Friday operated an Esso service station at Lockesburg, the station being located across the street from the bank. Mrs. Bessie Dowdle, who had apparently left her automobile at the station while she went to the bank, returned and told Friday that the bank was being robbed . As she was telling Friday of the occurence, he heard the squeal of tires, looked up, and saw a 1965 or 1966 light blue Ford being driven away. Friday endeavored to get the license number, and testified that the car sped away heading north on Highway 71 . The witness only observed that someone was driving the car, and he saw no one else standing around the bank.
Louis Hilton, Sheriff of Sevier County, on September 26 received a report that a 1966 Ford with Sevier County tag No. 56-2321 had been stolen from the rubber plant in DeQueen. About 10:15 or 10:20 A.M. on the 27th he received the report of the bank robbery, and also information about the blue 1966 Ford. The sheriff started for Lockesburg in his automobile, and Carroll Pag.e of the Arkansas State Police left at the same time as the sheriff in a separate automobile. While traveling Highway 71, between DeQueen and Lockesburg, Hilton observed a tan 1965 Pontiac automobile parked on a crossroad on the west side of 71, about 100 yards from the highway. The sheriff drove over to the car, stopped, and inquired of the occupant, a young woman, if she needed help. She said that she did not, and when asked what she was doing there, replied that she was waiting on her husband. The woman gave her name as Doris Steel, and stated that her husband had told her to wait there and he would be back in a few minutes; she did not know where he had gone, but said he was in a pickup truck, and would be back shortly. According to the sheriff, Mrs. Steel was dressed in blue jean shorts, a blue jacket with the word, “Alaska,” written on it, and was barefooted.
Louis Graves, publisher and editor of the newspaper at Nashville, Arkansas, drove up to where the sheriff and Mrs. Steel were talking. It developed that Page also, while traveling on the highway, had observed the Pontiac parked on the side road, and the state officer liad requested Graves (upon meeting the latter on the highway), to “check it out” for him. While talking, they heard a vehicle approaching. From the sheriff’s testimony:
“* * * As I was talking to Mrs. Steel, there was a pickup truck started down this same road, and I heard the pickup truck’s brakes, when he applied his brakes. There was some loose gravel on this part of the pavement. I heard that and I looked up and saw the pickup was headed in the direction of where we were at, and it immediately backed up and turned around and headed north.”
He said that he could tell that three people were in the pickup, and he immediately started in pursuit, asking Graves if he would remain there with Mrs. Steel until he returned. Describing events, the sheriff continued :
“Well, I was in pursuit. The car -went on north on 71 until it came to a dead-end road, which goes up to Mr. Bradshaw’s residence. The pickup turned up that road. * * *
“After I got on to 71, I saw the pickup, and then the pickup dropped out of sight for, oh, I’d say a few seconds. * * *
“ * * * After I got to the point where I had seen the pickup last, I could see on this straight stretch for possibly a mile or a mile and a half, and it wasn’t there. I knew about this road, and as I got to this road I felt it had turned up that way, and when I looked up the road, I saw the pickup on the Bradshaw road.”
When the officer turned up the road, the pickup “took off real fast.” The sheriff continued behind, blowing his horn, endeavoring to persuade the driver of the truck to stop, and then held his rifle out the window and fired into the air. The truck then stopped, approximately 150 yards from a private drive leading to the home of William Henry Bradshaw. The sheriff directed the occupants of the pickup to get out of the truck with their hands up, and further directed them to lie on the ground face down. About that time, Bradshaw, having heard the shot, came to the scene, and the sheriff had Bradshaw hold the gun while he (the sheriff) searched the three occupants of the truck. No comprehensive search of the vehicle was made at that time, though Hilton testified that he looked in the bed of the pickup, saw two pistols lying in a cardboard box, reached in and got the weapons, and found that they were loaded. He subsequently obtained a search warrant for the pickup, and also a search warrant for the Pontiac automobile occupied by Mrs. Steel. The three men in the pickup were appellants, Ronald and Carson Steel, Jr., and Dovce McCary. When the sheriff walked a short distance down the road, looking over the area in furtherance of his investigation, Bradshaw heard Ronald Steel say, “Now that they’ve got us, what are we going to do?” McCary told Steel to keep his mouth shut. The three were driven back to Loekesburg by Bradshaw in the pickup, with the sheriff following. Upon arriving there, they were taken to the bank. In the meantime, Graves had brought Mrs. Steel to the bank.
There, Mrs. Norwood, and some others who were in the bank at tlie time of the robbery, were present. Mrs. Norwood testified that she was not asked to make an identification, and she did not volunteer an identification. No one identified the man who had held them at gunpoint when the robbery took place . Statements were taken from the two Steel brothers about 11:15 A.M. after they had signed waivers and acknowledged that they had been advised of their constitutional rights. Both steadfastly maintained that they were not guilty of robbing the bank. Later on in the day, Ralph Rawlings, a special agent with the F.B.I., interviewed Ronald and Carson Steel at the County Jail in Nashville, and talked with Mrs. Steel at the sheriff’s office in DeQueen. The officer testified that he explained to each appellant his or her rights, and further presented each with a written statement of rights, and a waiver form, which he also explained. The special agent tesified that all voluntarily signed the waiver. Rawlings said that all stated they could read, and, before signing, they were advised that they were being investigated for the robbery of the bank. None.of the appellants signed any statement as to his or her activities, and none asked for the services of a lawyer, but they did orally answer questions. Ronald Steel related that he and his wife, on September 26, were at his mother’s home near Broken Bow, Oklahoma; that they went to the home of Doyce McCary at Wright City, Oklahoma, finding Carson Steel, McCary’s wife, and another woman there. After staying a while, Ropald and his wife returned to Broken Bow, remaining at the mother’s during the night; the next morning, Carson Steel and McCary came to the home in McCary’s pickup truck. All four then left in two vehicles, Ronald and Doris being together in the Pontiac, and McCary and Carson Steel traveling in the Ford pickup. Ronald said that the reason for the trip was to go deer hunting. The officer called attention to the fact that it was not deer season, and that appellant did not have a rifle or shotgun, but Ronald replied that lie was going to shoot deer with his pistol (a snub-nose). According to this appellant, the purpose in turning down the road (where the appellants were apprehended by the sheriff) was to ask a man about purchasing a dog.
Carson Steel related that he had spent the night of September 26 at the home of McCary and Mrs. McCary, but said (contrary to Ronald) that they had no visitors. He stated that he and McCary drove the next morning to Broken Bow, stopped at his mother’s home, and there joined Ronald and Doris. According to this brother, ■he and Doyee left first in the pickup truck; the purpose in going' to Lockesburg was to find some coon dogs. They met Ronald and his wife about 9:30 A.M., and the brother got into the truck with them, leaving the wife where they had parked the automobile. He was unable to name anyone that they contacted about dogs.
Doris Steel related that she and her husband had visited McCary and his wife on the night of the 26th and had returned to the mother’s home at Broken Bow, where they spent the night. She said that Ronald had told her she could go deer hunting with them the next day, and she and her husband left home and were joined by McCary and Carson in Lockesburg. She told the officer that the men would not let her go deer hunting with them because she had forgotten her shoes.
As previously stated, search warrants were obtained, and both the pickup truck and Pontiac automobile were searched. The only items found in the pickup truck (outside of the two pistols) that could have any bearing on the robbery were a white homemade pillow ease and a new handkerchief which was knotted. The only item found in the Pontiac that could be considered relevant to the crime was one ladies’ stocking.
The 1966 blue Ford automobile with the license No. 56-2321 was found about six miles west of Lockesburg, 160 paces north of Highway 24, but appellants were nevei' connected with this automobile. A light, blue 1963 Chevrolet automobile was found in the Tower Road vicinity the morning of the robbery, which bore a fictitious Oklahoma license . This car was apparently found about six miles from Lockesburg, but appellants were never connected with this vehicle. About a mile and a half from where this car was found, the officers located a spot where the road had been washed out and traffic could not go farther. From impressions, it was obvious that two motor vehicles had been parked close together, one having road grip tires used on automobiles, and the other bearing a type usually used on pickups; the area had the appearance of several people having stood between these vehicles. Richard O’Connell of the F.B.I. picked up a paper tag which has been torn off a piece of material. The tag read, “100% Cotton RN 14240.” The officer placed this in an envelope, and it was subsequently sent to the F.B.I. laboratory in Washington. Cigarette butts were found and also a bare heel print.
William S. Oberg, a document examiner employed at the F.B.I. laboratory in Washington, testified that he made an examination of the label found by Officer O’Connell, and the handkerchief found in the pickup truck. After explaining in detail how the examination was conducted, Oberg testified that the label had originally been attached to the handkerchief taken from the truck. A small part of the paper tag had remained on the handkerchief. From the testimony:
“The outline portion of State’s Exhibit No. 3 [label] matches the torn outline of the paper on State’s Exhibit No. 10 [handkerchief], and as a result, I concluded that State’s Exhibit No. 3 was derived from State’s Exhibit No. 10, that at one time they were part and parcel of the same thing” .
On cross-examination, Oberg repeated his conclusions rather emphatically.
Lawrence Dinger, who lives a few miles from DeQueen, was formerly a resident of Bartlesville, Oklahoma. He testified that he saw Ronald Steel in November, 1967, at a tavern near Broken Bow, Oklahoma, and which was owned by an uncle of the Steel boys. Dinger said that Ronald Steel was talking to an acquaintance of Dinger named 'William Allen, and that, as he (Dinger) walked up to the two men, he heard Ronald Steel say to Allen, “The money is buried and we haven’t touched a dime of it.”
It is true that most of the evidence was circumstantial, but we think the circumstances, when taken together, constitute sufficient evidence to sustain the convictions. No evidence was offered on behalf of appellants of why they made the trip from Oklahoma to Lockesburg — what they did after arriving at Lockesburg — why the men fled from the sheriff, and would not stop the pickup — why Doris Steel was sitting alone in the Pontiac —or why only one stocking was in the car. Of course, the jury probably did not consider the explanation given to the officers as credible. Deer hunting — out of season — without dogs — and with pistols — could hardly be called a plausible or reasonable explanation of appellants’ actions prior to their arrest. The testimony of William Henry Bradshaw stood uncontradicted, and though no positive identification was made, Mrs. Nor-wood, at the trial, pointed out Ronald Steel as the man, in her opinion, who robbed the bank, stating, “Well, in my own mind I think so.”
It is contended that the constitutional rights of these appellants were violated, and several federal cases are cited in support of tliis contention. It is asserted that a line-up occurred at the bank when appellants were taken there after the robbery. The United States Supremo Court has held several times that a suspect is entitled to counsel, unless waived, when he is confronted by witnesses for an out of court identification. United States v. Wade, 388 U. S. 218, Stovall v. Denno, 388 U.S. 293, Gilbert v. California, 388 U.S. 263. We find no violation of the rule set down in those cases. Mrs. Nor-wood stated that she was not asked to identify any of the appellants as the robber, and no out of court identification was made. Actually, the evidence of the confrontation was elicited by appellants during cross-examination of Mrs. Norwood as a matter of testing her credibility relative to her remarks made on the witness stand as to identification of Ronald Steel.
It is argued that the testimony of Bradshaw constituted error. We do not agree. The statement of Ronald Steel was a spontaneous and voluntary statement, and was made at a time when he was not being interrogated. We have held such statements admissible. Turney v. State, 239 Ark. 851, 395 S.W. 2d 1.
It is urged that the search of the pickup truck by the sheriff at the time of apprehending the appellants was illegal. We find no merit in this contention. The sheriff, of course, was entitled to search the truck, if the arrest were lawful. Under the circumstances, it clearly appears that the officer had reasonable grounds to believe that the appellants had committed a felony, and the search was therefore incident to a lawful arrest. The bank had just been robbed, and the occupants of the pickup truck were very clearly fleeing, and endeavoring to get away from the sheriff. Not only that, but, according to his testimony, the two pistols in the pickup were in clear view.
Appellants also question the validity of the search warrants, but no objection on this basis was made at the time of the introduction into evidence of the property taken from the vehicles, nor was any motion made to suppress this evidence. In Moore, Frazier, Davidson v. State, 244 Ark. 1197, 429 S.W. 2d 122, we held that the burden of proving the invalidity of a search warrant rests on the defendant, and if it is contended that the warrant is not valid, the affidavit and warrant in support of a motion to suppress should be produced. Objection was made to the introduction of articles found in the vehicles as being immaterial and irrelevant, but we have already pointed out that some articles were relevant, and certainly there was no prejudice in the presentation of articles (mostly clothing) which failed to connect appellants with the crime.
It is asserted that the holding in Gideon v. Wainwright, 372 U.S. 335, was violated, but this assertion is erroneous, as an attorney was appointed by the court to represent these appellants. The argument itself is really directed to a contention that the appointed counsel did not furnish adequate representation. Prom the brief:
“An additional problem on the appointment of counsel simply cannot be avoided. The appointment of counsel of experience is important. This Court has judicial knowledge of the experience of the Court appointed lawyer who had not been long in practice, never appealed a case.”
The record does not reflect whether this attorney had appealed a criminal case, but appellate practice would hardly seem to be as important as experience in trial practice. This phase of his practice is not shown, but tlie experience or ability of appointed counsel is not so important in this case as it might be in others, since appellants were also represented by an Oklahoma attorney. "When defendants are represented by counsel of their own choice, they are hardly in a position to complain that court appointed counsel was inadequate. Pres ent counsel intimates that the Oklahoma attorney was not qualified to represent these appellants because he was not a member of the Arkansas Bar. We very quickly disagree — but of course, an accused person is entitled to retain whomever he desires to represent him.
It is argued that the requirements of the rule established in Miranda v. Arizona, 384 U.S. 436, were not complied with. We find no merit in this allegation. While none of the appellants testified before the jury, all three testified before the court in chambers relative to the statements. Ronald said that he was not advised of constitutional rights, though he admitted reading the waivers. Carson said that he had already made some statement before signing the waiver. Doris said that she was nervous and couldn’t comprehend the meaning of the waiver. The court held that the statements were voluntarily made after appellants were advised of their constitutional rights and this finding is supported by the weight of the evidence.
As heretofore pointed out, the state’s proof reflected that ¡each appellant was handed a waiver which set out the constitutional rights enumerated in Miranda; each read the instrument, and each voluntarily signed the waiver. No complaint is made about the federal waiver, other than it is not in harmony with the one given by the state, and counsel argues that appellants were given conflicting advice. We find no conflicts. The state waiver reads as follows:
“Before we ask you any question, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. You have the right to the advice and presence of a lawyer even if you cannot afford to hire one. We have- no way of giving you- a lawyer, but one will be appointed for you, if you wish, if and when you go to cour . If you wisli to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop at any time until you talk with a lawyer.
WAIVER
“I have read the statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.”
This waiver is practically identical with the one used by federal officers, except for the italicized sentence .
It is apparently appellants’ contention that this sentence precluded the warning from being valid. It will be noted, however, that appellants were advised that they could remain silent; that anything they said could be used against them in court; that they had the right to talk to a lawyer before being asked any questions, and the right to have that lawyer with them during questioning. They could not have been more clearly told that they had the right to infuse to make any stat em en ts whats o ever.
It is asserted that error was committed by using a witness whose name had not been listed as one who would testify3' for the state. This allegation has reference to the testimony of Lawrence Dinger. On January 24, the court had directed the prosecuting attorney to advise appellants of witnesses that he planned to use, but according to the state, it was not known at that time that Dinger would be a witness, and the prosecuting attorney subsequently stated (at a hearing on a motion for new trial) that counsel were notified of any new witnesses as soon as they were known, or subpoenaed by the state. Ark. Stat. Ann. § 43-1004 (Repl. 1964) recluiros that the names of all witnesses, who were examined prior to the finding of an indictment, should be written on the indictment. In Baker v. State, 215 Ark. 851, 223 S.W. 2d 809, we held that, assuming, though without deciding, that this provision is applicable to informations, the requirement is merely directory. It might be pointed out that, though a continuance was asked for on other grounds (not argued as reversible error), no statement of surprise was made by defense counsel, nor any motion made for a continuance, when Dinger was called to the witness stand. It is also argued that defendants’ counsel was unable to obtain any information from the federal officers with regard to the testimony they would present at the trial. On the day of trial, an oral motion was made to strike all witnesses who were not listed in the bill of particulars, and to exclude all F.B.I. and state reports. The court overruled the motion, but stated that it would give counsel all the time required to talk to any and all witnesses prior to their testifying. The prosecuting attorney was also directed to furnish counsel with a copy of any reports that he planned to introduce. It is argued that the Jencks Act, 18 U.S.C.A., Section 3500, was violated. In the first place, that act only applies to criminal prosecutions brought by the United States, and in the next place, there is no requirement that the statement of any witness called by the government bo given counsel for defense until after that witness has testified on direct examination.
It is asserted that the trial court did not admonish the jury that the statements of Bradshaw could not be considered as against Doris Steel, and did not grant a severance, and these omissions constituted error. The simple answer to these assertions is that no request for either action was made by the defense.
It is argued that the court erred in not granting a motion which was made for a change of venue. The basis for this motion was three newspaper articles, relative to the robbery, two appearing in the DeQueen Bee, a weekly paper published in Sevier County, and the other being published in the DeQueen Daily Citizen. The first story complained about was published on Thursday, September 28, 1967, and is an account of the bank robbery. There is also a picture taken at the bank of the suspects, just prior to their interrogation by officers. The article is simply a news item, and recites that appellants were being questioned in connection with the robbery. It will be noted that this issue was published some seven months before the trial. The Thursday, October 5, 1967, issue of the paper merely recited that these three appellants had entered pleas of not guilty, and that each had been released on a $5,000.00 bond. None of the evidence was recited except the fact that the stolen Ford had been found abandoned. The third newspaper offered in evidence was the April 24, 1968, copy of tlie Daily Citizen, which was published five days before the trial. The article itself was very brief, reciting that appellants would be tried on Monday, and listed the names of the jurors for the adjourned February term of court. However, one sentence read as follows:
“All four had entered guilty pleas and were free on $5,000.00 bond each.”
Obviously a typographical error had been made, and the sentence should have read, “All four had entered not guilty pleas.” This is the only statement that could at all have had any adverse effect, and certainly any member of the jury learned at the very outset of the case, that no plea of guilty had been entered. Neither affidavits nor testimony was offered that appellants could not receive a fair trial, nor does the record reflect that members of the jury panel were questioned with regard to whether the newspaper articles had influenced them in any manner. In other words, there is absolutely no showing of any possible prejudice.
In June, 1968, a hearing was held on an amended motion for a new trial, wherein it was asserted that new evidence had been discovered that would impeach the evidence offered by Lawrence Dinger on behalf of the state; ‘William Allen testified on behalf of the appellants, the substance of his testimony being that Steel did not make any statement to him about buried money, nor the ijockesburg bank. Allen said that there was a conversation about money, but it concerned a shotgun. In Gross v. State, 242 Ark. 142, 412 S.W. 2d 279, this court mentioned that newly discovered evidence is one of the least favored grounds of a motion for new trial, and that such motion is addressed to the sound legal discretion of the trial judge. It was further pointed out that the mere fact that the evidence is contrary to that offered at the trial by the state is insufficient, and that it must be shown that, because of this evidence, a different result upon a new trial is probable. We said that in order to justify the granting of the motion, the evidence in support thereof should be clear and satisfactory, and the trial court’s action should not be disturbed unless it is manifest that an injustice has been done. After studying this testimony carefully, we are not persuaded that the trial court abused its discretion, and this feeling is strengthened by the fact that no request for a continuance was made when Dinger was called to testify.
Other alleged errors during the trial are mentioned, including some alleged errors that do not appear in the record. We, of course, have given no consideration to the last mentioned, but every alleged error which appears in the transcript has been examined, and found to be without merit.
Affirmed.
McCary is not involved in the present appeal, nor does the record reflect what disposition, if any, has been made of the case against him.
According to other witnesses, Mrs. Dowdle had started into the bank, saw what was going on, and backed out.
He missed the year, and took the number as 56-2322, whereas the number actually was 56-2321.
Carroll Page testified that he “probably” asked if the bank bandit could be identified by anyone present.
One of the officers mentioned a Chevrolet automobile with a Texas license, but it is not clear whether he was speaking of the same Chevrolet.
A new handkerchief was taken from both Ronald and Carson Steel, and the similarity of those handkerchiefs to Exhibit No. 10 prompted the officers to send in Exhibits 3 and 10.
Emphasis supplied.
The federal waiver provides:
“Before we ask you any questions, you must understand your rights.
“You have the right to remain silent.
“Anything you say can be used against you in court.
“You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
“If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
“If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
WAIVER OF RIGHTS
“I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.” | [
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Frank Holt, Justice.
This is a proceeding for post-conviction relief under our Criminal Procedure Rule No. 1. The petitioner, now the appellant, asks that his sentence be vacated and that he be set free. He was sentenced in January 1966 to a term of five years in the state penitentiary upon a plea of guilty to the alleged crime of robbery.
In February 3968 the appellant filed a writ of habeas corpus which the present trial court promptly treated as a petition for post-conviction relief. The court appointed his present counsel who filed an amended petition in appellant’s behalf. Subsequently, the court overruled and denied appellant’s motion to set aside the denial of appellant’s petition for post-conviction relief and accord appellant a new trial. This appeal followed.
The issues on appeal “involve constitutional grounds including violation of rights, violation of due process, failure to advise of charge on which arrested, failure to advise of rights, denial of rights to bond, failure to have an attorney appointed to represent Mm or to be represented in competent fashion, and bias and prejudice of the original Judge, P. E. Dobbs.” The present trial judge (who did not preside at the original trial), conducted a fair and extensive hearing on appellant’s petition and also upon Ms motion for a new trial following denial of the petition. The court rendered a comprehensive and thorough opinion in the form of findings of fact and conclusions of law in denying appellant the relief he sought.
■ Appellant first asserts that cine process was denied to him because he was never told for what charge he was being arrested and was never advised of his rights. We do not agree. There was evidence for the trial court to consider that upon being arrested with his codefendant, a brother-in-law, both were identified by the victim as having committed the alleged robbery. Furthermore, on Decembm 1, 1965, the day of his arresi, be was charged by information and accused of the alleged offense of robbery and bail was set. He had the benefit of counsel and never raised this issue at any stage until he initiated this proceeding. He was arraigned and pleaded not guilty on December 6, 1965, with counsel present, and on January 3, 1966 he pleaded guilty with the same counsel representing him, receiving a five-year sentence, along with his brother-in-law and codefendant.
Next appellant argues that he in effect was denied the right to bail or the right to make bond by Judge Dobbs, the then presiding judge. The bench warrant reflects that appellant’s bond was set at $4,000 on December 1, 1965. Appellant contends that he could not make bail because Judge Dobbs threatened to raise it if he tried to make bail. This assertion was contradicted and denied by Judge Dobbs and according to the record, the bond remained the same as originally set.
Appellant contends that “he was denied due process aud deprived of a fair trial in that he never retained counsel, none was appointed for him, he never accepted the services of an attorney, and he was not given effective, adequate, and competent legal representation.” The evidence and record are amply sufficient to sustain the trial court’s findings to the contrary. The appellant appeared with his codefendant for arraignment before the court on December 6, 1965. Senator Q. Byrum Hurst appeared with appellant and entered a plea of not guilty to the charge of robbery on behalf of appellant and his codefendant. Again, on January 3, 1966, the appellant appeared in open court with Senator Hurst who asked permission of the court to change appellant’s plea of not guilty to a plea of guilty to the charge of robbery. Upon the recommendation of the prosecuting attorney, the plea of guilty was accepted and appellant and his codefendant each received a sentence of five years in the state penitentiary on the robbery charge.
There is no evidence that appellant ever indicated during these proceedings that Senator Iiurst was not representing him or that his counsel was not satisfactory or that he desired the appointment of counsel. Senator Hurst, who has approximately thirty years experience as a trial lawyer, was retained to represent these defendants by their families the day before their arraignment. He was known to both families for several years and had previously represented some of them. A few days following their arraignment, the mothers of both defendants made a substantial payment on his fee to represent the defendants. His copies of the receipts were introduced into evidence. There was evidence that he conferred with the appellant several times. Senator Hurst testified that his efforts were directed mainly toward working out an acceptable sentence on a plea of guilty. The state desired a 12-vear sentence. The defendants’ counsel asked for a 5-year sentence with 2 years suspended. After conferences with the prosecuting attorney, it was agreed that the state would recommend a 5-year sentence for appellant and his codefendant upon a plea of guilty. It appears that this was a reluctant agreement on the part of the state as to the appellant because he had three previous felony convictions. These consisted of burglary, forgery and uttering, and theft. His codefendant had none. As was the custom, the trial court accepted the prosecuting attorney’s recommendation in assessing the recommended sentences.
The record reflects that appellant’s retained counsel continued to follow his case with interest, writing letters in his behalf to appropriate officials. Further, upon appellant’s commitment to the penitentiary, a doc ument reflecting his personal history and signed by him shows that the name and address of his attorney was “Q. By nun Hurst, Hot Springs, Ark.”. The document further reflects:
“Brief History of Crime: (inmate’s version) * * * He and accomplice robbed a WM (Robert Clairdy) on the Street in Hot Springs, Ark. taking about $250.00 from said man. Subject states that he was arrested same day by the City Police of Hoi Springs, Ark., due to information from unknown party who saw said act. Subject was charged with Robber;/, and went to court and entered a Plea of Guilty to said charge and received a Sentence of Five (5) Yrs. to be served.
Also, we find in the record letters from appellant to Senator Hurst acknowledging him as his attorney and asking his continued assistance.
We agree there was sufficient evidence for the court to find that:
“ [T]he following facts were substantiated by the evidence adduced at the hearing: that petitioner was sufficiently and properly warned of his constitutional rights at all critical stages in the proceedings. That the petitioner had the advice and assistance of a competent attorney. That petitioner was sufficiently advised of the charge against him. That, upon entering the not guilty plea, defense counsel indicated a' need for time within which to discuss the case with the petitioner. That the time lapse between petitioner’s arrest and arraignment was reasonable. That the time lapse between the date of the not guilty plea and the date on which the plea was changed to guilty was reasonable.”
In Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852 (1968), we said:
‘ ‘ * * * Until the contrary is shown, we will assume that a person who appears in court with an attorney of his choice has ample opportunity' to understand when he has entered a plea of guilty and the consequences thereof.”
The crime of robbery is punishable by a sentence of three to twenty-one years. Ark. Stat. Ann. § 41-3602 (Repl. 1964). The appellant is 27 years of age and .has experienced three felony convictions before this alleged crime. It appears that appellant had the benefit of effective, adequate, and competent legal representation.
Appellant next asserts that because of the bias and prejudice on the part of Judge Dobbs, the then presiding judge, appellant was denied due process and deprived of a fair trial. According to the appellant’s evidence, the presiding judge refused to permit him to make bail; “promised” him 21 years if he asked for a jury trial; failed and refused to accept and file an earlier petition for writ of habeas corpus mailed to him by appellant; instructed prison authorities who transported appellant to the penitentiary to corporally punish him; and thereafter wrote a letter to the same effect to the prison officials. A photocopy of this letter was presented as a basis for appellant’s motion to set aside the denial of appellant’s petition and accord him a new trial. All of this was refuted by Judge Dobbs and the letter termed a forgery. There was evidence that after the appellant had been in the penitentiary a few months he was given a furlough to see his dying grandmother at the request of Judge Dobbs who also instructed that a $2,000 bond by appellant’s mother would be sufficient. Appellant testified that Judge Dobbs told him he did not have to return to the. penitentiary following his furlough'. This was also denied by Judge Dobbs. The present trial judge’s findings on these issues are based upon and supported bv sufficient evidence.
Appellant argues that a combination of these factors violated his constitutional rights and, thus, the court erroneously denied appellant’s amended petition for a writ of habeas corpus and further, erred in refusing his motion for a new trial thereby setting aside the denial of appellant’s petition. We do not agree. Wo think the trial court scrupulously observed and complied with the provisions of our Criminal Procedure Rule No. 1. This rule does not permit the holding of a second trial within itself. Rather, it exists for the purpose of providing “a method for determining, after the filing of aii appropriate petition, whether any constitutional requirements or statutory enactments, either federal or state, relative to the rights of an accused, have been violated, or whether the sentence is otherwise subject to a collateral attack.” Clark v. State, 242 Ark. 584, 414 S.W. 2d 601 (1967).
In Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 91 (1968), it was urged that the trial court was biased and prejudiced and that through fear appellant acquiesced in a plea of guilty. There we said:
“If Orman feared a 105-year sentence, his fear was induced by his own knowledge of the hazards involved and not by any coercion by the trial judge. ’ ’
Similarly, in the case at bar we think that in view of appellant’s age and his experience with the criminal courts, any fear he had was induced by his own knowledge and experience rather than any bias, threats and prejudice of the presiding trial judge. It appears that the sentence appellant received upon a plea of guilty was based upon the efforts of competent counsel and the prosecuting attorney’s recommendation which the court accepted.
After a full and complete canvass of the record in the case at bar, we are of the view that there is sufficient evidence to sustain the trial court’s action in refusing to vacate appellant’s sentence and to give the relief he sought and, further, that in none of the proceedings was there any violation of appellant’s constitutional rights.
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George Rose Smith, Justice.
This appeal is from a verdict and judgment finding William Howard Mosley guilty of rape and fixing his punishment at life imprisonment. The appellant’s attorney, who was appointed by the court, argues three points for reversal.
Before the trial counsel filed a motion to suppress the defendant’s confession, on the grounds that he was not properly warned of his constitutional rights and that he was too young to comprehend such a warning. The trial judge held a hearing on the motion to suppress and found the confession to be admissible. In accordance with our practice as set forth in Harris v. Slate, 244 Ark. 314, 425 S.W. 2d 293 (1968), we have independently reviewed the record and have reached the conclusion that the confession was admissible.
The offense of rape was committed in August of 1966. In the following May young Mosley, who was wanted as an escapee from the Boys Industrial School, was arrested and questioned about a more recent offense involving burglary and assault. The two officers who questioned Mosley testified that they first explained his constitutional rights and obtained his signature to a printed form of waiver containing a full statement of those rights. Mosley quickly admitted his guilt of the offense under investigation and signed a confession with respect to it.
The officers then repeated their explanation of Mosley’s rights and obtained another signed waiver before questioning him about the older charge of rape. Mosley again admitted his guilt and signed a confession that agreed in all material details with the version later given by the prosecuting witness at the trial of the case. This is the confession that the trial judge found to have been voluntarily given.
AVe agree with that conclusion. Mosley testified at the hearing on the motion to suppress. He admitted that the officers read the waiver to him, but he testified that he did not understand it. He does not contend that he was physically mistreated, though he does say that one of the officers threatened to “bust” him when lie got out of the reform school.
Mosley was fifteen years old when he was interrogated. lie had served a term in the penitentiary and liad also been confined to the Boys Industrial School. The trial judge made detailed findings of fact, which included this statement based upon firsthand observation: “He appeared to me to be completely normal and possessing the intellect of an average sixteen-year-old boy.” Needless to say, officers who question an underage suspect should take his youthfulness into consideration in conducting their interrogation. In this case we do not find that young Mosley was abused or treated unfairly in any way. By the great weight of authority a minor is capable of making an admissible voluntary confession, there being' no requirement that he have the advice of a parent, guardian, or other adult. The cases are analyzed at length in People v. Lara, 62 Cal. Rptr. 586, 432 P. 2d 202 (1967), and need not be re-examined here.
Secondly, counsel contends that the State failed to make a prima facie case, because Mosley’s confession is the only evidence that connects him with the crime. That is all the law requires, it being sufficient for the other proof to show that the offense charged was committed by someone. Ark. Stat. Ann. § 43-2115 (Repl. 1964); Charles v. State, 198 Ark. 1154, 133 S.W. 2d 26 (1939). The testimony of the prosecutrix satisfied the statutory requirement.
Finally, counsel complains of two references during the trial to the subsequent incident involving burglary and assault. Both references occurred during the cross-examination of Officer Calhoun, a witness for the State. Calhoun was asked what happened just before Mosley confessed to the rape, and the witness answered: “I was questioning him about a house burglary where he assaulted a woman and broke in her house.” The answer could not have been unexpected, for the officer had given the same testimony at the earlier hearing upon the motion to suppress. Moreover, defense counsel continued his cross-examination without making any objection to the officer’s reply to the question.
A few moments later counsel returned to the point, asking Officer Calhoun if Mosley had signed another statement before signing the confession of rape. Calhoun answered: “Yes, sir. He signed one before this one admitting to assault of this other woman over there.” Counsel then made an objection and asked the court to admonish the jury, which was done. It was not until counsel had concluded his cross-examination that he asked for a mistrial, which he now insists should have been granted. The court properly refused to declare a mistrial, not only because that request manifestly came too late but also because counsel’s questions had elicited the information .in the first place. Doubtless counsel expected to derive some benefit for his client by showing that the youth had already been questioned for about 70 minutes before the officers began to interrogate him about the rape charge. Counsel cannot be permitted to obtain the advantage of that argument to the jury and still insist upon a mistrial when the strategy proved to be unavailing.
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David Newbern, Judge.
The appellee, an accountant, brought suit for beach of an oral, contingent fee contract for. accounting services. The services were performed for the appellant with the object of seeking a reduction of a U.S. government claim for delinquent taxes which accrued over a four year period. The appellee alleged the appellant had agreed to pay one fourth of the difference between what the appellant would ultimately be required to pay and what the government claimed to be due. The appellee was awarded a judgment of $12,229.26, and the appellant appealed to the Arkansas Supreme Court, mainly alleging the appellee’s evidence was not sufficient to have gone to the jury. The case was assigned to us pursuant to Rule 29 (3), and we affirm the judgment.
The appellant has asked us to consider three alleged errors. In his third point he contends the trial judge improperly refused to give an instruction that the appellee was required to prove by a preponderance of the evidence and. with reasonable certainty the amount of the tax deficiency stated by the U.S. Internal Revenue Service (IRS) and the deficiency ultimately determined to exist. The appellant did not furnish an.abstract of the instructions given by the court, and thus we decline to consider this point. It has long been the rule that an appellant in' a civil case who complains of failure to give a proffered instruction must set out or abstract the instructions given. See Ellis v. State, 267 Ark. 960, 590 S.W. 2d 309 (Ark. App. 1979), in which this court discussed the rule as it has been applied in civil cases and misdemeanor criminal cases and held that it applied even to felony conviction appeals. See also. Rule 9 (d) of the Arkansas Supreme Court and Court of Appeals.
Before discussing the appellant’s first two points, we must state these additional facts. The appellant was, in 1973, under investigation for federal income tax evasion. In a meeting between IRS officials and the appellant, his lawyer and the appellee, who had been hired as appellant’s accountant in 1972, IRS officials stated the appellant owed additional taxes of $198,623.43 for the years in question, according to the appellee’s testimony.
The appellee testified that after the criminal aspects of the case had been disposed of, he met with the appellant and they agreed that, in addition to the standard hourly rate the appellee had been paid, he would be entitled to one fourth of the amount he was able to “save” for the appellant. The appellee’s testimony at the trial was that he had with him in March of 1975, and on the day the alleged agreement was reached, a copy of a worksheet upon which he had calculated the IRS claim to be $189,828.29. That figure was, according to the appellee, based on a report which had been filed by Treasury Department agents in the criminal proceedings and was the “latest” estimate of the government’s claim. The appellee testified the figure was provided to the appellant at the time they agreed on the contingent fee.
In his first point, the appellant contends a verdict should have been directed in his favor because the entire evidence of the original claim, or “starting figure,” of the IRS from which the “savings” were to be determined was the testimony of the appellee which was contradicted by the previously taken deposition of the appellee. For this proposition, the appellant cites a number of Tennessee cases, the most recent of which is Gambill v. Hogan, 30 Tenn. App. 465, 207 S.W. 2d 356 (1947). The statement of the law the appellant asks us to apply from that case is, “. . . when a witness both affirms and denies a proposition, without explanation, the fact as to which he testifies remains unproven. [207 S.W. 2d at 361].”
We have no quarrel with that statement of the law, but it does not apply here. The appellee’s testimony in his deposition was revealed at the trial when the appellant’s counsel had the appellee read certain parts of it for the purpose of impeaching his trial testimony. At the trial, the appellee’s testimony was that upon his deposition he had said from the outset he had presented to the appellant the figure $189,-828.29 as the claim of the IRS, as of the time of the alleged agreement, and that it was based on preliminary IRS agent reports. The appellee freely admitted in his deposition he did not know at that time how much of that money he could “save” the appellant. At one point in his deposition he said the figure was not the basis of the law suit. At the trial, the appellee said that if he had made such a statement in his deposition it was a mistake, as the suit was based on that figure from its outset.
' Unlike the cases cited by the appellant, this is not one where the witness was vague and uncertain or where he made two diametrically opposed and irreconcilable sworn statements at different times. Here the appellee had one lapse in his deposition testimony which must be regarded as insignificant when viewed in the context of the other testimony in the deposition. Although the deposition was not introduced in evidence, enough of it was read by the appellee in the appellant’s attempt to impeach his trial testimony to make it clear the appellee was firm in both his statements that both he and the appellant knew the figure upon which their agreement was based. We hold that if the appellant’s misstatement could be regarded as sufficient to invoke the rule the appellant would have us apply, it was “explained” when viewed in the context of all the testimony we have examined.
Contingent fee contracts such as this one between an accountant and a client under attack by the IRS have not been the subject of cases decided by us or by our supreme court. Other jurisdictions have dealt with them, however, and have found them inoffensive, even where a fiduciary relationship existed between accountant and client, Jorge v. Rosen, 208 So. 2d 644 (Fla. App. 1968), or where the actual work done by the accountant seemed grossly insufficient in relation to the fee to be determined in this manner. Gladding v. Langrall, Muir & Noppinger, 401 A. 2d 602 (Md. App. 1979). Such an agreement is sufficiently definite as to the price of services, as the amount can be determined by the court without any new expression by the parties. 1 Corbin, Contracts, § 98, p. 433 (1963).
The other point raised by the appellant is that the verdict is not supported by substantial evidence. We assume this argument is based on a supposition we would find the testimony of the appellee worthless. To the contrary, we find the appellee’s testimony constitutes substantial evidence, and we find no reason to disturb the jury’s verdict or the judgment.
Affirmed.
Supplemental opinion on Denial of Rehearing delivered January 23, 1980
PER CURIAM
In his motion for rehearing, the appellant has correctly pointed out that Rule 9 does not require an appellant to abstract all the instructions given by the court as a predicate to objection on appeal to failure by the trial court to give an instruction proffered by the appellant. Guaranty Trust Life Insurance Company of Chicago, Illinois v. Koenig, 240 Ark. 650, 401 S.W. 2d 216 (1966); Forest Park Canning Company v. Coler, 226 Ark. 64, 287 S.W. 2d 889 (1956).
We cited Ellis v. State, 267 Ark. 960, 590 S.W. 2d 309 (Ark. App. 1979), as a case in which the majority opinion explained the history of the abstracting requirement, not as a precedent binding on the parties in this case. Our historical discussion in Ellis was incomplete, however, as it left out the Guaranty Trust and Forest Park cases cited above.
We will not, however, depart from a requirement that an appellant abstract at least the instruction proffered where the basis of appeal is failure of the trial court to have given it. We regard that requirement as fairly set but in Rule 9 (d). The rationale for the rule and the requirement as we apply it here will be found in Bank of Ozark v. Isaacs, et al, 263 Ark. 113, 563 S.W. 2d 707 (1978).
Nor will we consider the failure to abstract cured by mention of the omitted matter in the brief of the appellee where no supplemental abstract is filed. Rule 9 (e); Smith, Abstracting the Record, 31 Ark. L. Rev. 359, 368 (1977).
Here neither party abstracted any instruction given or proffered. The appellent did set out the proffered instruction in the argument portion of his brief, and the appellee set out in the argument portion of his brief the comparable instruction that was given by the court. As stated, that does not comply with the abstracting requirement.
In view of this failure, we persist in our refusal to give formal and full consideration to the appellant’s point. However, we can assure the appellant that even in our origianl consideration of the case we did not completely ignore the point although we decided to base our decision on the abstracting lapse. To the extent we were able to consider the point, it was apparent to us the court correctly instructed the jury it was the appellee’s burden to prove the terms of the contract and it was not necessary for the court to have used the word “price” or to have specifically instructed the jury in the manner the appellant’s argument suggests was requested at the trial.
Rehearing denied. | [
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Frank Holt, Justice.
Appellant was charged and convicted of hindering the apprehension or prosecution of James Pace for aggravated robbery. Ark. Stat. Ann. § 41-2805 (Repl. 1977). She was sentenced to three years’ imprisonment under the Youthful First Time Offender Act.
Appellant first contends, through appointed counsel, that the lower court erred in allowing the state to amend the information during the course of the trial. The amendment changed the notation on the information from a Class D felony to a Class B felony. Appellant argues that this is prohibited by Ark. Stat. Ann. § 43-1024 (Repl. 1977), which provides in pertinent part:
The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged.
The appellant asserts that the permitted amendment increased the degree of the crime charged in that a more severe sentence could be imposed for a Class B felony. The appellee, however, correctly responds that the statute under which the appellant was charged specifically provides that when the crime from which the hindering charge arose is a Class A felony, as here, the offense is a Class B felony. Ark. Stat. Ann. § 41-2805(2) (Repl. 1977).
It is well settled that the information may be amended during the trial as long as the nature or degree of the crime charged is not changed. Owen v. State, 263 Ark. 493, 565 S.W. 2d 607 (1978). Here in the language of the statute, the appellant was charged before and after the amendment with hindering the apprehension or prosecution of James Pace for aggravated robbery. Clearly, she was sufficiently apprised of the specific crime with which she was charged to the extent necessary to enable her to prepare her defense, that being all that is required. Lee v. State, 229 Ark. 354, 315 S.W. 2d 916 (1958); and Underdown v. State, 220 Ark. 834, 250 S.W. 2d 131 (1952). The statutes here do not require that the penalty of the alleged offense be included in the information. Ark. Stat. Ann. §§ 43-1006, 43-1007, and 43-1008 (Repl. 1977). See also Estes v. State, 246 Ark. 1145, 442 S.W. 2d 221 (1969). We hold that the degree of the alleged crime was not changed by the amendment. Further, the appellant’s attorney candidly admitted that there were negotiations with the state’s attorney, and at the time of the amendment he was not surprised that the crime charged in the information was in fact a Class B felony.
Appellant’s second ground for reversal is that the court erred in admitting into evidence certain of her statements. She contends that the statements were confessions and that she was entitled to a Denno hearing for a determination of their voluntariness pursuant to Ark. Stat. Ann. § 43-2105 (Repl. 1977). The statements in question were made at the sheriffs office at 12:45 a.m. several hours following the robbery. When she and the accused were initially questioned at their apartment concerning the incident, she was not placed under arrest nor taken into police custody. She voluntarily drove her car to the sheriffs office where the accused had been transported by the police. At this point, she was not suspected of any criminal offense. She was questioned only as a witness to “back up’’ some of the accused’s statements concerning his activities during the past several hours. Appellant was not in police custody nor was the investigation focused upon her.
The statements did not constitute a confession. A confession is an admission of guilt as to the commission of a criminal act. State v. Jones, 188 S.E. 2d 676, 14 N.C. App. 558 (1972); O’Neal v. State, 468 P. 2d 59 (Okla. Cr. 1970); Gladden v. Unsworth, 396 F. 2d 373 (9th Cir. 1968); Norrell v. State, 157 S.W. 2d 784, 116 Ga. App. 479 (1967); and 29 Am. Jur. 2d Evidence, § 523; 23 C.J.S. Criminal Law § 826. Here appellant’s statements to the police were, in the words of our statute, a mere continuation of her effort to “conceals], alter[s], destroy[s], or otherwise supress[es] the discovery ... of any fact, information or other thing related to the crime which might aid in the discovery, apprehension, or identification of the person;” and to “volunteers] false information to a law enforcement officer.” § 41-2805(d)(f). The deliberate act of making false statements to the police concerning Pace’s activities the night of the robbery is the essence of the alleged criminal offense and not a confession. An in camera hearing to determine the voluntariness of the statements was therefore not required.
Appellant’s last ground for reversal is that there was insufficient evidence to sustain her conviction. She first argues that the state failed to establish that she was aware that Pace had committed aggravated robbery. The thrust of her argument is that the statute requires that her conscious purpose must have been to “hinder the apprehension or prosecution of one whose conduct constituted” aggravated robbery. § 41-2805 provides in pertinent part:
(1) a person commits an offense under this section if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for an offense . . .
Although former law (Ark. Stat. Ann. § 41-120 [Repl. 1963]) required that the hinderer have “full knowledge” of the crime committed, the new Code “speaks in terms of the actor’s purpose rather than the certainty of his knowledge respecting the consummated crime.” (Italics supplied.) Commentary, Ark. Stat. Ann. § 41-2805 (Repl. 1977). The statute requires only that the hinderer purposely aid one sought for “an offense.”
At trial, Pace, who had been convicted of aggravated robbery, testified that prior to his departure from their apartment, he and the appellant “had a conversation concerning my intent to rob the Pizza Hut.” The appellant warned him to “be careful”, watched him cut eye holes in a ski mask, and was aware of his earlier intent to borrow a gun. Moreover, upon his return to the apartment after the robbery at gun point, he told the appellant that he had robbed the Pizza Hut and threw $400 on the bed. There is certainly substantial evidence that appellant had reason to believe that Pace had committed “an offense.”
Appellant also contends that the state failed to establish that her purpose was to hinder the apprehension of the accused. When the police arrived at their apartment, appellant went into the bathroom to advise Pace that the police wanted to question him. According to Pace, she informed him that she had advised the police that he had been at the apartment “all evening.” He so told the officers. At the trial Pace testified that the appellant had given false information to the police. This evidence, together with that previously recited, is amply substantial that the appellant purposely hindered the apprehension or prosecution of a person.
Affirmed.
Harris, C.J., not participating.
Purtle, J., dissents. | [
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J. Fred Jones, Justice.
This is a workmen’s compensation case and involves the question of whether the statute of limitations had run on a claim at the time it was filed with the Commission. A referee and the Commission held that it had. The matter is before us on appeal by the claimant from a judgment of the Sebastian County Circuit Court affirming the order of the Commission.
Vo examine the usual compensation case for a determination of whether there is any substantial evidence to support the order or award of the Commission, but in this case we have examined the record for matters that would toll the statute, or estop the appellees from pleading it, and we have found none.
We consider the facts to be clear, that the appellant sustained an injury to his right knee while in the course of his employment as a salesman for United States Tobacco Company. The injury was sustained on April 9, 1963, in a collision between the employer’s automobile, insured by Continental Casualty Company, and an automobile driven bj7 Lawrence Edwards, insured by State Farm Mutual Insurance Company. Continental Casualty also carried the workmen’s compensation insurance for the claimant’s employer, and is an appellee, along with the employer, in this case. An independent adjustment company investigated the accident on behalf of Continental Casualty under the automobile liability policy, and rendered its report to Continental Casualty on May 16, 1963, stating: “The assured driver, Lloyd McFall, sustained a sore right knee and right ankle, however, has not required any medical treatment.”
The claimant reported his injur}7 to his employer and the employer’s first report of industrial injury (A-8) was made out b}7 the employer under date of May 13, 1963, showing that appellant had sustained a knee injury; that the probable length of disability was not known; that the appellant had returned to work and that the name of his physician was Dr. Wideman.
On September 30, 1963, Dr. John W. Wideman rendered final surgeon’s report and bill on printed form to Continental Casualty showing two visits by the claimant on Ma}713 and June 17, 1963. Dr. Wideman’s reported diagnosis is blurred on the form he filled out, but it appeal's to be “possible tear of the medial meniscue and strain of its attachment to the ligament.” Dr. Wide- man reported that he recommended conservative treatment ; that appellant was told not to squat or run; that appellant was improved and pronounced as able to return to work; that no time was lost from work as far as Dr. 'Wideman knew and he anticipated no permanent injury. Dr. AVideman stated his bill for services as $22.50.
Continental Casualty paid Dr. AVideman’s bill and filed final report with the Commission on noncompensable injury form A-10, which was stamped “received on October 15, 1963.” The record does not reveal whether the appellant received a copy of this form, A-10, but at the bottom of the form is printed the following paragraph:
“Note to Injured Employee: This is a copy of a report furnished us by your employer or his insurance carrier relating the above information regarding your injury. As your disability extended for a period of less than seven days, you are entitled to no compensation. The above medical benefits have been-provided for you and paid for by your employer, however, in accordance with the provisions of the Arkansas AVorkmen’s Compensation Law. If there is any substantial error in this report, please notify the undersigned.”
Doctor AVideman was recommended to the appellant by a claims representative for State Farm Mutual Insurance Company, Mr. Edwards’ liability insurance earner, and the appellant went to Dr. AVideman on his own initiative. The appellant returned to Dr. AVideman on March 9, 1964, and a report of this visit was sent by Dr. AVideman to State Farm Mutual Insurance Co. The appellees received no copy of this report and received no request for payment for this examination. On August 28, 1964, the appellant went to Dr. Hathcock of the IIolt-Krock Clinic on his own initiative and made return visits on January 8, January 23, and May 12. 1965. The appellant terminated his employment with the appellee tobacco company on November 12, 1965. He was again seen by Dr. Hathcock oh February 17 and June 29, 1966, and a torn cartilage was surgically removed from appellant’s knee by Dr. Hathcock on July 7, Í966. Claim was filed with the Workmen’s Compensation Commission for medical expenses, as well as temporary and permanent partial disability on October 21, 1966.
The crux of appellant’s contention is set out in his points relied on for reversal, as follows:
“No period of longer than one year intervened between visits to and treatment by Drs. Wideman or Hathcock, and said treatment amounted to ‘compensation’ within the meaning of the Workmen’s Compensation Act.
The employer’s payment of the claimant’s salary while he was disabled as a result of his occupational injury was in lieu of compensation or constituted ‘compensation’ within the meaning of the Workmen’s Compensation Act.
By their conduct, the respondents have waived the filing of a claim, within the statutory period, or they are estopped to assert such Statute of Limitations.”
In effect, the appellant earnestly contends that this court should go further than it has heretofore gone in considering medical treatment and the payment of wages as payment of compensation for the purpose of extending the time,, or tolling the statute of limitations, for filing claims with the Commission in workmen’s compensation cases. The appellant cites numerous eases, of respectable authority, in support of his contention, but they are distinguishable on the facts from the case at bar.
The appellant is correct in his statement that we are committed to the rule under Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W. 2d 211, “that where an employer furnishes an injured employee medical services, this constitutes a payment of compensation or a waiver which suspends the running of the time for filing a claim for compensation.” The keystone to this rule is the two words “employer furnishes.” We have never held that medical services furnished by anyone oth.er than the employer or his compensation insurance carrier, constitute payment of compensation or a waiver which suspends the running'of the time for filing a claim for compensation. We are unable to see how an employer could furnish medical treatment without knowing, and without reason to know, that he is doing so.
The appellant testified as follows:
“Q. Now then, did vou see Dr. Wideman after June of 1963?
A. I’m not sure about that. I know I did see Dr. Wideman on three occasions.
Q. As a matter of fact, in March of 1964 at the request of Jack Chancey didn’t you go back and see him and he submitted a report to Jack Chancey on the State Farm Mutual Insurance Company?
A. Jack Chancey was the one that had recommended Dr. Wideman to start with.
Q. Jack Chancey is the claims representative for the insurance carrier of the adverse vehicle, the one you had the collision with, was he not?
A. I believe that’s correct.
# # *
Q. Now then, yon say yon went to Dr. Wideman on those three occasions and then it was in August or September of 1964, before you went to Dr. Hathcock. Is that correct?
A. Yes.
Q. Who told you to go to Dr. Hathcock?
A. Well, I don’t recall anybody—
Q. Mr. McGowan or United States Tobacco or Continental Casualty did not tell you to go to Dr. Hathcock, did they?
A. No.
*• # #
Q. Well, why did you go to Dr. Hathcock?
A. I wasn’t satisfied with the finding of Dr. Wide-man. I was still having trouble with my knee, it was getting worse, and I felt that I should see another doctor.
Q. Now are you still under the care of Dr. Hath-cock?
A. Yes.
Q. Have you been under the care of Dr. Hathcock continuously since you went to him on the first occasion up to the present time?
A. Yes.
Q. At the time you terminated from United States Tobacco in November, 1965, was anything said about any workmen’s compensation benefits or the medical bills of Dr. Wideman? Did you make any demand upon United States Tobacco, Mr. McGowan or Continental Casualty Company for payment of any compensation benefits or medical bills that had been incurred?
A. No, I hadn’t.”
Mr. J. R. McGowan, appellant’s supervisor while he was employed by the appellee tobacco company, testified, in part, as follows:
“Q. Did he ¡.appellant] ever complain to you about his lrnee?
A. On making of daily reports I’m sure that he may have referred to the reason for losing time was due to that but I couldn’t say exactly. I knew that he lost time, but for what reason I wasn’t positive.
Q. Were you aware of the fact that he was still going to a doctor for his knee?
A. Not necessarily for a knee. I knew that he was going to a doctor. I dicln’t know for what, our reports indicated that that’s what he had done.
* * *
Q. Mr. McGowan, were you aware that Mr. McFall was still having difficulty with his knee when he left United States Tobacco Company in November, 1965?
A. No.
Q. He was not saying anything to you about it at that time?
A. It wasn’t mentioned.
Q. I’m not talking about a claim against United States Tobacco Company.
mr. smith; He understands the question.
Q. Were you aware of the fact that he was still having difficulty with his knee?
A. No.”
Tlie appellant, as well as appellant’s former supervisor, testified that the appellant lost about thirty days from his work between the date of his injury on April 9, 1963, and his termination on November 12, 1965; that a part of this loss was occasioned by the knee injury and a part for other reasons and purposes. On this point, a part of the appellant’s testimony is as follows:
“Q. Now then, during that period of time you continued to work for the United States Tobacco Company up until your separation in November of ’65. Is that correct?
A. Yes.
Q. You say you missed thirty-three days. Can you tell us what thirty-three days you missed?
A. No, I couldn’t off hand.
Q. .You have no way of determining it?
A. I have no way of determining it.
Q. That’s just a guess, isn’t it?
A. It would be a rough estimate, yes.
Q. You missed work for several reasons during that period of time, did you not?
A. Well, yes, 1 missed work for several reasons.
Q. Prior to this accident you missed work for several reasons, did you not?
A. Yes.
Q. Illness, death in the family?
A. Yes.
* # *
Q. And you made no demands for any compensation benefits or weekly compensation benefits at any time while you worked for United States Tobacco Company?
A. No.
Q. And you have no way — it could have been twenty days you missed, it could have been forty days you missed?
A. I have no record of the days.
Q. Did you miss any days by reason of — I believe you have testified you missed days for other reasons. Matter of fact, your Father was killed during this period of time?
A. Yes.
Q. Did Amu have any other illnesses?
A. I had come down with the ’Flu on occasions and I’d had Pneumonia once and had a relapse on that.
Q. During these times they continued to pay your salary?
A. Yes.
Q. It was in the nature of sick leave then?
A. You could say that, yes.”
Arkansas Statutes Annotated § 81-1318 (a) (b) (Repl. 1960) provides in part as follows:
“(a) (1) A claim for compensation for disability on account of an injury (other than an occupational disease and occupational infection) shall be barred unless filed Avith the Commission within two [2] years from the date of the accident. * * *
(b) In cases where compensation for. disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, which ever is greater. ’ ’
The appellant filed suit in the Sebastian County Circuit Court, apparently in 1966, for personal injuries against the third party tort feasor, and the employer joined as party plaintiff in that suit, not for subrogation under Ark. Stat. Ann. § 81-1340 (b) (Repl. 1960), but for the property damage to its automobile the appellant was driving at the time of his injury.
The appellant did absolutely nothing of an affirmative nature toward claiming compensation benefits as a result of his injury between the date of his injury on April 9, 1963, and the filing of the claim by his attorney on October 21, 1966. There is no evidence that he ever consulted an attorney until the suit was filed in circuit court. The claimant selected his own doctor, recommended to him not by his employer or its compensation insurance carrier, but by the claims representative of the insurance company for the third party tort feasor. When the appellant became dissatisfied with this doctor’s diagnosis and service, he obtained other medical advice, treatment and surgery, without the advice, or recommendation, and so far as the record shows, without the knowledge or consent of anyone other than him-, self. He had worked as salesman for the Sunshine Ruscuit Co. about three and one-half months prior to his surgery.
Doctor Wideman submitted his final report and bill for services on September 30, 1963, stating that he had not seen the appellant since June 17, 1963 (a period of more than three months), and that so far as he knew the appellant had lost no time from work. Appellant’s subsequent visit to Dr. Wideman on March 6, 1964, was nine months after the last visit and over five months after Dr. Wideman’s final report and bill. On March 9, three days after this last examination, Dr. Wideman reported to State Farm Mutual Automobile Insurance Company (whose representative had recommended Dr. Wideman to the appellant in the first place) that he had re-examined the appellant on March 6, 1964, and this report was closed with the statement “I hope that this information fulfills your needs. If I can be of any further help, please do not hesitate to call on me.” This report itself would indicate that appellees did not furnish Dr. 'Wideman’s services on March 6, 1964.
The subsequent medical treatment and surgery at the Holt-Krock Clinic was further from being furnished by appellees than was Dr. Wideman’s examination of March 6, 1964, and could in no sense be considered payment of compensation.
Appellees voluntarily paid Dr. Wideman for the medical service rendered the appellant on May 13 and June 17, 1963, and thereby created the unrefuted presumption that the}' “furnished” the medical treatment on those dates. We adhere to our former rule that the treatments thus furnished constituted the payment of compensation, and we hold that the statutory period of limitation for filing a claim with the Commission for additional compensation started running from June 17 1963. Reynolds Metal Co. v. Brumley, supra, and Heflin v. Pepsi Cola Bottling Co., et al, 244 Ark. 195, 424 S.W. 2d 365.
As to appellant’s lost time and the payment of wages following his injury and prior to termination, the evidence is vague and indefinite as to the dates appellant lost time from his work and as to the total amount of time lie lost because of his injury. The appellant was paid full time for the days he was off work for any reason at all and he was supposed to make the lost time up if he could. It was a company policy. There is no evidence in the record that the appellant or the appellees considered such payment as compensation or as payments in lieu of compensation, all the evidence is to the contrary. Wo adopt the majority view as announced by Larson, Workmen’s Compensation Law, Vol. 2, Voluntary Payment of Compensation, § 78.43 (c), pages 272, 273, where it is said:
“. . . [T]he majority view apparently is that payment of wages to a disabled worker does not toll the statute unless the employer is aware or should be aware that it constitutes payment of compensation for the injury. * * *
When the employee actually earns his wages by performing his regular duties after the injury, the presumption is that the wages are being paid for value received, and not in lieu of compensation. ’ ’
The appellant recognized his need for medical treatment and procured the advice and services of two doctors. Unfortunately he did not recognize his need for legal advice and failed to consult a lawyer until after the statute of limitations had run on his claim. We recognize this case as a good example of why workmen’s compensation acts are, and should be, liberally construed in favor of claimants, but we can find nothing in the facts of this case to toll the statute beyond June 17, 1963, and there simply is nothing in the law that permits us to extend the statute of limitations beyond the period fixed by statute. The judgment of the trial court is therefore affirmed.
Affirmed. | [
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Robert H. Dudley, Justice.
Appellants filed a petition in county court alleging that they have no reasonable means of access to their land. They asked that a road be established across appellee’s property pursuant to Ark. Stat. Ann. § 76-110 (Repl. 1981). The statute requires a petitioner to make a deposit sufficient to pay all costs and expenses and the county judge to appoint road viewers to examine the route proposed or any other route they deem proper. If the road viewers determine that a road is necessary, they are then required to lay out the road, make an estimate of the damages to the landowner and make a report of all of the above to the county court. The appellants did not make the deposit and the road viewers were not appointed. Appellee, a school district, filed a general denial in county court and, in addition, pleaded that the proposed taking was improper because appellants had other access to their property and the proposed road across school property would unnecessarily endanger school children. The county court denied the petition and appellants appealed to the circuit court. At the circuit court trial the appellee orally raised the issue of the appellants’ failure to comply with the statute. Appellants objected, claiming surprise and that the issue could not be raised for the first time on appeal. The court allowed the amendment to the pleadings but did not dismiss the appeal and, instead, heard the case on its merits. The trial court then denied any relief to appellants. We affirm. Jurisdiction is vested in this Court pursuant to Rule 29 (1) (c).
Appellants first contend that the trial court erred in allowing appellee to orally amend its pleadings at the commencement of the trial. There is no reversible error for two reasons. First, the circuit court, after a trial in county court, may permit amendments and new issues to be raised, excepting set off and a new cause of action. Crockett Motor Co. v. Thompson, 177 Ark. 495, 6 S.W.2d 834 (1928), citing Texas & St. Louis Ry. v. Hall, 44 Ark. 375 (1884); Ark. Stat. Ann. § 27-2007 (Repl. 1979). Second, even if our law did not permit amendment on appeal to circuit court, there was no prejudice because the circuit court allowed the case to proceed to trial on the merits although the appellants never made a deposit for costs and road viewers were not appointed. Thus, appellants suffered no harm by the ruling.
Appellants’ second point is that the trial court applied a higher standard of proof than is proper. The correct standard was well stated in 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. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.
The trial court considered all of the factors and declined to exercise the right of eminent domain for a public road across appellee’s land. See Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983). Even if the trial judge announced the wrong reason, we will sustain the judgment if it is right, Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W.2d 13 (1965), and we consider the evidence most favorably to appellee and affirm unless the decision of the trial court is clearly erroneous. ARCP Rule 52; Orsby v. McGee, 271 Ark. 268, 608 S.W.2d 22 (1980). Here, the evidence established that appellants have a means of access across their land but that construction of this alternate route would be expensive. The proposed road, although less costly, would inconvenience the appellee school district because it would intersect a school parking lot and endanger the school children on the property. In addition, although a public road, the proposed road would benefit only appellants. From a review of the record we cannot say that the trial judge was clearly erroneous in determining that the road across appellee’s land was not necessary within the meaning of the statute.
Affirmed.
Hickman, J., concurs. See Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983). | [
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John I. Purtle, Justice.
The trial court dismissed appellant’s complaint for a declaratory judgment sua sponte on the grounds: 1) that there was another action pending, and 2) pursuant to Ark. Stat. Ann. § 27-2502 E. (Repl. 1979), inconvenient forum. We agree with the appellant’s argument that the court should not have dismissed the complaint without giving appellant an opportunity to present evidence as to the proper forum.
Appellee was a broker in Puerto Rico operating on behalf of the appellant. The relationship was terminated by appellant for what it felt was just cause. Appellee disagreed and filed suit in federal district court in Puerto Rico. Subsequently the appellant filed suit in Union County Circuit Court for a declaratory judgment. The appellee filed a motion to dismiss because there was another action pending, contending the Arkansas trial court lacked jurisdiction. A hearing was held on the motion to dismiss. The court found there were sufficient activities on the part of appellee in Arkansas to give rise to jurisdiction but stated that in the interest of substantial justice the complaint should be dismissed pursuant to Ark. Stat. Ann. § 27-2502 E. There had been no motion by appellee to dismiss because of an inconvenient forum.
The question presented on appeal is whether the court should have sua sponte dismissed the complaint. We hold that it was error to dismiss the complaint without hearing evidence as to the proper forum. In Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W.2d 578 (1957) we held that it was the duty of one wishing to avail himself of the doctrine of forum non conveniens to produce evidence to sustain the allegations of the motion. In Running we held that the pleadings and stipulations alone were insufficient to form a basis upon which the court could decide the issue of inconvenient forum. The trial court’s discretion must necessarily be based upon such factors as convenience to the parties in obtaining documents and witnesses, the expense involved in trying the case, questions of foreign law, trial docket and other matters. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). As stated in Harvey, the application oí forum non conveniens lies within the sound discretion of the trial court and we will disturb the decision only upon a showing of abuse of discretion. However, the record must show the matters considered by the court in applying the doctrine before we can make a decision. In the case before us we do not know what, if any, facts the court considered when it based its decision upon the interests of substantial justice. There is no reason why a court should not be allowed to raise the doctrine of forum non conveniens on its own but its decision must be supported by facts in the record. Haynes v. Carr, 379 A.2d 1178 (D.C. App. 1977).
Appellant contends the court erred in dismissing the complaint because another action was pending in federal court in Puerto Rico. We agree that the trial court was not compelled to dismiss the action because of the other proceeding in Puerto Rico. We have held that federal district courts and state courts are separate jurisdictions and identical cases between the same parties may be pending in each court at the same time. Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977). In situations where separate causes of action are pending at the same time the first one to judgment is binding on the parties. Carter v. Owens-Illinois, Inc., supra.
The case is remanded to the trial court with directions to consider evidence and facts necessary to invoke the doctrine of forum non conveniens, if the court or either of the parties desire to rely upon the doctrine. | [
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Lyle Brown, Justice.
Appellee David Lewis was awarded judgment against appellants, Old American Life Insurance Co. and National Security Life Insurance Co. Defendants below petitioned the court to set aside the judgment, alleging unavoidable casualty as justification for their failure to appear on the day set for trial. In dismissing that petition the trial court specifically found that they had not complied with Act 123 of 1963; Ark. Stat. Ann. § 27-2106.3 to 27-2106.6 (Supp. 1967). That act provides for the extension of the time for giving notice of appeal in cases where certain specified motions are filed. The sole question on appeal is whether the trial court applied the applicable law in denying the petition to vacate the judgment.
We discussed Act 123 in St. Louis S.W. Ry. v. Farrell, 241 Ark. 707, 409 S.W. 2d 341 (1966). “Act 123 was evidently intended to remedy an awkward situation created by Act 555 of 1953. ’ ’ Act 555 required a notice of'appeal to be filed within thirty days after entry of judgment by the trial court. That requirement had to be abandoned for the benefit of a losing party who might have good reason to file a post-judgment pleading, such as a motion for a new trial, or one of the several motions enumerated in Act 123. Consequently, Act 123 established a procedure whereby the time for filing notice of appeal could be postponed pending the determination of such a post-judgment pleading.
Act 123 does not affect the long established procedures for the setting aside of judgments. It is clear from an examination of the act that the principal subject of all four sections is “notice of appeal”; in fact that phrase appears in ¡every section and a total of seven times in the comparatively short act. Any donbt about the act not affecting existing procedures for review by the trial court of ifs proceedings is dispelled by the last sentence: “Nothing herein contained shall be deemed to limit the right of any party to review of proceedings upon any motion which the law may permit to be filed after expiration of the time for giving notice of appeal.”
Appellants are entitled to have a hearing and determination of their petition under the appropriate statutory procedure.
Beversed and remanded. | [
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George Howard, Jr., Judge.
This is an appeal from the imposition of a one year sentence to the Department of Correction pursuant to a suspension of four years of an original sentence of five years where appellant was required originally to serve one year in the penitentiary.
Appellant contends:
The revocation of the suspended portion of appellant’s original sentence was not authorized by the sentencing provisions of the Arkansas Criminal Code provided by Ark. Stat. Ann. § 41-803(4).
The pertinent facts are: On August 19, 1976, appellant entered pleas of guilty to two counts of theft of property. The trial.court fixed appellant’s punishment at five years in the Department of Correction, on each count, “with four (4) years suspended.” The sentences were to run concurrently.
Appellant was released from the penitentiary in December, 1976.
On March 9, 1978, the State filed a petition for the revocation of appellant’s suspended sentence.
Between September 13, 1977, and February 14, 1978, appellant was convicted of nine misdemeanor charges, including two counts of driving while under the influence of intoxicating liquor and one count of minor in possession. In addition to paying fines, appellant was confined to the county jail for ten days on two of the charges. Because of appellant’s failure to pay an installment due.on a fíne, appellant was taken into custody by officers, but escaped and fled to Crescent City, California. Arkansas police officers were required to make a trip to California in order to return appellant to Arkansas.
On November 28, 1978, the trial court found that appellant had “inexcusably fail[ed] to comply with the conditions of his suspension . . . and he hereby is directed to serve a period of one (1) year in the Arkansas State Penitentiary.”
The force of appellant’s argument for reversal may be briefly summarized as: The trial court was without authority to revoke any part of that portion of the suspension under appellant’s original sentence, and that the original judgment did not set forth any conditions for suspension of the remaining four years of the original five year sentence.
Ark. Stat. Ann. § 41-803 (4) (Repl. 1977) provides in. material part:
If a defendant pleads or is found guilty of an offense other than capital murder,. . . [t]he court may sentence-the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment, . . . (Emphasis added.)
The original judgment of the trial court, as emphasized by appellant, does not contain any expressed conditions relating to the suspension given appellant. However, the presentence report of the probation officer of the trial court, which is a part of the record, does shed some light on the matter.. The report, in relevant part, provides:
“After a plea of guilty to two counts of Theft of Property in Circuit Court on August 19, 1976, Mr. Holland was given a five year prison term with four years suspended. Upon his release from prison, he iw.v to work steadily and stay-out of any and all trouble for the next four years. (Emphasis supplied.)
It is plain that the trial court obviously advised appellant from the bench that as a condition to the suspension afforded him, appellant was required to work steadily and stay out of any and all trouble for the next four years. Moreover, it is equally plain that the conditions were to become operative upon appellant’s release from prison. Appellant does not challenge the . accuracy of the pre-sentence report in any way.
In Thornton v. State, 267 Ark. 675, 590 S.W. 2d 57 (Ark. App. 1979), this Court held that there was substantial compliance with the statutory requirement that a defendant is entitled to a written list of the conditions governing his suspension where appellant was advised explicitly by the trial judge of the conditions. Cain v. McGregor, 182 Ark. 633, 32 S.W. 2d 319.
In Matthews v. State, 265 Ark. 298, 578 S.W. 2d 30 (1979), our Supreme Court has made it clear that a suspended sentence commences at the time a defendant is released from active confinement by the Department of Correction.
While the original judgment speaks in terms of four years of appellant’s five year sentence as “suspended”, the sum and substance of the trial court’s action in making the conditions operative upon appellant’s release from prison and the imposition of a one year sentence to the penitentiary at the close of the revocation hearing, the trial court, indeed, regarded its action as ‘ ‘a suspension of the imposition’ ’ of an additional four years to the original one year sentence to the Department of Correction.
We are persuaded that this record dictates a conclusion that the trial court suspended pronouncement of sentence of the additional four years articulated in the trial court’s judgment of August 19, 1976.
Finally, appellant’s challenge of the trial court’s authority to revoke his suspended sentence is asserted for the first time on appeal. Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978).
Affirmed.
Wright, C.J. and Newbern, J., dissent.
The original trial transcript was not made an exhibit to the revocation proceeding. | [
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Subsets and Splits