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Frank PIolt, Justice.
This is a boundary line dispute between adjoining land owners involving a 16- to 17-foot strip of land. The appellant owns a 40-acre tract on the west and appellee owns 16% acres lying east of the disputed line. When appellant attempted to relocate an old fence line by the construction of a new fence along what lie contends to be the true boundary line, the appellee filed this suit for an injunction. In deciding the issue for the appellee, the court found:
“The old fence row and fence has been along the common boundary of the two tracts of land now owned by the parties for more than a half a century. The parties and their predecessors in title by their actions in relation to said old fence row and fence caused the same to be ‘silently acquiesced’ as the boundary between the two tracts of land. ’ ’
For reversal the appellant contends that the findings of the chancellor are against the preponderance of the evidence.
The appellant purchased his 40-acre tract of land, which adjoins appellee’s 16% acres, in 1956. He presented evidence that when he purchased his lands, the fence went up through some woods; that the seller told him the fence was not the true boundary line; that he did not know appellee or his predecessors in title claimed any interest in the disputed land until 1967; that there never was any mutual understanding or agreement that the old fence constituted the true boundary; that in 1957 or 1958 lie relocated and reconstructed the fence along and ‘ ‘ fairly close ’ ’ to the old fence line to contain cattle and cleared the land on both sides of the fence; that he had no intention of this or the old fence being any recognition of the true boundary line; that no one had “farmed” the land within 100 feet east of the old fence until appellee began using this strip' of land as a turnrow when he. started farming about 1962; that appellee had tried to buy the disputed strip from appellant; that in conversations with appellee, they both understood the old fence was not the true line and that he, appellant, did not learn the exact location until 1967 when a survey was made just before this action.
The appellee purchased his lands in 1961. He testified that the old fence line, between his 16% acres and appellant’s 40 acres, was there when he bought his property, and that he had personally observed its existence for more than 25 years. He has owned other property in the community since 1943. According to appellee, ho had never offered to buy the disputed strip of land from appellant; appellant had never communicated to him any non-recognition of the fence line as being the accepted boundary; appellant had never cleaned up any land on his [appellee’s] side of the fence, it had been “cleaned up for 25 years;” his 16% acres “had been farmed up to the fence” for that length of time; the area was not wooded: “There was no timber there and there haven’t been any. Since I been going out there.” Further, according to appellee’s evidence, both he and his predecessors in title had occupied the lands east of the fence for at least 25 years and had recognized the old fence row and line as the visible boundary for a period of approximately 50 years; neither the appellant nor his predecessors in title had at any time occupied, used or controlled the disputed land east of the old fence line and that the first attempt by appellant to use this disputed strip was in 1967, which action resulted in this lawsuit.
A surveyor testified that in 1967, while conducting a survey in that vicinity, the appellant was present and expressed no knowledge as to where the true line was; acknowledged the old fence line had been used as a boundary; and that appellant made no objection to liis using the old fence line as a boundary.
According' to appellee, the appellant repaired and “re-posted” the old fence about 10 years before this controversy and there was no “change in the location of this old fence line.” This lawsuit resulted when the appellant, or someone, relocated this “old fence” about “eighteen” feet to the east “at night.”
The location of a disputed boundary line, being an issue of fact, is determined by a preponderance of the evidence and on appeal we affirm unless the finding of the chancellor is against the preponderance of the evidence. Mason v. Peck, 239 Ark. 208, 388 S.W. 2d 84 (1965).
The appellant ably argues that to establish a boundary line by acquiescence there must be a mutual or express agreement of the dividing line. However, in Stewart v. Bittle, 236 Ark. 716, 370 S.W. 2d 132 (1963), we said:
“It may be conceded, as claimed by appellant, that there never was any express agreement to treat the fence as the dividing line between the two parcels of land. Such an agreement, however, may be inferred by the actions of the parties.”
To the same effect, see Deidrich v. Simmons, 75 Ark. 400, 87 S.W. 649 (1905); Gregory v. Jones, 212 Ark. 443, 206 S.W. 2d 18 (1947); Tull v. Ashcraft, 231 Ark. 928, 333 S.W. 2d 490 (1960); Weston v. Hilliard, 232 Ark. 535, 338 2d 926 (1960); and Barnes v. Young, 238 Ark. 484, 382 S.W. 2d 580 (1964).
A boundary line by acquiescence may well exist without the necessity of a prior dispute. Gregory v. Jones, supra. Nor is there any requirement of adverse usage up to a boundary fence to establish a boundary by acquiescence. Morton v. Hall, 239 Ark. 1094, 396 S.W. 2d 830 (1965).
The chancellor has the advantage of seeing and hearing the witnesses in evaluating conflicting evidence. We see only the printed material and exhibits. Therefore, when the evidence is in close dispute as to where the preponderance lies, we cannot say the chancellor was in error. Murphy v. Osborne, 211 Ark. 319, 200 S.W. 2d 517 (1947).
In the case at bar, we cannot say that the chancellor’s finding that a boundary line is now established by acquiescence is against the preponderance of the evidence.
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Conley Byrd, Justice.
By this appeal appellants, Euna Scritchfíeld, et al, collateral heirs of Johnnie D. Loyd, deceased, contend that the signature of Johnnie D. Loyd appearing in the attestation clause of his will does not meet the requirements of Ark. Stat. Ann. § 60-403 (Repl. 1971), requiring that the testator’s “signature must be at the end of the instrument.” The stipulation entered into by the parties shows the following:
‘ ‘ Marie Hutto, if called as a witness in this cause, would testify in substance as follows: ‘My name is Marie Hutto. I reside at Damascus, Arkansas, where my husband, Ray Hutto, and I operate a feed mill. On April 20, 1976, Johnnie David Loyd came to our place of business, bringing with him a blank form headed “Last Will and Testament” and asked me to help him make a will. I told Mr. Loyd I did not know anything about these matters and he then asked if I would write what he told me to in the various blanks in the form, as he requested. I did so. Under Mr. Loyd’s instructions, I filled in the blanks in the will form, and this is the instrument which has been tendered for probate as Mr. Loyd’s will. All handwritten portions of the will were written by me, except as hereinafter excepted. Mr. Loyd signed his name “Johnnie D. Loyd’ ’ in the upper left hand portion of the will, just below the printed words “Last Will and Testament” and just above the start of the printed portion of the form. He signed the name “Johnnie D. Loyd” in the attestation paragraph below the body of the will. I signed my name as a Notary Public on the line at the end of the will and inserted my commission expiration date to the left of my signature. Ray Hutto and Ralph Porter were also in our place of business at this time, and at Mr. Loyd’s request, they signed their respective names as witnesses to the will.
Based upon the foregoing facts the trial court ruled that the will was valid. We agree with the trial court.
There is a distinct conflict among the authorities as to whether a signature in an attestation clause qualifies as a signature “at the end.” See 44 A.L.R. 3d 701 § 14. Appellants rely upon In re Estate of George H. Glaze, Deceased, 413 Pa. 91, 196 A. 2d 297 (1964) and Sears v. Sears, 77 Ohio St. 104, 82 N.E. 1067 (1907), to support their contention that a signature in the attestation clause does not constitute a signature “at the end” of the instrument. However, we believe the better rule to be that where the testator places his signature in the attestation clause because he believes that it belongs there and with the requisite testamentary intent, it constitutes a sufficient compliance with the statute requiring the signature to be “at the end.” See In re Morey’s Estate, 75 Cal. App. 2d 628, 171 P. 2d 131 (1946) and In re Schiele’s Estate, 51 S. 2d 287 (Fla. 1951).
Affirmed.
Harris, C.J., not participating.
Attached hereto as an appendix is a photostatic copy of the will. | [
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George Rose Smith, Justice.
This is the second appeal in this case. Gibson v. Gibson, 264 Ark. 418, 572 S.W. 2d 146 (1978). We are of the opinion that the pivotal issue — the appellant’s right to obtain a partition of the property in question — was decided on the first appeal, when all the essential facts were before us. Nevertheless, as the appellees argue several issues that were not argued on the first appeal, we shall discuss the case in some detail.
The facts are simple. The appellant’s husband, Herman Gibson, owned 585.21 acres of land at his death in 1976. He was survived by the appellant, his widow, and by the appellees, two sons by an earlier marriage. Mrs. Gibson elected to take against the will. At Mrs. Gibson’s request the probate court assigned as her dower a life estate in a specified 195.07 acres, exactly one third of the total acreage. Mrs. Gibson then brought this suit in chancery for a partition of that 195.07 acres, asking that the property be divided in kind if possible, and if not, that it be sold. We have statutes providing for the determination of the present value of a life estate. Ark. Stat. Ann., Title 50, Ch. 7 (Repl. 1971).
In the chancery case the appellees filed a motion to dismiss, the exact language of which is pertinent. Attached to the motion was a copy of the probate court order by which that court approved the report of its commissioners, dividing the entire acreage by allotting the widow a life estate in a specified 195.07 acres. The motion to dismiss admitted the plaintiff’s life estate in the land and went on to assert as grounds for dismissal:
3. That a widow, having taken dower in Probate Court, cannot later go into Chancery against the remaindermen and obtain the sale of the fee for pur poses of partition, and the petition should therefore be dismissed.
4. That the plaintiff, widow, who is a life tenant entitled to exclusive possession of said lands . . . cannot maintain a partition suit against the defendants, vested remaindermen, and the petition should therefore be dismissed.
5. That, as admitted in the pleadings, the land described in the petition was divided according to the commissioners and by stipulation of counsel for plaintiff and counsel for defendants and the estate; and dower was allotted to the plaintiff for and during her natural life and has been confirmed by the court . . .
Wherefore, defendants pray that the petition filed herein be dismissed . . .
The chancellor simply dismissed the petition, without specifying the particular basis for the dismissal.
On the first appeal we pointed out that we had held in Monroe v. Monroe, 226 Ark. 805, 294 S.W. 2d 338 (1956), that one in exclusive possession of land as dower is not entitled to a decree of partition against the remaindermen. After the Monroe decision, however, the partition statute was amended to permit any person having an interest in land “as assigned or unassigned dower” to obtain partition. Act 324 of 1957; Ark. Stat. Ann. § 34-1801 (Supp. 1977). We therefore concluded on the first appeal that Mrs. Gibson was entitled to partition. The cause was remanded for further proceedings not inconsistent with the opinion.
On remand the appellees filed an answer asserting various defenses, including want of jurisdiction in the chancery court, res judicata, election of remedies, and es-toppel. After a hearing, at which the probate court proceedings and testimony were introduced, the chancellor again dismissed the case, on what we take to be the plea of res judicata. The chancellor assumed that we were not aware on the first appeal that the 195.07 acres constituted only a third of the decedent’s land, not the whole of it. The chancellor concluded that Mrs. Gibson had already obtained what amounted to a partition in the probate court and could not obtain the same relief in chancery. He accordingly denied the petition for partition. Mrs. Gibson again appeals.
We have said that no principle of law is more firmly settled than the rule that matters decided upon one appeal become the law of the case and govern even this court upon a second appeal. Wilson v. Rodgers, 256 Ark. 276, 507 S.W. 2d 508 (1974). Moreover, the judgment on the first appeal is conclusive not only of every question of law or fact that was actually decided, but also of questions which might have been, but were not, presented. Storthz v. Fullerton, 185 Ark. 634, 48 S.W. 2d 560 (1932). In commenting on the Storthz case we explained the reason for the rule in Moore v. Robertson, 244 Ark. 837, 427 S.W. 2d 796 (1968):
The appellee’s contention is not now available to him, because it coujd 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 the 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.
In the case at bar all the pertinent facts were before us on the first appeal. The record showed that the probate court had awarded dower to the widow, that the commissioners’ report allotting her a life estate in a specified 195.07 acres (which of course could not have been all the land) had been approved, and that on the basis of that allotment the widow sought a partition in chancery, in kind or by sale, as between her as a life tenant and the defendants as remaindermen. The motion to dismiss had specifically asserted that the widow, having taken dower in probate court, could not later go into chancery and obtain the sale of the fee for purposes of partition. Consequently nearly every argument that is now made could have been presented upon the same essential facts upon the first appeal. Hence our decision upon that appeal is conclusive of most of the issues.
We may, however, point out briefly that all the appellees’ present arguments are without merit. The doctrine of election of remedies prevents a person from pursuing two remedies only when they are inconsistent. Kapp v. Bob Sullivan Chevrolet Co., 232 Ark. 266, 335 S.W. 2d 819 (1960). When a party has two or more concurrent and consistent remedies, he may pursue one or all until satisfaction is had. Davis v. Lawhon, 186 Ark. 51, 52 S.W. 2d 887 (1932). That is the situation here.
Mrs. Gibson unquestionably had a right to gc into the probate court to obtain an allotment of her dower. She could not have obtained a sale of the land in that proceeding, because the commissioners found that her life estate could be set aside in kind. That finding precluded a sale. Ark. Stat. Ann. § 62-717 (Repl. 1971); Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909). Indeed, Mrs. Gibson may possibly still not obtain a sale, for the property may be susceptible of a division in kind. Ark. Stat. Ann. §§ 34-1801 and 34-1817.
It has been suggested, apparently on the theory of res judicata, that the probate court might have partitioned the land in the proceeding for the allotment of dower. No such power existed. The probate court, although a court of superior jurisdiction, is also a court of special and limited jurisdiction which has only such powers as are expressly conferred by the constitution or by statute or are necessarily incident to such express powers. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W. 2d 810 (1976). There is no statute conferring upon the probate court the power to partition land. The personal representative certainly has the privilege of applying to the probate court for the sale of land in the administration of a decedent’s estate. Ark. Stat. Ann. §§ 62-2401 and 62-2704 (Repl. 1971). But the probate court’s authority to order a sale does not emcompass the power to order a partition, which is preferably accomplished by a division in kind. Furthermore, the application for a sale must be made only for certain purposes and by the personal representative, not by the widow. There is no language in Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541 (1968), cited by the appellees, indicating that the probate court has the power to partition land. That power simply does not exist.
Since the widow could not have obtained a partition in the proceeding to assign dower, that proceeding cannot be the basis for the pleas of res judicata, election of remedies, and estoppel. The widow, having obtained her dower as an undivided interest in a specified 195.07 acres, has an absolute right to seek partition under the amended statute which we held to be controlling on the first appeal. As we said in Davis v. Lawhon, supra, one may pursue consistent remedies until satisfaction is had.
The appellees perfunctorily argue that the partition and dower statutes deny due process and equal protection, but those contentions were not raised in the trial court and are therefore not before us.
The decree is reversed and the cause remanded with directions that the appellant’s right to a partition of the property be carried into effect.
Byrd, }., dissents. | [
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John A. Fogleman, Chief Justice.
On December 30, 1976, the Chancery Court of Pulaski County entered a decree in an action brought by Frank Henry and others against the mayor and aldermen of North Little Rock and the manager of the North Little Rock Electric Department, holding that the city improperly charged their electrical customers $639,226.24 and ordering a refund, on a pro rata basis. The court denied a request for allowance of attorney’s fees to the attorneys representing the customers in the litigation which resulted in the decree. On February 25,1977, the plaintiffs in the action filed a motion for clarification, stating that the court had misinterpreted their prayer for payment of attorneys’ fees as a prayer for judgment against the defendants for those fees, in addition to the amount of the overcharge, when they had actually requested that these fees be paid from the refunds made to the customers. On March 9, 1977, the chancery court modified its previous decree to require the city to bear all costs of the refund and pay interest on any refunds due but unpaid after April 30, 1977, and retained jurisdiction on the question of allowance of attorneys’ fees to plaintiffs’ attorneys. On April 1, 1977, the chancery court presided over by a chancellor on assignment, ordered the payment of $95,884.31 as attorneys’ fees to John Harmon, Tommy H. Russell and Judith Rogers, who had represented the customers in the litigation. On May 4,1977, the chancery court, with the regular chancellor presiding, set aside this order, but reinstated it on December 27,1978, after a rehearing on the matter. Appellants appeal from this last order or decree, asserting the following points for reversal:
I
PLAINTIFFS’ ATTORNEYS MAY NOT RECOVER ATTORNEYS’ FEES IN QUANTUM MERUIT, BUT MUST RECOVER ON THEIR CONTRACT WITH PLAINTIFFS.
II
ACT 822 of 1977 (CODIFIED AS ARK. STATS. ANNO. § 84-4601) IS NOT APPLICABLE TO THE PRESENT CONTROVERSY.
III
A REASONABLE AMOUNT OF ATTORNEYS’ FEES SHOULD NOT EXCEED 5 PERCENT OF THE TOTAL RECOVERY OF THE TAXPAYERS’ ACTION.
We find no reversible error and affirm the decree.
I
Appellants contend that the attorneys for the plaintiffs in the action were limited to the fee of 25% of the recovery of the original plaintiffs employing them, relying upon Terral v. Poe, 190 Ark. 346, 79 S.W. 2d 69, insofar as it related to a division of attorney’s fees between Terral and Poole. We are unable to see any comparison between that case and this. There Poole, an attorney, accepted employment by Terral as an associate in the trial of two cases for a fee of $100 per cause. When there was a rather large recovery in the two cases, Poole sought to recover $775.62, or 25% of the total fees, on the basis of quantum meruit. We held that Poole was bound by his contract and limited to the fee to which he agreed in the contract. This case might furnish some precedent in a contest between these attorneys and the named rate paying plaintiffs in the litigation. If any of these clients are complaining of the allowance made, it is not reflected by the record. As we understand the record in this case, the action was a class action, which resulted in the recovery of a substantial amount which constituted a common fund. The allowance of attorneys’ fees from a common fund established or augmented through the efforts of the attorneys to whom the fee is allowed is a well recognized practice and is proper. Bradshaw v. Bank of Little Rock, 76 Ark. 501, 89 S.W. 316; Valley Oil Co. v. Ready, 131 Ark. 531, 199 S.W. 915; Marlin v. Marsh, 189 Ark. 1157, 76 S.W. 2d 965.
We do not consider that our holding in City of Ft. Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474, is applicable here, or that it is contrary to the holding in the cases just cited. There nine cities sought to have the fees of their attorneys paid for a proceeding in which they successfully protested a telephone rate increase and refunds to subscribers were ordered. The basis of that decision was that these attorneys were representing the cities, not the rate payers. Here the situation is quite different. The attorneys were representing the rate payers in litigation against the city.
In arguing this point, appellants complain that it is extremely difficult for the court to determine the value of the service of these attorneys, in view of the fact that they did not keep time records and only provided subjective and self-serving estimates as to the time spent on the case. Appellants then assert that the burden of providing accurate and ascertainable records of time spent on behalf of the plaintiffs should be on these attorneys. This argument, which is only stated, without citation of authority, is not convincing and might well be disposed of under the rule of Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606. It would have been desirable to have had time records, if they were kept, but there is not now, and never has been, any rule of law or procedure in this state that requires submission of time records in support of a request for payment of attorneys’ fees. While the time spent is an important element to be considered in determining the reasonable value of an attorney’s services, it is not the controlling factor and is sometimes a minor one. Love v. U.S. F. & G. Co., 263 Ark. 925, 568 S.W. 2d 746. We have recently had occasion to address our attention to the relationship of time records and the expenditure of time in relation to the allowance of attorney’s fees in Lytle v. Lytle, 266 Ark. 124, 583 S.W. 2d 1 (1979). There we found that other factors were just as important as the time devoted to a case. In Marlin v. Marsh, supra, we pointed out that the amount of the recov ery was important and indicated that the trial court properly took into consideration the ability of counsel, the nature and extent of the services rendered and the result obtained. The chancellor who made the allowance here, and whose action was reinstated by the regular chancellor, took these factors into consideration. Although such allowances should not be entirely on a contingent fee basis, they should be such that competent lawyers would not refuse to accept employment in cases of this sort. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829. Naturally, the uncertainty of ultimate recovery is an element to be considered in accomplishing this purpose. We do not consider that the allowance of 15% of the recovery put the allowance on a contingent fee basis. It was an appropriate means of distributing the burden.
II
We agree with appellants and appellees that Act 822 of 1977, which was passed, and became effective, after the entry of the original decree in this case, is inapplicable. Furthermore, we do not understand the decree to be based upon the act.
Ill
Appellants again emphasize the failure of the attorneys to keep detailed time records. They point out that according to their testimony, Harmon estimated that he spent 25 hours per week, Russell estimated 12 hours per week, and Rogers estimated an average of 10 hours per week, during the pend-ency of the cases. Appellants then calculate that multiplying these estimated hours for the period of 16 weeks that the litigation was pending by a factor of $75 per hour, which they say was shown to be reasonable by the attorneys at the hearing, produces a total of $58,800, which is less than two-thirds of the award, but considerably more than the 5% appellants consider reasonable. Although accurate time records would have been helpful in considering the reasonableness of the fee allowance in this case, it is our position that time spent is only one significant factor in such considerations. Lytle v. Lytle, supra. Other factors in this case are at least equal in importance, and may perhaps carry considerably greater weight.
Appellants seek to establish a basis for their position that 5% of the refund was a reasonable fee allowance by referring us to cases involving class actions where the fund involved ranged from $137,600 to $7,200,000 and attorneys’ fees were not allowed on a percentage basis. By arithmetical calculation they arrive at percentages ranging from 4% to 5% of the funds involved in those cases, as against 15% allowed in this case. Appellants then somehow translate our reduction from $15,000 to $10,000 of the fee allowed in apartition suit (Cole v. Scott, 264 Ark. 800, 575 S.W. 2d 149) into an expression of this court’s intention that 4% to 5% will constitute the outer perimeters of a chancellor’s discretion in awarding attorneys’ fees from a common fund. We find no language in that opinion indicative of any such intention. As a matter of fact, we are not aware of any recent decision in which this court has passed upon allowances of attorneys’ fees where the percentage of the fund or recovery has been given any significance. We have enumerated pertinent factors on several occasions. See, e.g., Lytle v. Lytle, supra; Robinson v. Champion, 251 Ark. 817, 475 S.W. 2d 677; Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224.
It seems to us that the assigned chancellor, whose award was reinstated by the regular chancellor, took into consideration many of these factors. He made these findings:
1. There has been a substantial economic benefit bestowed upon the class;
2. There was personal and professional hardship incurred by the attorneys of record;
3. There was a vindication of an economic right;
4. The ligitation was novel;
5. The plaintiffs’ case was difficult and there was substantial time devoted to the case;
6. Counsel possessed extraordinary skill and competence.
John Harmon testified about his experience in dealing with utility rates and with class actions and anti-trust proceedings and his previous practice of public utility law generally. He anticipated a harmful effect upon his practice in North Little Rock because he detected an adverse attitude toward him by members of the city council when he appeared before them in connection with his practice after he became engaged in this litigation. He related the necessity for lengthy discovery processes and the protection of confidential sources of information gained from employees of the electric department, and classified the litigation as complex.
Expert testimony was given by Messrs. Walter Davidson and Dale Price of the Pulaski County Bar Association. Davidson told of his experience in public utility practice over a period of three to four years, and of the scarcity of attorneys engaged in that type of practice, which he called a “specialty-type” item. He considered a rate of $70 per hour in that work as a conservative figure designed to promote a continuing relationship with a client, but felt that a higher fee basis was appropriate in a case such as this, where the establishment of such a relationship was not a factor. In his opinion, considering the results and the fact that collecting any fee was dependent upon a favorable termination of the litigation, 25% of the recovery was reasonable. He considered the complexity of the case, the experience of the attorneys involved, the results accomplished, the urgency of the case, other business lost, the lack of a continuing client relationship and the contingency of the compensation as pertinent factors in fixing the amount of the fee.
Price considered the specialized nature of utility rate cases, the lack of a prospect of a continuing lawyer-client relationship, the urgency of the case, the contingency of the fee and the fact that the suit was against a political entity in arriving at his opinion that a fee of 20 to 25% of the recovery would be reasonable. He expressed the opinion that fees of $75 to $100 per hour, and “even upwards” were a fair hourly rate in the locality, and said that in fixing an hourly rate, the political factor, the potential necessity for discarding other business, and the urgency of the case were important factors in determining whether the hourly rate should be $75, $100, or even more.
In view of the record before us, we are unable to say that there was any abuse of discretion in the allowance of attorneys ’ fees in this case, which we should have to do in order to reverse or modify that award. An important factor in our consideration of the fee allowance in this case is the realization that inadequate compensation will cause attorneys who are competent to handle this type of litigation to shun it, or if they accept it, fail to devote sufficient time to adequately prepare or present the case. This is an appropriate consideration in matters of this sort. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829. The individual rate payer ordinarily cannot afford to employ counsel because attorneys’ fees and other expenses could be expected to exceed his prospective recovery. If attorneys do avoid employment such as that accepted by the attorneys in this case because they cannot expect to be adequately compensated, even if they are successful, there would be few cases where excessive charges would ever be refunded. The fact that no one who is the beneficiary of the recovery is complaining about the award is not without significance. The standing of appellants in this matter is not clear, even though the abstract of the record does not reveal that it was ever challenged in the trial court.
The trial court had considerable discretion in making fee allowances. We are unable to say that the fees allowed were indicative of any abuse of the discretion of the chancellors.
The decree is affirmed.
Hickman, J., not participating.
Special Justice A. D. McAllister, Jr., concurs in.part and dissents in part. | [
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Darrell Hickman, Justice.
The only issue on appeal in this case is whether a non-resident of Arkansas, who contracted to buy Arkansas land, is subject to the personal jurisdiction of an Arkansas Court in a foreclosure suit on the land.
This lawsuit involves the sale of land located in Crittenden County, Arkansas. The appellant, M. E. Ratliff, signed a contract to buy the land in November, 1976; in March, 1977, the transaction was closed. However, the named purchaser when the deal was closed was not Ratliff, but the W. D. George Cotton Company, a company in which Ratliff owned half the stock.
Two Mississippi banks held mortgages on the land. When the mortgage obligations were not met, the banks brought a foreclosure action against the seller-appellee, who made the. appellant a third party defendant. The appellant made a special appearance, which he has preserved, to argue that he is not subject to suit in this case in Arkansas. The chancellor held otherwise and we agree with the chancellor’s decision.
It is not disputed that the appellant is a resident of Tennessee, that the negotiations took place in Tennessee, and that the transaction was closed.in Tennessee. The chancellor held that Ratliff had an interest in the land and Arkansas had personal jurisdiction under Ark. Stat. Ann. § 27-2502. That statute reads in part:
C. Personal jurisdiction based upon conduct.
1. A court may exercise personal jurisdiction over,a person, who acts directly or by an agent, as to (cause of action) (claim for relief) arising from the person’s
(e) having an interest in, using, or possessing real property in this State; ...
This part of the statute was held to be constitutional in Bowsher v. Digby, 243 Ark. 799, 422 S.W. 2d 671 (1968). The due process clause of the Fourteenth Amendment to the. United States Constitution requires a defendant have certain minimum contacts with a state before the courts of that state can exercise jurisdiction over him. International Shoe Co. v. Washington, 326 U.S. 310 (1945). We believe the contracts provided for in the part of the statute quoted above are sufficient to justify the exercise of jurisdiction by our courts over causes of action arising out of such contacts. See Krone v. AMI, Inc. 367 F. Supp. 1141 (E.D. Ark. 1973).
The chancellor’s findings were based on conflicting testimony. The appellees offered testimony that because Ratliff was separated from his wife and a divorce action might be filed, the property, contrary to the provisions of the contract, should be placed in some name other than his. At the March closing the papers were changed to show that the W. D. George Cotton Company would be the buyer. The purchase price remained the same. Two witnesses testified that the reason the buyer’s name was changed was because Ratliff might be involved in a divorce action. A lawyer from Mississippi, who was present at the closing, testified as follows:
Q. What I am concerned with, Mr. Freeland, prior to March 4,1977, were the documents or your information or whatever you prepared, was it for M. E. Ratliff, individually, or W. D. George Cotton Company?
A. The contract was between M. E. Ratliff, individually, and Mr. Thompson’s corporations. All of the documents were prepared for M. E. Ratliff, individually.
Q.. Well, what happened about them having to be changed to W. D. George Cotton Company? Were you present when any discussion occurred about this between Mr. Ratliff, Mr. Thompson?
A. On the day of the closing, the morning of the closing
Q. All right, sir.
A. I had the documents prepared for signature by Mr. Ratliff, individually. There was a problem with regard to Mr. Ratliffs wife, whose name, I believe, is La-Donna A. Ratliff. There was a problem as to, whether or not, she would be willing to sign the deed of trust in Tennessee and the mortgage in Arkansas. They were estranged at the time.
Q. Who advised you of that fact?
A. Mr. Ratliff.
Q. All right.
A. And he suggested that —
Q. Now,, who is “he?”
A. Mr. Ratliff suggested that the transaction not be closed in his name, individually, but that it be closed in the name of the W. D. George Cotton Company. And that, as far as I know, was the first time they came into the picture.
Ratliff denied that this was the case. He said his original contract had been abandoned by mutual consent and that he did not suggest the name be changed.
The chancellor, in announcing his findings, said:
. . . But it does appear to the Court that at the time of the execution of the contract by Mr. Ratliff, he became the equitable owner of certain Arkansas realty. That the passing of title to W. D. George Cotton Company, Inc. was done at his request and suggestion. The Court finds there’s never been any abandonment of that contract. And all that has expired subsequent to the execution of that contract was with Mr. Ratliff s knowledge and at his direction.
Therefore, it was simply a question of fact. The chancellor found that Ratliff had an interest in Arkansas realty and that this cause of action arose out of that interest.
On review we look to see if the chancellor’s finding of fact is clearly erroneous. Rules of Civil Procedure, Rule 52. Since we cannot say that the chancellor’s conclusion was erroneous, we affirm the decree.
Affirmed.
Harris, C.J., and Byrd, J., not participating. | [
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George Rose Smith, Justice.
This is an appeal by Barry Brazil from an order finding him to be in contempt of court and fixing the punishment at a $1,000 fine and a three-day jail sentence, the latter being stayed during the appeal.
In 1979 the Board of Dental Examiners brought suit to enjoin Brazil and his wife, who are not licensed dentists, from practicing dentistry. The final decree found that the defendants, doing business as American Denture Center, had (1) made dentures without a work authorization from a licensed dentist, (2) had offered their services to the public through media advertising, and (3) had offered to sell, repair, or alter dentures, all in violation of Ark. Stat. Ann. §§ 72-540 and -545 (Repl. 1979). The decree enjoined the defendants “from selling or delivering or offering to sell or deliver to the general public the construction, repair, reproduction, duplication, alteration, adjustment, cleaning, polishing, refinishing, or in any other manner processing of any artificial or prosthetic tooth or teeth, bridge, crown, denture, restoration, appliance, device, structure, or material or orthodonic appliance or material to be worn or used in the mouth.”
In 1982 the Board filed a motion asking that Barry Brazil be held in contempt for having violated the court’s order by treating Mary Ross on January 16 and 23, 1982. After a hearing the chancellor found that Brazil had violated the order by treating Mary Ross. This appeal from that order was transferred to us by the Court of Appeals.
The facts are not seriously in dispute. After the injunction was issued, the Brazils conducted their business by taking Dr. Burnett, a licensed dentist, with them as they traveled over the state in a mobile dental van. On January 9, 1982, Mary Ross went to the mobile unit in Dardanelle and saw Dr. Burnett, who took the initial impressions of her mouth. She returned a week later and was treated only by Barry Brazil, who took wax “bite rim” impressions of her mouth. She again returned on January 23 and obtained her dentures from Barry Brazil, who delivered her dentures (which did not fit) and gave her some glue to use on the dentures for two weeks. She was not attended by Dr. Burnett on that visit. She went back again on February 6, but the results were unsatisfactory.
Brazil’s own testimony is hard to follow, as he was to some extent evasive, but his attorney abstracts part of it in these words:
On the 23 of January, I saw her and gave her some glue and told her to come back in two weeks for another fitting. I don’t remember from visit to visit if Dr. Burnett treated her directly or not. He treats a lot of patients. I did it for him sometimes. I gave her the dentures by Dr. Burnett’s instructions. On Jánuary 23,1 don’t know if Dr. Burnett or anyone else examined Ms. Ross. I personally handed her the dentures. I don’t remember the visit on February 6. I remember repairing, shortening and modifying her dentures. I painted white impression paste on the inside of the denture. It shows the areas of pressure on the gum. Then I gave the dentures back to her to put in her mouth. I didn’t just modify them without checking that they were placed correctly. I could tell by the bite relationship of the teeth, and I modified the dentures that day. I don’t remember if Dr. Burnett saw her that day.
The appellant’s brief misses the point, for he argues essentially that the original decree required only that he obtain written work orders from a licensed dentist, which he has done. The decree, however, also enjoined Brazil from delivering dentures to the general public and from altering or adjusting them, all of which he has admittedly done. Appellant’s argument is that the statute was changed after 1980 by an amendment of § 72-543 (Supp. 1981), that he was not charged with a violation of the new statute, and that the injunctive order was therefore void and may be collaterally attacked. We are not convinced that the language of the order went beyond the statute, but even if it did the appellant should have sought a modification of the order rather than violating it. As we said in Stewart v. State, 221 Ark. 496, 254 S.W.2d 55 (1953): “That the petitioners thought the order too comprehensive is of course immaterial, since it was their duty to obey even an erroneous decree as long as it continues in force. Carnes v. Butt, Chancellor, 215 Ark. 549, 221 S.W.2d 416 [1949].” We may sum up by saying that apparently Brazil thought he could continue to treat patients himself as long has he had a written work order based upon a licensed dentist’s initial examination of the patient. That view, however, was contrary to the language of the injunctive order and cannot serve as a defense to the citation for contempt of court.
Affirmed. | [
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Frank Holt, Justice.
Pursuant to a written contract, appellant built a home for the appellees. The undisputed evidence established that the concrete foundation was poured in water and mud. When the ground dried, the foundation cracked and the house settled, creating numerous other defects in the house. Appellees’ house was repaired at a cost of approximately $19,000.
The appellees filed suit, initially on a theory of breach of an implied warranty that the house was to be constructed with sound workmanship and proper construction. Before trial the complaint was amended by alleging a breach of written provision of the contract, which stated that the work was to be completed in a workmanlike manner according to standard practices. At a nonjury trial, when the appellees rested their case, the appellant moved for a directed verdict on the ground that the appellees had failed to give notice to appellant of the alleged breach of warranty, citing cases involving breaches of warranty in the sale of goods. Ark. Stat. Ann. § 85-2-607 (3) (Add. 1961). The court denied the motion. The appellant rested his case, choosing to stand on his motion for directed verdict. Two days after the court took the case under advisement, the appellees sought to amend their complaint to conform to the proof, alleging negligent construction in that the work was not completed in a workmanlike manner according to standard practices. The court allowed the amendment to conform to the proof and entered judgment for the appellees “[u]pon consideration of the pleadings and amendment to the pleadings to conform to the proof...” without specifying whether the judgment was founded on the warranty theory, the negligence theory, or both theories. Appeal was taken to the Court of Appeals, which certified the case to this court because it presents a question in the law of torts. Rules of the Supreme Court and Court of Appeals, Rule 29 (1) (o).
We first discuss appellant’s contention that the court abused its discretion in allowing the appellees to amend their pleadings to conform to the proof after both parties had rested and the matter had been submitted to the court for a decision.
ARCP Rule 15 (b) provides:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.
This rule is identical to the corresponding federal rule. According to Wright and Miller, Federal Practice and Procedure: Civil § 1493, “[a] party who knowingly acquiesces in the introduction of evidence relating to issues that are beyond the pleadings is in no position to contest a motion to conform. Thus, consent generally is found when evidence is introduced without objection . . . .” Here, the evidence relating to the issue of negligent workmanship, as well as breach of warranty with respect to good workmanship, was testimony that the foundation was poured in water contrary to standard practice and good workmanship. No objection was made to the introduction of this evidence. Unlike T. H. Epperson & Son, Inc. v. Robinson, 274 Ark. 142, 622 S.W.2d 668 (1981), we cannot say that the appellant was prejudiced by the amendment of the pleadings. There, the amendment to the complaint had the effect of substantially reducing the plaintiff’s burden and presenting the defendant with a much more difficult claim to meet than had been pleaded before trial. Here, the elements of the claim pleaded before trial and the claim pleaded in the amendment to conform to the proof were substantially the same. The pretrial pleadings put the appellant on notice that he would be required to meet a claim that the foundation was not completed in a workmanlike manner according to standard practices. The amendment simply restated the same claim attaching a different label to it.
The appellant argues that an amendment may not substantially change the claim or defense and cites in support of this contention O’Guinn Volkswagen, Inc. v. Lawson, 256 Ark. 23, 505 S.W.2d 213 (1974); and St. Louis I.M. & Ry. Co. v. State, 59 Ark. 165, 26 S.W. 824 (1894). Suffice it to say that both cases predate the Arkansas Rules of Civil Procedure, which include Rule 15 (b). Nothing in Rule 15 (b) precludes, under the facts of this case, an amendment of the pleadings by adding a theory of negligence to the theory of breach of warranty. See Moore’s Federal Practice par. 15.13 [2], which cites many federal cases construing Rule 15 (b) to allow amendments to conform to the evidence where the cause of action is changed and the opposing party is not prejudiced. No prejudice is demonstrated here. Furthermore, Rule 15 (b) provides that the court may grant a continuance to enable the objecting party to meet evidence relevant to issues not pleaded before trial. The record reveals that the appellees suggested to the trial court, in their memorandum brief in support of their amendment to the pleadings, that if the appellant deemed himself prejudiced, the court allow an additional hearing on the matter. The appellant never availed himself of this opportunity to correct any possible prejudice, responding only that allowing the amendment was an abuse of discretion. In our view the trial court did not abuse its discretion by allowing the appellees to amend their pleadings to conform to the proof.
Consequently, we need not reach appellant’s remaining contention that the court erred in denying his motion for a directed verdict on the ground that appellees failed to give notice to the appellant of the alleged breach of warranties.
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Robert A. Dudley, Justice.
The issue in this case is whether the Interstate Agreement on Detainers Act, Ark. Stat. Ann. § 43-3201 (Repl. 1977), is applicable to a detainer based on a petition for revocation of probation which does not allege the commission of a subsequent offense. In 1980, appellant entered a plea of guilty to two felonies in Benton County and was placed on three years probation. Two months later a petition for revocation of his probation was filed alleging that appellant had not reported to his probation officer and had absconded. When appellant failed to appear at the hearing, a warrant was issued for his arrest. Subsequently, appellant was convicted on an unrelated charge in California and sentenced to two years in the California Department of Correction. A detainer, based on the outstanding Arkansas warrant, was then placed on appellant in California. Appellant requested that a final disposition of the alleged probation violation promptly be made under the Interstate Agreement on Detainers Act [hereinafter referred to as Agreement]. The prosecuting attorney refused to honor appellant’s request for extradition and trial. Eight months later appellant was returned to Arkansas for a hearing. He moved to dismiss the petition alleging that the Agreement requires the State to dispose of the complaint against him within 180 days of his request for final disposition. The trial court found that appellant had already been tried on the basic charge and that a hearing to revoke probation does not constitute trial of an “untried indictment, information or complaint” within the purview of the Agreement. We affirm. This case was certified to the Supreme Court by the Court of Appeals since it involves the construction of an Arkansas statute. Rule 29 (1) (c).
The Interstate Agreement on Detainers is an interstate compact to which both Arkansas and California are signatories. Article III provides that where a detainer is lodged against a prisoner based upon an untried indictment, information or complaint of another state, the prisoner, upon request, must be brought to trial on the untried charges within 180 days. Ark. Stat. Ann. § 43-3201 Art. Ill (a). Failure to accord a timely trial may mandate dismissal of the underlying charge. Art. III (d); but see Young v. Mabry, 471 F. Supp. 553 (E.D. Ark. 1978), aff’d, 596 F.2d 339 (8th Cir.), cert, denied, 444 U.S. 853 (1979). The compact is designed to standardize interstate rendition procedures in order to protect the inmate’s right to speedy trial and reduce any uncertainties which might obstruct programs of prisoner treatment and rehabilitiation. Ark. Stat. Ann. § 43-3201 Art. I; United States v. Mauro, 436 U.S. 340 (1978); Capalongo v. Howard, 453 N.Y.S.2d 45 (N.Y. App. Div. 1982); Camp v. United States, 587 F.2d 397 (8th Cir. 1978).
Appellant contends that the State’s petition to revoke his probation is an untried complaint within the scope and meaning of the Agreement. This is a case of first impression in Arkansas. Although some courts have held otherwise, see Gaddy v. Turner, 376 So.2d 1225 (Fla. App. 1979), we are persuaded by the reasoning of the courts that have held a probation revocation proceeding not to involve “untried” matters within the purview of the Interstate Agreement on Detainers Act. See e.g., Capalongo v. Howard, supra; People v. Jackson, 626 P.2d 723 (Colo. Ct. App. 1981).
The Interstate Agreement on Detainers Act, Ark. Stat. Ann. §43-3201 (Repl. 1977) by its express terms applies only to a detainer based on an untried indictment, information or complaint. Under the principle of noscitur a sociis, we interpret the terms “untried” and “complaint” as used in the Agreement as being synonymous with, or at least in the nature of, an untried “indictment” or “information.”Altus Cooperative Winery v. Morley, 218 Ark. 492, 237 S.W.2d 481 (1951). A charge against a defendant does not remain “untried” after a defendant has pleaded guilty. A plea of guilty is itself a conviction; nothing remains but to give judgment and determine punishment. Boykin v. Alabama, 395 U.S. 238 (1969). As stated by the Tennessee Court of Criminal Appeals:
The term “untried” refers to matters which can be brought to full trial. In a probation revocation proceeding, the trial has already been held, and the defendant convicted. In such a hearing, the defendant comes before the court in a completely different posture than he does at his trial before conviction.
Blackwell v. State, 546 S.W.2d 828 (Tenn. Crim. App. 1976); see also Morrissey v. Brewer, 408 U.S. 471 (1972); Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981).
The petition to revoke appellant’s probation did not charge him with committing a crime prior to completion of his sentence. Since appellant had entered a plea of guilty on the charges underlying the original sentence of probation, there was nothing “untried” within the meaning of the statute. In our opinion, a charge of violation of probation, absent an allegation of the commission of an indictable offense, is not an “untried indictment, information, or complaint” within the scope and meaning of the Interstate Agreement on Detainers Act. The trial court was correct in refusing to dismiss the petition.
Affirmed.
Smith, J., concurs.
Purtle, J., dissents. | [
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Holt, J.
January 5, 1939, appellant (plaintiff below) filed suit in ejectment in the Jackson circuit court against appellee (defendant below) for possession of certain town lots and the rents accruing therefrom. The property was described as “lots 10, 11 and 12 of block 21 W of the town of Swifton, Jackson county, Arkansas.” He based his right to recover upon a tax deed from the state of Arkansas, dated May 1, 1936, alleging that the state acquired title to the lots by forfeiture and sale for the nonpayment of the taxes for the year 1931, and under the further claim that the state’s title to said lots, as above described, was confirmed by decree of the Jackson chancery court, on February 29, 1937, under the provisions of act 119 of 1935..
The defendant (appellee) answered by a general denial and specifically alleged that the deed relied upon by appellant was void for many reasons, among them being the two here relied upon:
“First. That the description of the land in the assessment, levy, advertisement, sale, certificate of clerk, proceeding’s in confirmation, and the commissioner’s deed, is indefinite and uncertain and hence renders the deed and all proceedings leading up to its execution void.
“Second. That the land was assessed en masse, the tax levied, the advertisement, sale, certificate, confirmation and deed also shows en masse, and this fact is further relied upon as rendering the whole proceeding leading up to the execution of the deed and the deed void. ’ ’
By agreement the cause was transferred to the chancery court for trial.
The trial court found (quoting from the decree): “That land described as lots ten (10) eleven (11) and twelve (12) of block twenty-one (21) W of Swifton, Arkansas, was returned delinquent for the taxes sold to the state and afterwards certified to the state, and by the state sold to the plaintiff under the deed exhibited to the complaint; that said sale was confirmed 'by the decree-of the chancery court of Jackson county, Arkansas, prior to the date of said deed.
“The court further finds that by reason of the invalidity and indefiniteness of the description all proceedings had and done under the purported proceedings against defendant’s lands are void and the court was without power to confirm the forfeiture and sale of defendant’s land,” and dismissed appellant’s complaint for want of equity.
It will be observed that the chancellor based his decree in favor of appellee on the sole ground that the tax sale was void because of an imperfect and invalid description of the town lots in question and, therefore, that there was lacking the power to sell. It is true the rule is that the property must be sold under a proper and valid description in order to effect a valid sale, and that where there is an imperfect or invalid description there is a lack of power to sell, and the confirmation act, act 119 of the Acts of the Legislature of 1935, does not shut out the defense of an invalid description. It, there fore, becomes necessary to determine whether the description, supra, is so imperfect as to render it void.
Appellee nrges that the description is imperfect, indefinite, and invalid solely because the letter “W” appears after block 21, and cites as authority for this contention the case of Halliburton v. Brinkley, 135 Ark. 592, 204 S. W. 213. In that case the following description was held void: “N of RR Frl. SW¼, Sec. 26, T. 6 N., R. 7 E., 125 acres.”
It was there said: “This court has held that a description of land in a tax deed is sufficient if the description itself furnishes a key through which the land may be definitely located by proof aliunde. Kelly v. Salinger, 53 Ark. 114, 13 S. W. 596; Lonergan v. Baber, 59 Ark. 15, 26 S. W. 13; Buckner v. Sugg, 79 Ark. 442, 96 S. W. 184. Of course, the converse of this proposition is true; that is to say, extrinsic evidence is not admissible to cure or perfect a description which in itself is void and offers no key or suggestion by which the land may be located. The sufficiency of the description in the tax deed in the instant case was fully considered when the case was before us on former appeal. Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, 1 A. L. R. 1225. This court said at that time:
“ ‘In special statutory proceedings to enforce tax charges against lands, the abbreviations employed must have been in such general use and knowledge in reference to government surveys that the meaning thereof will be intelligible, not only to experts but also to persons with ordinary knowledge of such matters. ’
“And referring to the use of the letters ‘RR’ in that description further said: ‘The abbreviation “RR” is not an abbreviation commonly used to designate government subdivisions. ’Government surveys were not made with reference to railroads. The abbreviation “RR” does not necessarily convey the meaning of railroad to one of only ordinary experience in land titles. As suggested by appellants (referring to appellants on that appeal), the letters could have reference to Ridge Road or River Road. It might refer to any natural or artificial monument in mind ’. ’ ’
It is our view, however, that that case does not control here.
According to the undisputed record before us, in which there appears a plat of the town of ‘Swifton, there is but one block numbered 21 in the town and this 'block embraces the three lots in question. The letter “W” is a common abbreviation used in land descriptions generally. No one suggests that it could mean other than “west.” It adds nothing to the description and takes nothing from it. Ve think that the property can be readily located from this description; that the description is good.
Appellee next contends that since the lots were assessed and sold en masse that this renders the sale and deed void.
On the record here it appears that “lots 9, 10, 11 and 12, block 21 W, in the town of Swifton,” were assessed, the tax levied, the lots advertised, and the sale made en masse, and that title in fee to lots 10,11, and 12, block 21 W, in the town of Swifton, Jackson county, Arkansas, was confirmed in the confirmation suit, supra, in the state of Arkansas under the provisions of act 119 of 1935. It is undisputed here that appellee took no action to contest or avoid the tax sale within the year allowed after the date of the confirmation decree confirming the title to this property in the state of Arkansas, which she might have done under § 9 of act 119, swpra.
It has been held by this court that a tax deed which shows on its face a sale of separate town lots en masse for a lump sum is invalid. Campbell v. Sanders, 138 Ark. 94, 210 S. W. 934. If, therefore, the sale en masse cannot be treated as a defect, or irregularity, in the sale that could be cured by the confirmation decree in the suit by the state of Arkansas, under act 119, supra, then we would be compelled to hold the deed void. It is conceded, however, in the instant case that the taxes assessed were due and unpaid, the insistance being that the taxes should have been proportionally assigned against each lot separately. The power to sell,, therefore, existed.
Section 9 of act 119, supra, among other things, provides : ‘ ‘ The decree of the chancellor confirming the sale to the state of such real property, as aforesaid, shall operate as a complete bar against any and all persons, firms, corporations, quasi-corporations, associations and trustees who may thereafter claim said property [sold for taxes] except as hereinafter provided; and the title to said property shall be considered as confirmed and complete in the state forever.” Then follows the saving clause which does not apply here.
It is our view that while the sale en masse was such a defect, or irregularity, as would render the sale voidable, this defense should have ¡been made in the confirmation suit of the state of Arkansas, or within a year thereafter, by appellee, and not having been made, the effect of the confirmation decree cured this irregularity, since the power to sell existed.
We think the principles announced in one of our most recent cases on the subject, Commercial National Bank, Trustee, v. Cole Building Company, 200 Ark. 212, 138 S. W. 2d 794, apply here. In that case it was sought to set aside a tax sale and to avoid the state’s deed on the ground that the sale was made on a day not appointed by law, and there this court said:
“In the instant case it is not questioned that a valid tax had been imposed, and that the tax had not been paid. It was, of course, an ‘irregularity and illegality’ to sell the land on a day not appointed by law, which rendered the sale void, and against which relief would have been granted if asked at an appropriate time. This defense might well have been interposed against the rendition of the confirmation decree; but it was not, and, although the sale was void for the reason stated, it was confirmed and held valid. The court had the jurisdiction to render this decree, and it is impervious to the collateral attack now made upon it if the power existed to sell the land.
“It was said in Berry v. Davidson, 199 Ark. 276, 133 S. W. 2d 442, that, ‘If there are any taxes levied or as sessed against the land, however defectively that mav have been done and when the taxes shall not have been paid, the state has the power to sell.’
“Here, the power to sell existed. In pointing ont the distinction between act 296 and act 119, supra, it was said, in the case of Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251, that ‘Now, act 119 is not thus restricted, and we think the effect of confirmation decrees rendered pnrsnant to its provisions is to cnre all tax sales where there was not lacking power to sell, that is, all sales for taxes which were dne and had not been paid. ’ It is conceded that the taxes for which the lands here involved were sold, were valid, were dne, and were not paid, and the power to sell, therefore, existed. The sale on a day not authorized 'by law was an ‘illegality and irregularity’ which rendered that sale void; but as the power to sell this land existed, this defense should have been interposed in the confirmation suit, and not having been interposed, it cannot now be asserted. ’ ’
The decree of the lower court is, therefore, reversed, and the cause remanded with directions to confirm appellant’s title as against appellee and for other proceedings not inconsistent with this opinion. | [
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Smith, J.
The opinion in this case would be of interminable length should we recite and discuss all the questions of law and fact raised by the various pleadings in the ease and the voluminous testimony taken. We shall, therefore, be content to state our conclusions upon the issues which we think should control the decision of the ease.
Two suits were brought of a similar nature, which were consolidated for trial, and both were disposed of in a single opinion by the chancellor and by a single decree. The controlling questions are substantially identical in the two cases, and a statement of the facts in one will suffice to explain the issues in the other.
Appellee, 'Gregory, filed a suit against appellant, Bishop, in which he alleged his ownership of a tract of land containing 120 acres there described. Gregory deraigned title from S. E. Adams and wife to the lands here in litigation under a deed to him from them of date June 9, 1937, title being taken subject to a deed of trust securing a debt of $14,800 due one Douglass. Other lands not involved in this litigation were included in the Adams ’ deed. After securing this deed, Gregory obtained the deed of the Cache River Drainage District to which district the lands had been sold under a decree foreclosing the lien of the district for unpaid drainage taxes for the years 1930 and 1931. It was alleged in the complaint that Bishop had obtained a deed from the’ State Land Commissioner, dated January 17, 1937, based upon a forfeiture to the state for nonpayment of the 1930 general taxes. This deed was alleged to be void because of 78 alleged defects in the sale of the land for the taxes due thereon. The sale was held void in the decree from which is this appeal, and that finding is not questioned.
Bishop filed an answer, in' which he questioned Gregory’s right to acquire the deed from the drainage district, for the reason that Gregory was a commissioner of the drainage district. He alleged also that Gregory had assisted him in purchasing the land from the state, and had agreed to assist him in acquiring the title of the drainage district. Bishop alleged that Gregory acted as his agent in purchasing the land from the drainage district, and had violated his agency by taking title in his own name, and he prayed that Gregory’s purchase be construed as creating a trust for his benefit.
The testimony is voluminous, and is in irreconcilable conflict upon the question of fact as to Gregory’s agency for Bishop in buying the land, and no useful purpose would be accomplished by setting it out in this opinion. It was reviewed by the chancellor in the opinion prepared by him upon which the decree here appealed from was based. The chancellor found and declared that no agency existed. Upon a careful consideration of the testimony, we are unable to say that this finding is contrary to a preponderance of the evidence.
Bishop insists that Gregory, not only agreed and . undertook to buy the land for him, but that, in no event, did Gregory have the right to buy the land for himself inasmuch as he (Gregory) was one of the commissioners of the drainage district.
In the second suit- filed by Gregory it was alleged that he had in similar manner acquired title to two other tracts of land, one of which had been purchased by the defendant, Troxler, the other by Troxler’s wife, who were made defendants, from the State Land 'Commissioner. The invalidity of the sales to the state upon which those deeds were based is alleged and their cancellation was prayed, and was granted by the court upon the finding that the sales were invalid. What we have said and shall say is alike applicable to both cases. The chancellor granted Gregory the relief prayed, and this appeal is from that decree.
It appears without dispute that the Cache River Drainage District had become hopelessly insolvent. The district embraced about 110,000 acres of land lying and being situate in Craighead, Jackson and Lawrence counties, the lands' here in controversy being a part thereof. The district had a bonded indebtedness of more than half a million dollars in principal and an unstated and very indefinite amount of interest past due on the bonds. The district made default in 1929, and practically no payments were made to the bondholders after that time. The landowners generally ceased paying taxes, and foreclosure of the lands for the betterment assessments due the district usually resulted in sales to the district. The lands here embraced had been sold to the district for taxes due thereon.
An attempt was made to extricate the district from this condition by an application to the Reconstruction Finance Corporation for a loan of 25 per cent, of the principal indebtedness of the district. It was agreed that the loan would be made, but the matter dragged along without consummation until January 31, 1936, at which time the offer to make the loan expired by its terms. There was dissatisfaction and crimination and recrimination, detailed in the record, which we shall not review in this opinion, as to the manner in which the affairs of the district had been managed. Finally, two of the commissioners were removed, and were replaced by Gregory and one Townsend.
Thereafter, the Reconstruction Finance Corporation was induced to renew its offer to make a loan, and there was a protracted proceeding in the bankruptcy court which finally eventuated in an agreement on the part of the bondholders to accept 33 1/3 per cent, of the face value of their bonds in payment thereof. It became necessary for the drainage district to raise considerable money to meet the terms of this settlement and to do so expeditiously. To that end the district began selling lands which had been sold to it for the nonpayment of betterment assessments. Gregory had purchased the lands here in litigation before the bankruptcy proceeding was filed, where, with the approval of the federal court, it was agreed that the district would permit re-demptions at the general rate of $1 per acre where the total claims of the district exceeded that amount, but this arrangement was not to apply to current or subsequent taxes.
It does not appear to be questioned that Gregory paid the district a consideration which would have been sufficient had some other person owned and had redeemed the lands, his redemption being evidenced by the quitclaim deed of the district, which he executed to himself as an official of the drainage district. The insistence is that, being a commissioner of the district, his purchase of the land was contrary to public policy and should be declared void on that account. 'Cases are cited which hold that officials of an improvement district may not buy at sales for the taxes due the district; but these cases are without application here, for reasons presently to be stated.
Gregory was the owner of lands in the district before he acquired title from Adams to the lands here in controversy. The act under which the drainage district was created required that the commissioners of the district be owners of lands therein. Gregory would not otherwise have been eligible to serve as a commissioner. There appears to be no public policy which prevents a commissioner from purchasing other lands in the district from other owners, in addition to those which he owned when he became a commissioner. Gregory had the right, therefore, to purchase and acquire title to the Adams’ land, and, having done so, he had the same right which all other .owners of land in the district had, to remove the lien of the drainage district against the lands in the manner available to all other landowners. He appears to have used the bonds of the district for this purpose, which had an agreed value of 33 1/3 per cent, of their face under the bankruptcy settlement. This action was permissible, not only under the settlement in the bankruptcy proceeding, hut was authorized also by act No. 79 of the Acts of 1935, p. 169, which act was held constitutional and valid in the case of Watson v. Barnett, 191 Ark. 990, 88 S. W. 2d 811. See, also, State National Bank v. Morthland, 196 Ark. 346, 188 S. W. 2d 266.
It is argued that Gregory should not he accorded the relief granted by the court below, for the reason that he did not come into the chancery court with clean hands, in that he betrayed his agency and the trust incident to it, and also for the reason that he took an unconscionable advantage of the drainage district, which he was enabled to do by virtue of his office as a commissioner of the drainage district.
But, as has been said, the court below found the fact to be that Gregory did not become an agent; and in that finding we concur. There was, therefore, no trust created' as an incident to an agency.
As to the good faith of Gregory’s dealings with the drainage district, it may be said that Gregory was preceded in office by one Barnett as a commissioner, who appears to have had general charge of sales and redemption of lands belonging to the district, and Gregory, before becoming a commissioner, had paid Barnett,, for the account of the district, $500 for an option to purchase these lands. The district proposed to sell only such title as it had acquired through sales to it under decrees foreclosing the lien for the taxes due it, so that the deed from the district was, in effect, a redemption certificate. The district, without being charged with favoritism, might have accorded Gregory the preferential right to redeem these lands as being the owner of the original title thereto, but, in any event, he had the right to redeem lands of which he was the owner, and he would have had this right even though he had acquired the original title to the lands after being a commissioner. This right was accorded by the decree from which is this appeal, and, as it is correct, it is affirmed. | [
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Smith, J.
This canse was submitted in the court below upon an agreed statement of facts, consisting of twelve paragraphs, with certain exhibits made by reference a part thereof.
Sewer Improvement District No. 1 of the City of Helena was organized under an ordinance passed February 8, 1900. Proceeds of bonds which had been sold paid for its construction, and these were all redeemed and paid by the collection of betterment assessments.
On April 12,1915, an ordinance was passed creating another district, knoivn as Annexation No. 1 to Sewer Improvement District No. 1 of the city of Helena. The Annexation District assessed betterments; whether it issued bonds does not appear, but, if so, they have been paid and canceled. ■
There appears to be no question as to the validity of the ordinances creating the original and the annexation districts. From time to time, during the period from January, 1900, to January, 1930, the sewer mains of the original and annexation districts were extended in such manner as to afford sewer service to residents of the city of Helena who did not reside in either Sewer Improvement District No. 1 or the annexation to that district, and assessments were extended against their property for the privilege of receiving the benefit of sewer connection. These portions of the city of Helena have never been, by ordinance or otherwise, annexed to or embraced in either the original or annexed district, bnt, under ordinances Nos. 2065 and 2073, the commissioners of Sewer Improvement District No. 1 have extended betterment assessments against the property in these outlying areas, and are now attempting to collect them.
Ordinances Nos. 2065 and 2073 appear of record in the official ordinance booh on file in the office of the city clerk of Helena, and are the only ordinances which relate to the continuance or the prolongation of Sewer Improvement District No. 1 or Annexation No. 1 to Sewer Improvement District No. 1 of the city of Helena. On March 20, 1931, there was published in a newspaper in the city of Helena what purports to be ordinance No. 2073, and made an exhibit to the agreed statement of facts. That ordinance No.. 2073 is entered of record in the ordinance book of the city of Helena, but has not been published.
It is stipulated that in the suit brought for the purpose of enforcing collection of assessments against the lands situated in Sewer Improvement District No. 1 and Annexation No. 1 to Sewer Improvement District No. .1, certain of the owners of propertj" within the district, acting for themselves and for any others who might desire to join, have made answer, and denied the validity of the district, and the right of the commissioners to enforce the assessments against their lands; and as to these defendants the foreclosure proceedings have continued and the rights of the parties have not been adjudicated. As to the defendants who did not answer, a decree was rendered ordering the foreclosure of the delinquent betterment assessments; but it does not appear that the sale of the delinquent lands there ordered has been had.
There is attached a list of names of property owners who, since the adoption of ordinances Nos. 2065 and 2073, paid one or more of the assessments levied against their properly, under the provisions of these ordinances, who, with other property owners who have never paid any assessments, are plaintiffs in the instant suit which was brought to cancel assessments against their property upon the theory that authority does not exist for the collection thereof. The question was raised whether ordinances Nos. 2065 and 2073 confer authority to impose and collect assessments. It was held that this authority existed; and from that decree is this appeal.
Appellants state the question presented for decision as follows:
‘ ‘ 1. Did the city of Helena have the authority under §§ 7384-7388 of Pope’s Digest to continue or prolong the district as originally formed and levy assessments for the purpose of paying the cost of maintenance of the system of sewers in the city of Helena, after the cost of the construction had been fully paid?
“2. If it had such power, did the City Council proceed in accordance with the statute in its attempt to prolong, or continue the original district for the purpose of maintaining and repairing the system of sewers already constructed, and the cost for which had already been paid ? ’ ’
It is insisted that the Constitution does not authorize the prolongation of the life of a sewer district for the purpose of maintenance; and that, if so, there is no authority to charge a betterment assessment against vacant property where no sewer connection had ever been made. Such betterments were assessed.
Appellants state their position to be that the maintenance of a sewer system is not a public improvement such as is contemplated by the constitution, and that the council of the city of Helena had no authority or right to levy assessments against the property situated within the district for the purpose of maintaining the system of sewers after the assessments for the original cost had been fully paid and discharged, and in no event is there authority to levy assessments against vacant property.
In support of the proposition last stated the case-of Southern Railroad Co. v. City of Richmond, 8 S. E. 2d 271, 127 A. L. R. 1368, from the Supreme Court of Virginia, is cited.
We do not think, however, that this case has application here. It was there held that the constitution of Virginia expressly inhibits charges of sewerage benefits against property except for construction or use o'f the sewer, and the opinion was upon that ground. The Virginia court held that the vacant property there involved was not a user of the improvement, and could not be so charged. Our constitution contains no such restriction; and we think vacant property may be assessed.
The theory upon which our improvement districts are sustained is that the proposed improvement will enhance the value. of the land sought to be taxed, and the tax is imposed upon this enhanced value, which we call betterment.
It may be of value to the owner of vacant property to have the opportunity and the right to make sewerage connections, although the right may never be exercised so long as the property remains vacant and unimproved. But if the property is improved and buildings thereon are erected, it would add value to the property to have the facilities for- sewerage connections and the right to use them.
We conclude, therefore, that there is authority to assess betterments for sewerage purposes against vacant property where, if and when desired, the sewerage connections may be made.
Sewers may require maintenance in the way of repairs or otherwise, and while ordinarily this duty is imposed upon the municipality in which the improvement district is created to maintain the sewers after the construction cost has been paid, we see no constitutional objection to the property owners assuming that burden if that desire is indicated in the manner provided by law. Act 245 of the Acts of 1909, appearing as §,§ 7384-7388, Pope’s Digest, confers that authority, and the petition of a majority in value only is required to impose that burden upon the property in the district. The theory of the law is that, if the construction of sewers confers benefit by way of enhanced value, the maintenance thereof will effect the same result. This act 245 provides that the cost of this, maintenance— ■which, is called prolongation of the district — shall be assessed by the assessors making the original assessment of benefits. We perceive no difference, in a constitutional sense, between the maintenance or prolongation of a sewer district and the maintenance of a road or a road district, and the authority to maintain a road and ditch conferred by statute has been held to be the exercise of a power conferred by the constitution and statutes on the property owners. Dickinson v. Reeder, 143 Ark. 228, 220 S. W. 32; Prewitt v. Ladd, 140 Ark. 381, 215 S. W. 633; Conlee v. Miller, 144 Ark. 56, 221 S. W. 465.
In the Dickinson case, supra, Judge McCulloch quoted from the opinion of Justice Hart in the Prewitt case, supra, these statements: “ ‘In accordance with the principles laid down in these cases, a public road may be maintained and the expense thereof paid for by local assessments, and so an assessment may be levied for the repair and maintenance of public roads. ... In the case at bar another improvement district was organized for the purpose of maintaining a public road which had already been constructed under a separate improvement district. The lawmakers, recognizing that it would not cost as much to maintain the road as it did to construct it in the first instance, and that the benefits to be derived from the maintenance of the road would be in proportion to the benefits which accrued to the lands in building the road, enacted the section under consideration. The plain meaning of the section, when read from its four corners, is that each tract will be benefited by the maintenance proportionately to the benefits derived from the construction of the road in the first instance. This was a valid exercise of legislative power.’ ”
We conclude, therefore, that act 245 of the Acts of 1909, appearing as §§ 7384, et seq., Pope’s Digest, does confer authority to prolong sewer districts and to assess the maintenance cost thereof against the property in the district.
Act 64 of the Acts of 1929 (Vol. 1, p. 241), entitled, “An Act to Simplify the System of Organizing and Administering Local Improvement Districts in Cities and Towns,” and acts amendatory thereof, appearing as §§ 7368, et seq., Pope’s Digest, provides a system for the enlargement, repair and extension of water, light and sewer districts; hut before the powers conferred by §§ 7368, et seq., Pope’s Digest, may be exercised, there must be a. petition “signed by parties claiming to be two-thirds in assessed value of the real property in the original territory and in the territory to be annexed, each taken separately, ...”
There is no contention that the district operated under the authority of this act. The ordinances here in question presently to be discussed recited that they were enacted upon the petition of a majority of the property owners.
Has there been a valid exercise of the powers conferred by §§ 7384, et seq., Pope’s Digest, under which the assessments here in question were levied?
We think there is no constitutional objection, or lack of statutory authority, to treat the original district and the annexed district as a single district for purposes of maintenance after the indebtedness of both districts has been discharged, if the two districts are so connected that they may, in fact, be regarded as a single district.
But it is said in the brief of appellees that “Appel-lee-district contends that two ordinances were enacted, assessing the value of benefits against property located in the original sewer district, and also in annexation No. 1.” It is further said: “It is the contention of appellee-district that each of these documents (ordinances) constitutes evidence of the enactment of a separate ordinance, one of them to assess the benefits to property in Sewer Improvement District' No. 1, and the other to assess the benefits to property in annexation No. 1, to said district.” We examine these ordinances to ascertain just what authority has been conferred.
Ordinance 2065 is entitled, “An ordinance prolonging Sewer Improvement District No. 1 for the purpose of maintenance and repairs,” and in the body thereof it is enacted that Sewer Improvement District No. 1 of the city of Helena, heretofore organized, is hereby pro longed and continued for a period of 20 years from December 18th, 1930. It appears, from its preamble, that this ordinance was enacted upon the petition of a majority in value of the owners of .real property located within Sewer Improvement District No. 1. There is nothing in the ordinance or its preamble to indicate that any property owners in the annexed district had signed or that there was any intention to prolong the annexation district for any period of time. Ordinance 2065 was approved January 8, 1931.
To make the provisions of § 7384, Pope’s Digest, available, the passage of two ordinances is required, the first upon the petition of a majority in value of the property owners to prolong the life of the district. The second ordinance requires that the board of assessors of the original district “shall thereupon assess the value of all benefits to be received by such land owned by reason of the maintenance and keeping in repair of said improvement. . •. .”
Now, there are two ordinances No. 2073, one of which was entered upon the record of ordinances, but was not published, and the other was published, but was not entered upon the ordinance record. The first of these — and the one not published- — is entitled, “An ordinance assessing the value of benefits to be- received by the owners of each of the several blocks, lots, and parcels of land within annexation No. 1, to Sewer Improvement District No. 1 of the city of Helena, Arkansas.” This ordinance was approved March 10, 1931.
By its express terms and recitals, it relates only to the annexation district. But there was no ordinance prolonging the life of that district. The ordinance does recite that a majority in value of the property owners have petitioned the passage of an ordinance for the construction of the annexation district, but it does not recite that such an ordinance was passed, nor does it enact that the life of the annexation district shall be prolonged. There is no ordinance prolonging the life of the annexation district, and there is, therefore, no authority to assess and impose upon the lands in that district the cost of maintenance.
Now, as we have said, the original and the annexed district might, after the indebtedness of both districts had been discharged, have been treated as a single district, and the life of the consolidated district prolonged and the cost of maintenance assessed upon all property in both districts; bnt it is certain that this was not done. The ordinances treat the districts as being'in existence as separate entities.
The second ordinance, No. 2073, which was published, but not' entered in the ordinance record, was passed March 10, 1931. 'By its express terms and recitals, it relates solely to Sewer Improvement District No. 1, that is, the original district. But the 'trouble with this ordinance is that it attempts to exercise a power which the statute does not confer. This ordinance, exclusive of its preamble, is as follows: “Section 1. That the said several blocks, lots and parcels of real property, railroads and railroad rights-of-way in said Sewer Improvement District No. 1 be and they are hereby assessed according to the assessment list as the same now remains in the office of the city clerk of the city of Helena and as the same may be annually readjusted by the Board of Assessors, and that 7-10 of one percentum of said assessment of the value of benefits to each of said blocks, lots and parcels of land, railroads and railroads rights-of-way shall be paid annually on or before the 1st day of May beginning in 1931, until the whole of said assessment shall have been paid.”
The statute under which the proceedings here involved were had does not confer upon the City 'Council the authority to assess the betterments and cost as § 1 of the ordinance undertakes to do. The statute (§ 7384, Pope’s Digest) provides that “Thereupon the council shall provide by ordinance for the prolongation or continuation of said district as prayed for, and the board of assessors shall thereupon assess the value of all benefits to be received by such land owned by reason of the maintenance and keeping in repair of said improvement as affecting each of said blocks, lots or parcels of land within said district.” This was not done, nor required by the ordinance, although the ordinance did provide that all assessments “may be annually readjusted by the Board of Assessors . . In other words, the ordinance undertakes to make the assessment which the statute requires the Board of Assessors to make.
It appears, therefore, that there has been no assessment of benefits in either the original or the annexed district, and the payment of benefits not assessed may not be enforced. There was a decree enforcing the assessment of benefits against all the property in both the original and the annexed districts, and also against the territory not in either district which had been afforded sewer service. But, as appears from what has already been said, the enforcement of this decree by the sale of the delinquent property was postponed as to the owners who had resisted the collection of the taxes. The instant case was brought as an independent suit, not only to restrain the enforcement of this decree of foreclosure, but to cancel all assessments made for maintenance purposes. As it appears from the face of the ordinances themselves that no valid tax has been levied, the protesting property owners are entitled to the relief prayed. There is no theory under which betterments may be assessed against lands which were never included, by any ordinance, in either the original or the annexation district.
The decree will, therefore, be reversed and the cause will be remanded with directions to dismiss the suit to enforce the payment of the taxes as being unauthorized. | [
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Humphebys, J.
This suit was brought on the 12th day of September, 1939, in the circuit court of Lee county by appellee against appellant to recover $800 on an alleged renewal contract of a fire insurance policy which was issued to him on March 16, 1938, and which expired on March 16, 1939.
It was alleged in the complaint that several days before the expiration of the original policy its general agent renewed it for the same amount and under the same terms as the original policy for another year and notified appellee to that effect; that upon April 9, 1939, while said policy, as renewed, was in full force and effect and before the premium thereon was due appellee’s house and household goods were destroyed by fire; that immediately after the fire appellee notified appellant’s agent of the loss and the agent informed him that the policy, as renewed, liad been canceled, and denied liability of appellant thereon. The prayer of, the complaint was for a judgment of $800, interest from April 9, 1939, 12 per cent, penalty and attorneys’ fee.,.
The answer admitted that appellant was a corporation, but denied all other allegations in the complaint.
By additional pleadingj appellee alleged that appellant notified appellee prior to the fire that the insurance policy had been renewed; that appellee’relied on such statement, and by"the conduct of its agent, appellant is estopped to deny that said policy was renewed at the time of the loss.
The' cause was submitted to a jury, upon the pleadings and the evidence introduced by the parties resulting in a verdict and consequent judgment for $800 principal, $4$ interest from April 9, 1939, to the,date of the judgment, and the statutory penalty of 12 per cent., amounting to $96, and an attorneys’ fee of $125, making a total amount of $1,069, together with costs, from which appellant has duly prosecuted an appeal to this court.
At the conclusion of appellant’s evidence and also at the conclusion of all the evidence appellant requested the court to instruct a verdict for it on the ground that the undisputed evidence in the case reflected that appellant was not liable on the alleged renewal contract. The court refused to peremptorily instruct a verdict for appellant, to which refusal appellant objected and excepted.
The undisputed evidence in the case was, in substance, as follows: Appellant was represented in Mari-anna in Lee county by Hugh C. Mixon Agency, a business owned and operated by Hugh C. Mixon; that the agent had authority to issue, countersign and deliver policies of fire insurance and to collect the premiums therefor; that prior to the year 1933 the agent had written occasional policies of fire insurance for appellee; that such policies always had been issued upon the express application of appellee and the premiums had been paid in cash at the time of the application; that from 1933 until March 16, 1938, there was no business relation ship or course of dealing of any character between appellant or its agent and appellee; that in March, 1938, appel-lee applied for a policy of fire insurance to the Hugh Mixon Agency on his house, furniture, and his barn or storehouse and its contents; that Hugh C. Mixon inspected the property and agreed to write a policy for appellee insuring his house for $600, the household goods for $200, the commissary and contents for $400; that appellee gave his check for $24 in full payment of the premium at the 'time the application was made, and that the agent prepared and delivered the policy issued by appellant company, covering a period beginning March 16,1938, and ending March 16,1939; that no loss occurred during the period covered by the contract; that a short time prior to the date of the expiration of the policy, in March, 1939, the agent, pursuant to a general custom without an application being made and without any communication with appellee, re-issued the policy by preparing a duplicate of the expiring policy which covered the same property in the same amounts, beginning March „16, 1939, and ending March 16, 1940, and placed it in the file in the agent’s office; that the agent then placed a printed form of notice in the mail addressed to appellee, the notice stating: “This is to advise you that we have issued new policies for those you have expiring with us on the dates shown below”; that the notice was mailed to and received by appellee prior to the expiration of the original policy, but appellee made no effort to communicate with the agent, pay the premium nor to advise the agent whether he desired the re-issued policy; that the policy remained on file in the office of Hugh Mixon Agency until April 1, 1939, about fifteen days after the original policy had expired, at which time the agent withdrew it from the file and drove out to appellee’s home about seventeen miles from Marianna and offered to deliver-the policy to appellee’s wife upon payment of the premium, appellee himself not being at home; that he left word with her to tell appellee to let him know within a day or two whether he wanted the original policy renewed. Appellee did not let him know whether he wanted it, did not pay the premium or offer to pay same, so on April 8, 1939, Hugh Mixon indorsed the re-issued policy with the words “Not taken” and on the same day mailed a copy to the rating 'bureau and the original renewal of the policy to appellant; that on the night of the next succeeding day, April 9,1939, appellee’s house and household goods were destroyed by fire; that at the time of the fire appellee was asked whether he had any insurance and said that he told the inquiring parties that he did not know; that the exact language was, '“I just thought it wasn’t anything to them (the inquiring parties), and I told them I didn’t know.” The following Thursday after the fire appellee drove into Marianna and met Hugh Mixon, the agent, in front of a drug store and was told that renewal policy had been canceled and mailed to appellant.
Appellee admitted that he had made no application for the re-issued policy; that he never asked for or received any credit from the agency; that he had not paid the premium; that prior to the fire he had not notified Hugh Mixon whether he desired his property insured for another year; that he had always applied for and paid cash for previous insurance policies and had not established any course of dealings with the Hugh Mixon Agency and that the policy expiring March 16, 1939, had been the only policy written for him by the agent for many years, the last policy written being in 1933; that appellee thought his property was insured by the reissued policy for the reason that he knew he had thirty days of grace to pay an insurance premium (according to the old insurance law).
The record also shows that the original policy as well as the renewal policy which had been made out and filed contained the following provisions: “This policy shall be canceled at any time at the request of the insured ; or by the company by giving five days ’ notice of such cancellation.”
It also' reflects that when attorneys for appellee were making an investigation before they brought suit Hugh C. Mixon wrote them a letter which contained the following language: “For your information, the renewal policy was canceled prior to the fire at assured’s request and subsequently verified before witnésses by assured.” The record also shows the following excerpts from Hugh Mixon’s testimony:
“Agents have steady customers who do business with them annually over a long period of time; where agent is close to them, they depend on agent to look after it for them; policies are written up usually ten days or a week before expiration date; he signs policies and stenographer puts them in file;. then try to receive some word from insured whether policy is to be renewed. Where policy renewed without any request or authority, that person might come in and pay for policy and so the policy stays in the office until some decision is made. The policy can’t run on where he doesn’t come in or get in touch with agent; where he comes in and pays premium, all that is done is to mark the premium paid and deliver the policy.”
Appellee testified that he intended to pay the premium and take the policy which had been prepared and filed within the thirty-day grace period.
There was nothing in the policy either the original or the one prepared and held in the office giving any grace period of thirty days within which to pay the premium. This intention on his part was never disclosed to anyone. There was no custom established between appellant and appellee' whereby any credit was extended to him or any period of time within which to pay the premium. There was a general custom which appellant extended to customers who had done business with it for a lo'ng period of time to the effect that he would look after renewal policies for them and to whom credit was 'extended for the payment of the premium on the renewal policies, but according to the undisputed evidence appel-lee did not come within that class. He had not doné' any business with appellant through its authorized agent, since 1933 until he took the original policy in 1938. What business he had done prior to 1933 had been upon a cash basis. He would apply for the policy and pay the premium when the policy would be issued and delivered to him. There is nothing in the record to show that he ever renewed a policy or requested that an existing policy he renewed.
According to the undisputed testimony in this record the policy which he purchased expired on March 16,1939, and he was notified of that fact, hut failed to contact the agent about paying the premium or getting time within which to pay or signifying that he would accept the renewal policy. Appellant could not have recovered the premium from him and force the policy upon him. Not being bound himself to pay the premium, no liability rested upon the company under a renewal policy which he never indicated he wanted. A mere reservation in his own mind that he intended to pay the premium and take the policy within thirty days is not sufficient to recover on a contract which had never been accepted by him.
Contracts must be mutual and a proposed contract which has not been accepted is in no sense a completed contract. It was said in the case of W. P. Harper & Company v. Ginners’ Mutual Ins. Co., 6 Ga. App. 139, 64 S. E. 567, that: “The acceptance of a proposal of insurance must be evidenced by some act that binds the party accepting. A mental resolution that can be changed is not sufficient. Any appropriate act which accepts the terms as they were intended to be accepted, so as to bind the insurer, is sufficient to show the concurrence of the parties, the meeting of minds.” Cooley’s Briefs on the Law of Insurance, 421. “Where the proposal to insure comes from the insurer, he must be notified of the acceptance of the offer by the insured. ’ ’ Id. 423, 424, 432.
• In the instant case appellee did nothing after he received the notice to indicate that he wanted the renewal policy which had been prepared and filed in the' office of the agent and never at any time offered to pay the premium until he tendered it in court during the trial of the cause. The most that he did according to his own testimony is that he had made a mental resolution to take and pay for the policy within the thirty-day grace period. A mental resolution is not sufficient to show the acceptance of a policy because he had it within his power to change the mental resolution talked about. There must have been some act on Ms part showing that he intended to accept the policy which had been prepared so that he himself wonld be bound else there was no concurrence of the parties, no meeting of minds. In other words, a mere proposal to renew a policy unless accepted is not binding upon either party. It was said in the case of New v. Germenia Fire Ins. Co., 171 Ind. 33, 85 N. E. 703, 131 Am. St. Rep. 245, that: “Delivery of a premium renewal receipt without payment merely constitutes an offer to renew and if refused when tendered by the agent, no renewal of liability takes place.”
It was said by Cooley in the Briefs on Insurance, §§ 421, 422, that: “The acceptance of a proposal of insurance must be evidenced by some act that binds the party accepting. A mental resolution that can be changed is not enough. Any appropriate act which accepts the terms as they were intended to be accepted so as to bind the insurer is sufficient to show the concurrence of the parties, the meeting of minds. ’ ’
There is nothing in the record in this case showing that appellee ever accepted the offer of appellant to renew the insurance for a year and without the acceptance of the proposal the contract was not complete and binding upon either appellant or appellee. The act of preparing a renewal policy and filing same in the agent’s office and notifying the appellee to that effect amounted to nothing more than an offer or a proposal that it was willing to insure his property, and before there could be any mutuality between appellant and appellee it was incumbent upon appellee to signify by some act that he would accept the offer or proposal. Until there was an acceptance there was no mutuality between the parties, and mutuality between the parties is a necessary essential to a valid binding’ contract. The mere preparing and filing a renewal fire insurance contract by an agent in his office authorized to represent an insurance company does not estop the insurance company from pleading that the insured had not accepted the contract. As stated above, a mere reservation in the insured’s mind that he intended to take the policy and pay for it does not amount to an acceptance.
The trial court should have instructed a verdict for appellant at its request from the record made. On account of his failure to do so, and it appearing that the case has been fully developed, the judgment of the trial court is reversed, and the case is dismissed. | [
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McHaNey, J.
Appellant and appellee were opposing candidates for the office of county and probate judge of Chicot county in the recent democratic primary election, held August 27, 1940. T-he county central committee met and canvassed the returns of the election on August 30, which showed that 2,644 votes were polled for the two candidates, of which appellee received 1,323 and appellant 1,321 votes, or a majority of 2 votes for appel-lee. A certificate, of nomination was accordingly issued to appellee.
Thereafter, on September 9, 1940, at 6:45 p. m., appellant filed with the clerk of the circuit court his complaint to contest the certificate of nomination issned to appellee on several grounds, which are unnecessary to enumerate here, and caused a summons to he issued for appellee* which was left with the clerk, together with a sufficient sum to cover the fee of the sheriff for service, and directed the clerk to deliver same to the sheriff on the following day, the sheriff’s office being just across the hall of the courthouse from that of the clerk and being closed at that time. The clerk delivered said summons and fee to the sheriff on the next morning, September 10, at about 9 a. m. and service was promptly had. Said complaint, so filed, was verified by appellant and there was attached thereto the supporting affidavits purporting, to have been made by fourteen qualified electors and citizens of Chicot county, before a duly qualified and acting notary public.
Thereafter, on September 16, 1940, appellee filed his motion to dismiss the action because the court was without jurisdiction to try same for two reasons: First, that the action was not commenced within 10 days as required by § 4738 of Pope’s Digest; and, second, that the complaint was not supported by the affivadits of ten reputable citizens in that certain of the purported affiants signed same without the sanctity of an oath, without reading or having same read to them and without swearing that the allegations thereof were true.
The court sustained the motion to dismiss on both grounds, dismissed the complaint and this appeal is from that order. We think the learned trial court erred in so holding.
1. The statute above cited provides that the complaint shall be filed within ten days of the certification complained of. It was filed and a summons issued on September 9, which was the tenth and last day in which it could be filed. This is a short statute of limitations. In Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491, it was held that: “The rule for computing time in statutes of limitations in this state is to exclude the first and include the last day.” Headnote 1. Therefore, excluding August 30, the day the committee acted, and including September 9, the complaint was filed within ten days from August 30. In Wilson v. Land, 166 Ark. 182, 265 S. W. 661, the county central committee canvassed the returns and issued its certificate to Mrs. Land on August 15, the contest complaint was not filed until August 26, and it was held too late. It is true, in that case, that the court held that the contestant’s cause of action accrued on the day the committee acted, but it did not hold that that day must be included in determining when the ten-day period ended, for, as a matter of fact, it ended on the 25th with that day excluded. But, it is further contended by appellee that, conceding the complaint was filed in time, still no action was commenced on that day by the mere filing of the complaint and causing a summons to be issued; that the delivery of the summons to the proper officer to be served is an essential step in the commencement of an action; and that its delivery to the sheriff the following day was not sufficient. This argument is based on language used by this court in Simms v. Miller, 151 Ark. 377, 236 S. W. 828; Swartz v. Drinker, 192 Ark. 198, 90 W. 2d 483, and Peace v. Tippett, 195 Ark. 799, 114 S. W. 2d 461. All these cases construed § 1251, Pope’s Digest, or what is now said section, which provides: ‘ ‘ A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon.”
In the Simms case, 151 Ark. 377, 236 S. W. 828, this language was used: “The delivery of the writ to an officer is an essential part of the issuance of the writ, and until this is done an action is not properly commenced.” Standing alone and not considered in connection with the facts in that case, the language supports appellee’s contention. But not so when it is considered in the light of the facts, that Simms was sued before the bar of the statute, and a summons was issued and delivered to the sheriff, but was never served; that an alias summons was issued and served after the bar, and it was held the action was barred. In the Swartz v. Drinker case, supra, the language used can have no bearing here as the sole contention made there by appellants was that the chancery court was without jurisdiction because a suit was pending in the circuit court. In Peace v. Tippett, the court quoted the language of Judge McCulloch in the .Simms case, above mentioned, and said: “In the instant case, although summons was issued in form, it was delivered to an attorney for appellees, who retained it for almost fifteen months. This conduct negatived an intention that the summons should be served in a timely manner. Suit was not commenced when the summons was written, signed and delivered to the attorney.”
Here, however, there is nothing to negative an intention on the part of counsel for appellant that the summons should be served in a timely manner, and it was so served. All the facts and circumstances show that the writ would have been delivered to the sheriff at once, had his office not been closed, and we think a delivery the next day was all the law requires. In fact the statute says an action is commenced when a complaint is filed and a summons is issued, and that was done within ten days. So the action was not barred.
2. Was the supporting affidavit sufficient? The trial court held, under the authority of Thompson v. Self, 197 Ark. 70, 122 S. W. 2d 182; Kirk v. Hartlieb, 193 Ark. 37, 97 S. W. 2d 434, and Murphy v. Trimble, Judge, 200 Ark. 1173, 143 S. W. 2d 534, that there were not ten supporting affiants, because not that many were properly sworn to the affidavit. Fourteen persons, including Walter Matthews, Jr., about whose signature no question is raised, signed the affidavit, reading: “We, the undersigned, upon our oaths, state: That we are qualified electors and citizens of Chicot county, Arkansas; that we belong to the democratic party; that we have read the foregoing complaint and that said complaint is true and correct, according to our best knowledge, information and belief.” Then follows the fourteen signatures and concludes: “Subscribed and sworn to before me on this 9th day of August (evidently September), 1940,” and signed by the notary public. We think the cases above cited and relied on by the trial court as supporting his decision do not do so, under the facts here. It is undisputed that each affiant signed the affidavit in the pres ence of appellant and the notary public and that each read the complaint or was told the substance and object of it and that each understood he was signing an affidavit for the purpose of permitting appellant to make the contest. The notary was asked: “State what statements were made by you, if any, and by Mr. Matthews to these people at the time they signed.” And he answered: “Well, Mr. Matthews explained to them he was filing a contest ■ and that he needed ten supporting affidavits and in most instances I explained to them, too, that I was, that that, was what Mr. Matthews was doing and that I was acting as a notary public to take the affidavit. ’ ’ When asked if each of the affiants knew he was making an affidavit, he answered, ‘ ‘ yes, I would say they did. ’ ’ And we think their testimony shows that they knew they were making an affidavit, all with the possible exception of affiant Kay. In Cox v. State, 164 Ark. 125, 261 S. W. 303, Cox appeared before the clerk to secure a marriage license and in doing so made affidavit that a girl under fifteen years 'of age was eighteen. He was indicted for perjury and convicted. His defense was that he did not make an affidavit — that he signed it, but was not sworn. This court held, to quote a headnote: “Where the defendant signed an affidavit for the purpose of swearing to it, knowing that the clerk regarded his act of signing as a method of making affirmation, a finding that he was sworn is warranted.” So here, every affiant, with the possible exception of Kay, knew that he was signing an affidavit for the purpose of swearing to it, and that the notary regarded his act of signing as a method of making affirmation, and we hold the affivadit sufficient.
The judgment will, therefore, be reversed, and the cause remanded with directions to overrule the motion to dismiss, and for further proceedings. | [
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McHaney, J.
Appellee Tuggle brought this action to recover damages for personal injuries sustained by Mm against appellants Arkansas-Louisiana Gas Company, hereinafter called the Gas Company, and A. L. Hursey, and Thompson, Trustee for the Missouri Pacific Railroad Company. He alleged that he was a truck hauler for hire and that, while he was engaged in unloading a car of tile on the track of the Railroad Company at Seventh street and Railroad in the city of Little Rock on September 5, 1938, he being on the inside of said car, another car higher up the track was released and rolled down by gravity and bumped into the car in which he was working with such force as to injure him; that appellant Hursey was unloading the car of pipe which was released carelessly and negligently by him; that the Railroad Company was negligent in “not providing frogs or other apparatus for stopping, cars on its tracks and in. having the track or switch so slanted or. inclined as to permit a car, when released, to run down into another car”; that the Gas Company was negligent in not protecting the cars so they would not collide; and that Hur-sey was negligent for failure to exercise ordinary care and in intentionally, wrongfully and negligently releasing said car.
Appellants answered with a general denial. The Railroad Company, in addition to a general denial, alleged that, if appellee were injured, it was the fault of Hursey. Trial resulted in a verdict and judgment against appellants in the sum of $5,000, and a verdict and judgment for the Railroad Company. The Gas Company and Hursey have appealed from the judgment against them, and appellee Tuggle has appealed from the judgment in favor of the Railroad Company and Thompson, Trustee.
Several assignments of error are argued by appellant, Gas Company, for a reversal of the judgment as to it. In view of the disposition we make of the first assignment, that there should have been an instructed verdict in its favor, it becomes unnecessary to consider the others. We agree with counsel for it that Hursey was an independent contractor in unloading the pipe; that the relation of master and servant did not exist between them; and that the doctrine of respondeat superior has no application to the facts here presented. The facts are that Hursey was employed by the Gas Company under a contract, consisting of a proposal in writing from him to unload the two cars of pipe for $21 per car, as follows: “I agree to unload your 8" cast iron pipe at Sixth street and Railroad, on the Missouri Pacific tracks, and place same on the ground, clear of all tracks and roads, and to assume all responsibility for handling and unloading. This is to be done for twenty-' one dollars ($21) per car.” Mr. Rhea accepted this proposal and awarded the contract to Hursey, having received. bids from others for the same purpose. Hursey hired his own help, used his own equipment and the Gas Company had nothing to do with the unloading. Ap-pellee and some of his witnesses say that, shortly after the accident, Hursey came to the car in which appellee was working and which was knocked over the dump at the end of the team track, and stated that he was a poor man, working for the Gas Company. Assuming that this testimony was competent, it does not conflict with the fact that he was an independent contractor; because as such he was working for the gas company. Another witness testified to seeing a truck there that morning with the Gas Company’s name on it. Even so, this could not have the effect of changing the status of Hursey or of making a question for the jury as to his status.
Hursey’s business was that of truck hauling for others, as was also the business of appellee. His duty here was to unload the cars of pipe according to his contract. He was to produce this result by means and methods of his own choice and the Gas Company was not concerned as to how this result should be accomplished, nor with the control of the men actually doing the work. Under all our decisions, Hursey was an independent contractor, and the relation of master and servant did not exist. Moore and Chicago Mill & Lbr. Co. v. Phillips, 197 Ark. 131, 120 S. W. 2d 722; J. L. Williams & Sons, Inc., v. Hunter, 199 Ark. 391, 133 S. W. 2d 892. This being so, the court should have granted the Gas Company’s request for a directed verdict as to it.
As to Thompson, Trustee, Missouri Pacific Railroad Company, as to whom appellee has appealed, the court should have directed a verdict in Ms favor. The only negligence alleged was in “not providing frogs or other apparatus for stopping cars on its tracks” and in having a decline in its tracks so that a car would run down into another car when released. The undisputed evidence shows there was no negligence in not having frogs or other apparatus, and apparently counsel for appellee, Tuggle, have abandoned this allegation, as the argument here is that the Railroad Company should have spotted the cars of pipe at a different place and was negligent in not doing so; But, assuming that the cars should have been placed farther down the track, such negligence was not the proximate cause of the injury. There was an active intervening cause, that of Hursey in releasing the brakes, and the Railroad Company is not liable for the acts of Hursey who was not its employee. It is said the Railroad Company knew the cars had to be moved. If so, it was its duty to move them and spot them where they could be unloaded. But the mere fact of spotting the cars where they were, assuming that it was negligence to do so, did not cause the injury and could only be said at the most to be the remote cause. In Booth & Flynn v. Pearsall, 182 Ark. 854, 32 S. W. 2d 404, it was said that, “in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” In Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A., N. S., 905, it was said: “It is a well .settled rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote.” So here, if we assume that the Railroad Company was negligent in spotting the car, that fact did not cause the injury, except for the intervening act of releasing the brakes. The brakes were not shown to be defective. So, the court should have directed a verdict for it. The jury found for it and the” judgment as to it must be sustained.
As to appellant Hursey, we think a question of fact was made as to his liability. It was his act of releasing the brakes that caused the injury. While it is no doubt true that he had every reason to .believe he could stop the car, either with the brakes or with the blocks which he attempted to place between the wheel and the rail, as a scotch, he did not succeed. He could have called on the Gas Company or the Railroad Company to spot the car in a suitable place for unloading, without assuming the risk of liability to himself, but when he chose to move it, he took the risk himself. Appellee was unloading a car of tile on the same switch or team track, was inside the car about his own business and fell on the floor of the car when the impact occurred. Tile fell on his hands. He testified that he was painfully hurt and had been unable to do any work since. Only one physician testified and he could find no injury to appellee caused by the collision. There were no broken bones and no objective showing of injury. We think the verdict and judgment excessive by $2,500, and if appellee will, within fifteen judicial days enter a remittitur for $2,500, a judgment for this amount against appellant Hursey will be affirmed. Otherwise the cause as to him will be reversed and remanded for a new trial. | [
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Humphreys, J.
On the 12th day of February, 1927, R. E. Allison executed a promissory note to Clay Sloan for $1,352 payable in annual installments, the last installment of $500 being’ due and payable December 1, 1929, with interest on the entire amount at 10 per cent, per annum from date until paid.
This note was secured by a deed of trust or mortgage executed to Dolpb Sloan by R. E. Allison and Molly Allison, bis wife, upon lots 1, 2, and 3 in block 2, Campbell’s Addition to Alicia, Arkansas, in which she conveyed her dower and homestead interest and which deed was duly acknowledged and recorded.
This note and mortgage was assigned for a valuaable consideration by Clay Sloan before maturity to Gr. H. Osburn.
G. H. Osburn died on January 10, 1933, and his executor and sole legatee brought a foreclosure suit in the Eastern District of Lawrence county to collect the note and subject the land to the payment thereof.
Clay Sloan had some interest in the note and mortgage on account of advances made by him to G. H. Osburn, and he was made a party defendant in the foreclosure suit and waived service., Molly Allison was made a party defendant and personal service was obtained on her.
B. E. Allison was made a party defendant and service was obtained on Mm in tbe foreclosure proceeding by warning order.
Tbe foreclosure proceeding was begun on tbe 23rd day of March, 1933. On tbe 19tb day of September, 1933, a judgment was rendered in tbe foreclosure proceeding and a lien declared upon tbe land tberefor and same was ordered sold at public sale according to law including tbe dower and homestead rights of Molly Allison.
Tbe land was sold in accordance with tbe decree at wMcb sale Claude B. Williams, executor and sole legatee of Gr. H. Osburn, purchased same. Tbe sale was confirmed and the commissioner was ordered to make and did make a commissioner’s deed to Claude B. Williams.
At tbe time of tbe sale of the land, Molly Allison, appellant and his brothers and sisters were residing thereon, and thereafter Molly Allison was ousted from the premises under a writ of assistance and appellant and bis brothers and sisters removed from tbe place with their mother in 1935.
On March 30,1935, Claude B. Williams, executor aiid sole legatee of Gr. H. Osburn, deceased, executed a deed to the appellees herein, Bolph Bush and Mrs. Bolph Bush, for a valuable consideration, and they entered into possession of the property and made valuable improvements thereon.
The decree in foreclosure recited on the face thereof proof of publication of the warning order upon B. E. Allison and the appointment of Boy Mullens, a regular practicing attorney at the bar of the court, to represent him and the report of said attorney and also recites waiver of service by Clay Sloan and personal service upon Molly Allison. It also recites that an affidavit was made for the warning order against B. E. Allison by the attorney of Claude B. Williams, executor and sole legatee of Gr. H. Osburn, deceased.
On September 16, 1939, appellant, Warren Allison, brought this suit in ejectment in the circuit court of Lawrence county, Eastern District, against appellees, Rolph Bush and Mrs. Rolph Bush, alleging ownership of an undivided one-fourth interest in the said lots and a homestead right therein by inheritance from R. E. Allison, his father, who died prior to the foreclosure proceeding and was dead at the time the suit was brought against him as a nonresident defendant, and that said appellant and his brothers and sisters were not made parties to the foreclosure proceeding, and' that on that account the foreclosure proceeding was void and that neither appel-lees nor their grantor acquired title to the lots'under the foreclosure proceeding. He also alleged that the affidavit for the warning order was made by the attorney of Claude R. Williams, the executor, instead of Claude R-Williams himself, and that the warning* order was not published for the time required by law.
The undisputed proof in the case shows that R. E. Allison went to Old Mexico in 1929, and that the last heard from him was on January 4, 1930. There is no» actual proof as to when or where he died if he died at all.
Appellant contends that his father was dead at the time the foreclosure suit was instituted and relies upon the presumption that he was dead because the last letter or postal received from him was January 4, 1930. As stated above, the foreclosure suit was commenced on March 23, 1933. Our statute, § 5120 of Pope’s Digest, fixes five years as the time a person must be proved absent before deáth can be presumed. It follows that no presumption of death existed, for no presumption of death can be indulged upon the date the suit was commenced because less than five years had intervened between the date he was last heard from and the time the foreclosure suit was begun. As stated above there was no actual proof of his death prior to the institution of the foreclosure suit. The undisputed proof is that he was a nonresident at the time the suit was begun, and service upon him as a nonresident was proper in order to give the court jurisdiction for the purposes of enforcing a mortgage lien on the property.
Appellant contends, however, that the affidavit was not sufficient as a basis of the warning order, and that the warning order was not published for a sufficient length of time. If the affidavit was insufficient, it may have been amended before the judgment was rendered, and the proof of the publication of the warning order may have also been amended to show that it had been published a sufficient length of time. Anyhow the judgment on its face shows that R. E. Allison was served according to law at the time of the rendition of the foreclosure decree.
It must be remembered that this suit in ejectment by appellant is a collateral attack on the decree for irregularities, and a decree cannot be attacked collaterally if simply voidable. The decree cannot be attacked collaterally unless it is void on its face.
We think before appellant can collaterally attack the foreclosure decree by this ejectment proceeding he must have gone into the chancery court and succeeded in setting the decree aside on some ground justifying the cancellation thereof. In an ejectment suit one cannot obtain the cancellation of a decree which is merely voidable or valid upon its face. It will be remembered that there was no appeal from the decree of foreclosure. It became final and binding upon all the parties and their privies long before this suit in ejectment was commenced and long before this collateral attack upon the decree.. The validity of the mortgage debt was not questioned. The only contention is that the decree enforcing the mortgage debt against the lots was irregular and voidable. The foreclosure decree even if voidable for irregularities could not be canceled in a proceeding in ejectment, the only remedy being to bring suit in a court of chancery to cancel same on account of the alleged irregularities. Of course it would be different if the foreclosure decree were void on its face and not merely voidable on account of irregularities.
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Smith, J.
All the parties to this litigation are colored people except Mrs. Lida B. Archer, and their lack of business knowledge is very obvious. In all the transactions hereinafter referred to they acted without legal advice.
The relationship of the parties to each other is as follows: Louis Bolin is a retired postman, and Louise White and Boy White are his daughter and son-in-law. Edward Blackburn is the son and only heir-at-law of Steve and Sophia Blackburn, both deceased. Armstead Bay, who was an illiterate old man, unable to read or write, married Steve Blackburn’s mother, the grandmother of Edward. The grandmother died many years ago, leaving Armstead Bay her widower. After Bay married the widow of Blackburn, he purchased a lot in the city of Fort Smith which is the subject-matter of this litigation.
On October 23, 1928, Bay deeded the property to Steve Blackburn, the father of Edward and the son of Bay’s wife. This deed is one of general warranty as to title. Below the description of the property in parentheses is the following notation: “(A part of the consideration mentioned above is that the said Steve Blackburn undertakes and agrees to maintain, keep and support Armstead Bay during the remainder of his life.) ” Bay died August 4, 1937. Steve Blackburn died May 5, 1930, and Sophia, his widow, died July 10, 1933.
Bolin became the administrator of the estate of Arm-stead Bay August 7, 1937, three days after the date of Bay’s death. After qualifying as administrator of Bay’s estate, Bolin collected the sum of $682.85 upon certain life insurance policies upon Bay’s life which were payable to Bay’s estate. Bolin also collected certain rents on the house and lot.
Bay died testate, his will having been written by Bolin. This will reads as follows:
“Fort Smith, Arkansas.
“February 13, 1935.
“Last Will and Testament of Armstead Ray.
“I am of sound mind and healthy in body, and make this will that as Lewis Bolin or his heirs has been so kind to me during my last declining years, that I want to will to him or his heirs my property of which I am living on, and whatever insurance money I have left after my funeral expenses are paid. My household goods go to Myrtle Caldwell.
his
“Armstead x Ray mark
“Joseph Smith, Witness,
“Emma Burns, Witness.”
There was a contest over the probate of this will which was appealed to the circuit court where the will was sustained.
‘ ‘ There was also offered in evidence a paper writing, prepared by Bolin, reading as follows:
‘ ‘ Contract and Agreement
“This agreement, made concluded this 1st day of December, A. D., 1930, between A. Ray, of the first and L. Bolin of the second part, witnesseth, that the party of the second part agrees to pay the party of the first part such sum of money as to guarantee his upkeep during the winter in food, clothing, fuel and party of the first part can supply his own wants during the spring, summer and fall.
“If the party of the second part comply with above contract and agreement then the party of the first part do agree that all his possessions are to go to the party of the second part this contract and agreement to run until death separates one or the other or carried out by the party of the second part heirs or cancelled by mutual •consent of the parties concerned.
“Armstead Ray
“Witness: Joseph Smith.”
This instrument was signed 'by Ray, but not by Bolin.
On December 5, 1928, Steve and Sophia, Blackburn borrowed $500 from one Henry Kaufman, evidenced by ten notes to Kaufman’s order, due, respectively, at intervals of six months, in each of which notes interest to date of maturity was included. Ray did not sign these notes, but joined in the execution of the mortgage.
This suit was begun by Roy White, and Louise, his wife, to foreclose this mortgage. When the fact was developed that Bolin had acquired this mortgage from Kaufman, intending to give it to Louise, his daughter, and Roy, her husband, Bolin was made a party plaintiff to the foreclosure suit.
Bolin’s attitude in this case is not consistent; but his inconsistency does not divest his legal rights. Notwithstanding the fact that he had acquired the mortgage and had joined in the suit to foreclose it, he claimed title to the lot, both under the contract to support Ray and under Ray’s will set out above.
An answer was filed, in which Mrs. Archer joined, which contained allegations to the following effect. Edward, the son and heir-at-law of Steve and Sophia Blackburn, sold and conveyed the lot to Marie Isaacs on January 12, 1938, who later mortgaged it to Mrs. Archer, to secure a loan of $500. It was denied that Bolin had paid value for the Kaufman mortgage, and it was alleged that the debt which it secured was barred by the statute of limitations. By way of cross-complaint it was alleged that, if Bolin had paid anything for the Kaufman mortgage, he had been reimbursed by rents collected and the proceeds of the insurance policies.
The testimony was devoted largely to the matter of accounting, and the state of the accounts and the priority of the mortgages appear to be the real and controlling questions for decision.
The court found' that the Kaufman mortgage had been assigned by Kaufman to Bolin’ who had made payments thereon amounting to $489, and this mortgage was held to be superior and prior to the Archer mortgage. The court further found that Bolin had collected insurance on Bay’s life amounting to $682.85, which he claimed was disbursed as shown by his accounts as administrator filed in the probate court.
A decree was rendered ordering the foreclosure of the Kaufman mortgage, after ascertaining and declaring the balance which it secured as a prior lien; and Edward Blackburn and Mrs. Archer have appealed, and Boy and Louise White and Bolin have perfected a cross-appeal.
The deed from Bay to Blackburn vested the title in Blackburn. Had this deed been made upon the sole consideration of the agreement to support, it might have been rescinded upon failure of that consideration. The law of this subject was reviewed and restated in the case of Goodwin v. Tyson, 167 Ark. 396, 268 S. W. 15, and will not be here repeated. But the agreement to support was not the sole consideration for the deed. It was only a part of the consideration. Just what part does not appear.
At § 130 of the chapter on Contracts in 17 C. J. S., p. 477, it is said: “When there is a failure of a part of a lawful consideration, the part which failed is simply a nullity and imparts no taint to the residue. In such a case, as no particular amount of consideration is required, the promise may be enforced. In other words, if there is a substantial consideration left, it will still be sufficient to sustain the contract.” At § 420 of the same chapter it is further said: “An unsubstantial failure of consideration is no ground for rescission, but only the basis for recovery of damages, and so a contract cannot be set aside for a partial failure of consideration not affecting the entire contract.” See, also, Ensign v. Coffelt, 102 Ark. 568, 145 S. W. 232.
The agreement to support was only a part of the consideration, and Edward Blackburn insists that there was no failure of this part of the consideration, and that support and subsistence was in fact furnished by Steve, his father, in his lifetime, and by himself after Steve’s death; and it is certain that some contributions on this account were made. Bay took no action in bis lifetime to rescind the deed, and no person of his blood now asks that relief.
In the case of Jeffery v. Patton, 182 Ark. 449, 31 S. W. 2d 738, it was said: “The conveyances were not voluntary conveyances without consideration, nor was there any attempt to set. them aside as in fraud of creditors. If the consideration for the deeds was an undertaking on the part of the grantees to support and maintain the grantor, their father, for the remainder of his life and there was a failure on their part to comply with the undertaking, the grantor himself could have sued at law for the amount of the consideration after it became due, or treated the contract as void and brought suit in equity to cancel and set it aside for failure of consideration. If the conveyances had been made on such conditions, he or his heirs upon the condition broken could have set it aside. The grantor did not find it necessary, however, to convey the property upon condition and the right to cancel for failure of consideration because of maintenance not being furnished in accordance with the agreement, if there was such an agreement, was personal to him. Priest v. Murphy, 103 Ark. 464, 149 S. W. 98.”
As to the contract and will, hereinbefore set out, it may be said.
First, as to the contract: It was signed only by Bay, and not by Bolin, and as Bolin assumed no obligation, he could impose none on Bay. If both were not bound, neither was; and as Bolin did not obligate himself, he will not be heard to say that Bay became obligated. Moreover, the contract, by its terms, was upon the express condition that Bolin comply with the contract and agreement to support Bay, in which event it was agreed that all Bay’s possessions were to go to Bolin, and it was not shown that Bolin had complied with the conditions essential to vest title.
As to the will: It may be said that if Bay had previously conveyed the lot by deed, he could not subsequently devise it by.will to another. But in any event it will be remembered that Kaufman took the precaution to have Ray join in the execution of the mortgage to him; and while Ray did not borrow this money he had the right to mortgage his property to secure its repayment and this he did.
We conclude, therefore, that the court below was correct in holding that Kaufman’s mortgage was a valid and subsisting lien on the lot, and was prior to the Archer mortgage. This holding disposes of the questions raised on the cross-appeal.
In the matter of accounting, the testimony took a wide range, and is very confusing. In his final settlement as administrator of Ray’s estate, Bolin purported to account for the assets which had come into his hands except the lot. But this settlement does not appear to have been acted upon or to have been approved by the probate court. The only item with which Bolin charged himself as administrator was the insurance money, against which he claimed credit for the insurance premiums paid for many years by himself for Ray, and the expenses of Ray’s last illness and for his funeral. These items exceed the insurance collected. The administrator’s settlement recited that all the household goods had been delivered to Myrtle Caldwell, the devisee named in Ray’s will. There is no question but that the major portion of the Kaufman debt was paid by Bolin. Kaufman testified that it was, and the court found the fact so to be. Upon this holding it was decreed that Bolin should be subrogated to the rights of the mortgagee. Later the mortgage was actually assigned to Bolin. It is unimportant to determine whether Bolin acquired the mortgage by subrogation or by its assignment to him; in either event he would be entitled to enforce the lien of the mortgage to the extent of the debt which it secured. To ascertain this sum was the purpose of the accounting, and the court found that sum to be $489. It would be interminable, and of small service, to discuss the various transactions between Bolin and Ray which’ led the court to this conclusion. We have carefully considered the testimony on these questions of fact, and are unable to say that the findings of the court are contrary to the preponderance of the testimony.
The decree must, therefore, be affirmed both on the direct and the cross-appeal, and it is so ordered. | [
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Frank Holt, Justice.
This is an exploding bottle case. The appellee suffered injury to an eye which resulted in its removal. The injury occurred while appellee, an employee of a grocery store, was handling a six-pack carton of Royal Crown Cola bottles.
Appellee filed a complaint alleging specific acts of negligence and, alternately, negligence on the theory of res ipsa loquitur. In a separate complaint appellee alleged breach of warranty. Appellant’s answers raised the defenses of contributory negligence and assumption of risk and specified that it had been notified of the subrogation rights of an insurance carrier as provided by the workmen’s compensation laws where compensation is paid to an injured employee.
Upon trial the two complaints wore consolidated by agreement of the parties. Appellant struck from its answers the defenses of contributory negligence and assumption of risk. Appellant introduced no testimony. The court denied appellant’s motion for a directed verdict on each complaint. The jury returned a verdict favorable to the appellee and this appeal comes from the judgment on that verdict.
Appellant argues that appellee’s allegations of specific acts of negligence and, alternately, negligence on the theory of res ipsa loquitur are inconsistent and, therefore, impermissible. However, in a recent opinion this court said that allegations of specific acts of •negligence and res ipsa loquitur are compatible and may be relied upon in the same proceeding. Moon Distributors, Inc. v. White, 245 Ark. 627, 434 S.W. 2d 56 (1968).
Appellant contends that the court erred in denying its motion for a directed verdict on each complaint. Appellee ably states that crucial to appellant’s cause is its-contention that res ipsa loquitur does not apply. We are of the view that res ipsa is not applicable in the case at bar.
The basic components of the doctrine of res ipsa loquitur are found in AMI 610 which was the instruction given in this case. They are: (1) exclusive control; (2) no opportunity for condition of bottle to have changed; and (3) in normal course of events, no injury would have occurred if the bottler had used ordinary care while the bottle was under its exclusive control.
The element of exclusive control is flexible and has not been applied literally in exploding bottle cases. Coca-Cola Bottling Co. of Ft. Smith v. Hicks, 215 Ark. 803, 223 S.W. 2d 762 (1949); Coca-Cola Bottling Co. of Helena v. Mattice, 219 Ark. 428, 243 S.W. 2d 15 (1951); Coca-Cola Bottling Co. v. Jones, 226 Ark. 953, 295 S.W. 2d 321 (1956); Dr. Pepper Bottling Co. of Newport v. Whidden, 227 Ark. 13, 296 S.W. 2d 432 (1956).
In the Hicks case we said that the requirement of exclusive control is satisfied when the plaintiff shows that there was practically “no opportunity for the content or character of the charged bottle to have been changed from the time it left defendant’s hands unti' it exploded.”
In the above cited cases we adopted the view that the doctrine of res ipsa loquitur was applicable to the facts in each case, even though at the time of the alleged injury tlie bottle was not strictly under the exclusive control of the defendant bottler. There was evidence presented in these cases that, after delivery by the defendant bottler and while in the retailer’s possession, no one had disturbed or mishandled the offending bottle.
In the case at bar, the appellee, while attempting to dust some cans on the top shelf of a soft drink self-service display counter, owned and serviced by the appellant and other bottlers, removed a six-pack of Royal Crown Cola from the bottom shelf and placed it on the floor. He accidentally tipped it over on the floor on its side as he stepped upon the shelf. No bottle fell from the carton. After cleaning the upper shelf, appellee attempted to raise the carton to an upright position by grasping the top of one of the bottles in the carton and pulling up on it. At that instant the bottle exploded, injuring appellee’s eye. The bottle fragments were reassembled later and introduced in evidence as proof that the explosion resulted from a crack in the neck of the bottle caused by a blow from a hard, round object. The bottle in question was transported from Little Rock to Bryant on an open truck stocked with cartons or cases of soft drinks. The offending bottle was on the premises for at least three full business days before the accident, and possibly longer since deliveries were made each week. Customers would serve themselves and handle soft drinks individually and in cartons. Sometimes six-bottle cartons would contain a mixture or variety of soft drinks. The carton in question contained only Royal Crown Cola bottles. Appellant and other soft drink companies restocked the shelves of the display counter as needed.
Appellee testified that before his injury he had at no time handled the bottle nor worked in the soft drink section. He had started to work there a few days previously. His employer, who was the store owner, and his -wife ’were present when the incident occurred. They testified that from the time of the delivery until the accident they had done nothing to disturb or damage the bottle in any manner.
An expert in analysis of bottle failures testified that lie found three factors which contributed to the explosion. First, there was an initial blow by a hard, round object, causing a partial cracking through the neck of the bottle. The object could have been another bottle, but could not have been the metal base of a grocery cart nor the base of a can. The examination revealed that the hardness of the object which struck the bottle would have to be equivalent to the hardness of glass. The impact could not have occurred when appellee upset the bottles. Second, there was internal pressure due to agitation of the contents, and third, there was the stress of the leverage which was applied when appellee attempted to set the carton upright. This was “the straw that broke the camel’s back.”
Appellant points to the fact that there was ample opportunity for the character of the bottle to have been changed after leaving the appellant’s possession, especially since customers were allowed to handle and mix soft drinks as desired. However, in the case at bar there was evidence of more than the mere possibility of customer mishandling and abuse. There was undisputed evidence that bottles were abused by the customers. The store owner’s wife (appellee’s witness), on cross-examination, testified:
“Q. Was that the first noise you heard, the thump and the glass?
A. Yes, sir.
Q. When you heard that, did you'know what had happened?
A. Yes.
Q. From the sound of it?
A. From the sound of it. You get used to those things in the grocery store.
Q. That had happened on previous occasions, people knocking drinks off shelves?
A. I have heard them explode before. Some has been dropped. Some has been dropped off the bottom of the shopping carts.”
In view of this uncontradicted evidence, we cannot say that in the case at bar the doctrine of res ipsa loquitur is applicable.
Appellant relies upon Weggeman v. Seven-Up Bottling Co. of Watertown, 5 Wis, 2d 503, 93 N.W. 2d 467 (1958); Ferrell v. Royal Crown Bottling Co. of Charleston, 144 W. Va. 465, 109 S.E. 2d 489 (1959); and Escola v. Coca-Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P. 2d 436 (1944), where the possibility of “customer mishandling” was satisfactorily answered.
In Weggeman the court said:
“ * * * It is not essential that the possibility of other causes of the accident be altogether eliminated, but only that their likelihood be so reduced that the greater probability lies at defendant’s door. The evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it.”
In Escola the court said:
“ * * * It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permit ting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it.”
Also, see Prosser, Law of Torts (2d ed. p. 205), where he states:
* * Again, however, the evidence need not ■ be conclusive, and only enough is required to permit a finding as to the greater probability.”
In the case at bar there is undisputed evidence of customer abuse. Therefore, in view of this, we cannot say that the possibilities of the cause of this accident are so reduced that the greater probability of the cause lies at the defendant’s door.
Further, we are of the view that the appellee’s evidence is insufficient to establish a submissible issue based upon the allegation of warranty.
Appellee urges that we also consider that he should prevail on the issue of strict liability. This issue was first raised on appeal and, therefore, we do not reach it in this case.
Reversed and dismissed.
Harris, C.J. and Jones, J., dissent. | [
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Smith, J.
Appellee, Joseph Randolph, brought this suit to cancel a deed which' he had executed to appellant, Ida E. Patton, his foster sister. In the decree, from which is this appeal, granting the relief prayed, the following findings of fact are recited.
Randolph owed Payne ¡Brothers the sum of $513.63, which was secured by a mortgage on a forty-acre tract of land which he owned. Appellee, Randolph, became ill, and was carried to his sister’s home, and while there .told her that he had been unsuccessful in his attempts to borrow money to pay Payne Brothers. Appellee applied to B. C. Pouncey for a loan on the land, already mortgaged to Payne Brothers, which Pouncey declined to. malee unless the title was in appellant, whereupon the land was conveyed to appellant by appellee for the purpose of procuring the loan. It was then orally agreed between appellant and appellee that the land should be rented by appellant and the rents applied to the payment of the money to be advanced by Pouncey, and when that indebtedness .bad been paid the land should be reconveyed to appellee. In reliance upon this agreement, and the confidence he reposed in his foster sister, appellee conveyed the land to her. Rents were collected by appellant for the years 1935, 1936, 1937 and 1938, in an amount sufficient to pay Pouncey, that indebtedness being* evidenced by a mortgage which appellant gave Pouncey on the land, the debt to Payne ¡Brothers having been paid when the loan from Pouncey was obtained.
Pouncey testified that he had no intimation that the deed from appellee to appellant was not an absolute conveyance, as it purported to be. He further testified: “Later on, about two years ago, he (Randolph) came to me and asked me, ‘Have I got any interest in this property?’ I said: ‘ No, you gave Ida Patton a deed. ’ He said the only reason he wanted to know about it was that he wanted to get a pension, and if he owned any property he could not get it, and he was glad to know that he did not.”
There was no finding, nor was there any testimony tending to show, that any fraud or improper influence was exercised upon appellee to induce him to execute the deed. He executed the deed in reliance upon his sister’s promise to reconvey the land to him when she had collected enough rent to pay the debt to Payne Brothers, and that collection has been made. The land was shoAvn to be worth about $2,000. The testimony that appellant received the deed to the land from appellee upon the condition that it should be reconveyed when the Payne Brothers debt was paid is sharply controverted, but we accept that finding of the chancellor as being sufficiently established. However, the only fraud alleged or shown was that appellant did not keep faith with her brother, and fraudulently failed to reconvey the land to him. No attempt was made to show when, this fraudulent purpose was conceived.
The opinion in the case of Holt v. Moore, 37 Ark. 145, appears to be decisive of the issue here raised. It was there said: “A parol promise to reconvey, where the sale is absolute, comes within the statute of frauds. The agreement must be in writing. Parol evidence may be introduced to show that a deed, absolute on its face, is indeed only, as between the parties, a mortgage when a subsisting debt remains to support it. But where there is no remaining debt due to the .vendee, where the consideration has passed, or the obligation to pay it has been incurred and there is no obligation of the vendor to repurchase we know of no case where it has held that this option may be retained by parol agreement, any more than a right to make an original purchase at a future time. The equity doctrine for showing by parol that a deed was in fact a mortgage has never been extended so far, and indeed could not be -without opening the flood gates of perjury in a country where property so often and unexpectedly increases in value with startling rapidity. Nevertheless, the use of such a promise in overreaching a weak or ignorant mind might become an element of fraud to be considered in connection with other circumstances.”
The deed here in question is an ordinary warranty deed. No debt subsisted between the grantor and grantee. No fraud was practiced in procuring its execution. The acknowledgment was taken by A. L. Waring, the president of the Bank of Hughes, who knew- and Avas k'nOAvn to both parties. That official testified that appel-lee had discussed with him the execution of the deed both before and at the time of its execution, and appellee knew perfectly well that its purpose and effect was to convey the land to his sister.
It may be said of the testimony in this case, as Avas said of the testimony in the case of Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848, that “There is no testimony that he acquired the title by any intentionally false or fraudulent promise, so that it could be said that a trust ex maleficio arose from the transaction. To create such a trust, the mere verbal promise and its breach is not sufficient. There must be some element of fraud practiced whereby the execution of the deed is induced; and in the case at bar there is not a tittle of testimony indicating that any such fraud Avas practiced by the hus band upon the wife in obtaining this deed. 3 Pomeroy, Equity Jurisprudence, § 1056.”
In the case of Ammonette v. Black, 73 Ark. 310, 83 S. W. 910, after quoting from § 1056 of Pomeroy’s Equity-(the same section cited in the Spradling Case from -which Ave have just quoted) a statement of the laAV to the effect that a trust ex maleficio occurs whenever a person acquires the legal title to land by means of an intentionally false and fraudulent verbal promise to hold the land for a certain specified purpose, and, having thus fraudulently obtained the title, retains, uses and claims the property absolutely as his own, so that the Avhole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit, Justice Riddick added: “There must, of course, in such cases be an element of positive fraud by means of which the legal title is Avrongfully acquired, for, if there was only a mere parol promise, the statute of frauds Avould apply. ’ ’
It may be said that there is lacking here any testimony of positive fraud, by means of which the legal title Avas wrongfully acquired, and the testimony shows only a mere parol promise to reconvey.
In the case of Tatge v. Tatge, 34 Minn. 272, 25 N. W. 596, it Avas held by the Supreme Court of Minnesota, in an opinion by Judge Mitchell, that the mere refusal to perform a verbal agreement, void under the statute because not in writing, is not fraud for which a court will declare and enforce a constructive trust. There was an additional opinion in that case, also written by Judge 'Mitchell, disposing of a petition for rehearing. 26 N. W. 121. This additional opinion recited that a reargument was asked, upon the ground that the court had overlooked the point that the evidence conclusively showed that when Mrs. Tatge, the grantee in the deed attacked, made the promise to reconvey, she did not intend to fulfill it, aiid that this amounted to actual fraud, which constituted Mrs. Tatge a. trustee ex maleficio. In disposing of this contention it was there said: “Now the authorities are uniform that a mere refusal to perform a verbal promise, void under the statute, is no ground for relief on the ground of fraud. This is so for the manifest rea- soil that if a party chooses to go outside of the law, and trust to the honor of another, he must take the consequence of his misplaced confidence; and, in such a case, we fail to see how it can make any difference whether the' promisor did or did not at the time intend to fulfill the promises. The case is obviously different where there has been some concealment or misrepresentation of facts or of the real nature of the transaction, or some oppression, intimidation, lindue influence, or the like, by means of which a party has been deceived or entrapped into making the conveyance. But, notwithstanding- certain loose remarks in some of the cases, we find no well-considered case which holds that the mere intention not to perform will, in and of itself alone, furnish a ground for relief on the ground of fraud. Take the somewhat analogous case where goods are sold on the faith of a verbal guaranty, it has never been contended that relief should be given on the .ground of fraud because the guarantor did not intend to perform his guaranty, his design being merely to induce the vendor to part with his goods, and then escape liability under cover of the statute. 'See 1 Lead. Cas. Eq. 358.”
The case of Armstrong v. Armstrong, 181 Ark. 507, 27 S. W. 2d 88, is relied upon to sustain the decree' from Avhich is this appeal. There a trust was impressed upon lands which had been conveyed by a deed absolute in form, upon the showing made that the purpose of the deed was to create a trust for a specific purpose. There the grantors conveyed to Monroe Armstrong, their elder, brother, to enable Monroe to borrow money to discharge a mortgage placed upon the lands by their ancestor. The opinion recites that “The appellees (grantors) are ignorant negroes, some of them almost imbeciles, and their testimony as to their knowledge of Monroe’s intention is neither clear nor definite, but, as Monroe was the elder brother, apparently the most intelligent, and in whom they had trust and confidence, the chancellor might have reasonably concluded that they did not realize the intention of Monroe until he made a conveyance of the timber standing upon the land, . . .”
Here, there is no question about appellee’s intelligence. He appears to have been as canny as he was un-candicl. Notwithstanding the fact .that he alleged in his complaint, and his original testimony was to the effect, that he did not know that he had executed a deed but thought he had executed a will, his deposition shows that he possessed, at least, average intelligence, and we have no doubt, as Mr. Waring testified, that appellee knew exactly what he was doing when he executed the deed, and we are convinced also that no fraud, duress or deception was practiced upon him to induce its execution. His own and other testimony in his behalf establishes only the fact that he conveyed 'the land to his sister in reliance upon her verbal promise to reconvey to him when his mortgage debt had been paid, and, as was said by Justice Frati-ENThal in the case of Spradling v. Spradling, supra, this verbal promise, and its breach, is not sufficient, alone, to create a trust ex maleficio.
The decree of the court below, ’ canceling the deed from appellee to appellant, must,’therefore, be reversed, and the cause will be remanded with directions to dismiss the complaint as being without equity. | [
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John I. Purtle, Justice.
We have considered the juris dictional statements of the parties in taking this case for consideration. It is our opinion that Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rules 401,402and403 are required to be interpreted in deciding this case.
Appellees recovered a judgment, in the Pulaski County Circuit Court, against appellant, Cullum & Boren, as a result of appellee, James E. Peacock, being shot by one Francis T. Blodgett, with a handgun purchased from appellant. Recovery was based upon common law negligence of appellant in selling the handgun to Blodgett. This appeal is from the jury verdicts in favor of James E. Peacock in the sum of $170,000 and for his wife, Charlotte Peacock, in the sum of $30,000.
The judgment was against Blodgett, who does not appeal, and appellant, jointly and severally. On appeal it is urged that the trial court erred in three respects: (1) In failing to grant a directed verdict for appellant, (2) allowing the desposition of Blodgett to be presented to the jury, and (3) in failing to hold as a matter of law that appellant could not be more negligent than Blodgett. We agree the deposition of Blodgett regarding his consultation with a psychiatrist more than 13 years previous to the shooting was prejudicial error. We do not reach the question of comparative negligence because a retrial may not present the same question.
The facts reveal Francis T. Blodgett appeared at Cullum & Boren at the McCain Mall in North Little Rock, Arkansas, on February 15, 1978, and sought to purchase a .38 pistol. The manner in which Blodgett inquired about the purchase aroused the suspicion of the salesman, McDonald. When Blodgett selected the pistol he wanted, he did not have enough money to pay for it. Therefore, he left the store with the declared intent of obtaining additional money for the purchase of the pistol he had selected. While Blodgett was gone McDonald requested John Moore, a fellow employee of Cullum & Boren, to observe Blodgett upon his return in order to determine whether he thought Blodgett was acting strangely. Upon Blodgett’s return McDonald engaged him in conversation and observed him to the extent he was satisfied Blodgett was a suitable person to purchase the pistol. During the conversation prior to the purchase, Blodgett stated he had recently been burglarized and wanted to purchase a gun that would make a big hole. There is a dispute as to whether he stated he wanted one which would make a big hole in a man. Blodgett experienced no difficulty in filling out the handgun purchase form (ATF #4473) required when a person purchases a firearm. The purchaser appeared calm and answered all questions without assistance. After Blodgett left the store, McDonald went to the front and discovered Blodgett was apparently loading the gun while seated in his vehicle in the parking lot near the appellant’s store. This upset McDonald and he notified his supervisor, Charlie Keck, who called the Jacksonville police to report the incident. It is disputed whether Keck told the officer that Blodgett had stated he wanted a gun which would “make a big hole in a man” or whether he stated he wanted one “which would make a big hole.” In any event, Blodgett shortly appeared at Peacock’s office and shot him about three times, without any known reason.
The jury answered interrogatories which set the damages at $170,000 for Peacock and $30,000 for his wife. The negligence was apportioned on 25% to Blodgett and 75% to Cullum & Boren.
We first consider the question of whether the trial court -should have granted a directed verdict. The issues were presented to the jury solely on the theory of common law negligence on the part of Cullum & Boren. We do not believe the case of Franco v. Bunyard, 261 Ark. 144, 547 S.W. 2d 91, cert. denied, 434 U.S. 835 (1977), has any application to the present case. In Franco we held the failure to follow the federal gun control act in selling a firearm was evidence of negligence. However, in the present case the evidence is undisputed that the gun control act was followed. There is no Arkansas statute relating to the sale of firearms to individuals by retailers. The General Assembly, which speaks for the people of Arkansas, has not seen the need to enact legislation regulating the sale of handguns. It is not the function of the courts to enact legislation. Therefore, there is no statutory negligence to be considered in the present case.
We find sufficient evidence in the record of this case to justify submitting the case to the jury against appellant on the grounds of common law negligence. On appeal we consider the evidence in the light most favorable to the appellee. It was a question of fact whether Blodgett requested a weapon which would blow a big hole in a man. Obviously appellant’s employees were suspicious of the purchaser. We cannot say as a matter of law there was no substantial evidence upon which the jury could have reached its verdict.
We next consider the question of whether the court erred in admitting that portion of Blodgett’s deposition which indicated he had been treated by a psychiatrist between 1960 and 1965, the latest treatment having occurred more than 13 years prior to the date of the incident upon which this cause of action is based. Blodgett had been under the treatment of a physician for a number of years prior to this incident. The present attending physician indicated Bodgett was reacting normally to the medication which was being prescribed. Admittedly, there was a possibility that Blodgett could have saved up his medicine and taken what amounted to an overdose at any particular time. However, this is a possibility which does not rise above speculation. There was no evidence whatsoever presented at the trial to indicate that Blodgett was suffering from mental disease which related back to 1965. In fact, the earlier treatment was not for a mental disease so far as the record shows. We think this evidence was controlled by Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rules 401, 402 and 403. These rules are as follows:
Rule 401. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.
Rule 403. Although relevant, evidence may be ex- eluded 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 evidence of the previous psychiatric consultation is governed by these rules. Although it may be argued the evidence was relevant, it may be fairly said that its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or was misleading to the jury. It seems likely the jury may have relied upon this evidence which in reality had no connection with the shooting that occurred on February 15,1978. There simply is no connecting evidence between the prior psychiatric treatment and the present condition of Blodgett. We do not believe that the evidence of his prior psychiatric consultation hád any tendency to make the existence of the allegations in this case more probable or less probable than it would have been without the evidence. Introduction of this portion of Blodgett’s deposition constituted prejudicial error.
As to whether Cullum & Boren could be found more responsible than Francis T. Blodgett is not considered at this time because on retrial the responsibility may not be apportioned in the same manner.
For the above reason the case is reversed and remanded for a new trial.
Reversed and remanded.
Stroud and Mays, JJ., not participating. | [
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Conley Byrd, Justice.
Appellant sought to set aside a mortgage he had executed on Waverly Plantation to the appellee Bank of New Orleans and Trust Company for $1 ,- 200,000.00 on the basis of mutual mistake and fraud. The trial court in holding against appellant’s contentions stated:
“At the time of the sale, Allen Thompson knew that there were not 2,300 and some acres in Waverly. I almost feel that M. E. Ratliff knew that there were not 2,300 and some acres in Waverly. There is question about Insley Bar being in Tennessee or Arkansas, but the plat shows that part of it certainly is in Tennessee. The Defendant stated that he had the plat prior to the sale so he is charged with notice of this. And if the Vendee knows the amount of land he is purchasing, he has no right to rely upon the representation of the Vendor as to the quantity of the land. W. D. George, upon questioning by the court, stated that Mr. Lewis told Mr. Ratliff that there were not 2,400 acres but only 1,900 acres of which 1,500 acres were cultivatable. Due to Mr. Martin’s testimony the Defendant Ratliff was put on notice that there were only 1,543 acres in the farm in January. On March 15, Mr. Ratliff executed a lease agreement for an additional year, entering into a two-year lease on the property which results in an inconsistent position. The law precludes one who accepts the benefits from repudiating the resulting obligation. Further, the Defendant, Ratliff, entered into agreements for the sale of Waverly on more than one occasion which would have resulted in some $50,000.00 profit. Courts have held that leasing of property by the purchaser who holds a right to rescind, constitutes a waiver of that right. Therefore, the lease to Looney Brothers granting them an Option with knowledge of the deficiency of the acreage amount to a waiver of the right of rescission.”
Based upon an appraisal of C. V. Dodd showing that Waverly Plantation consisted of 2349 acres the Bank of New Orleans had taken a mortgage to secure an indebtedness of Allen Thompson in the amount of $1,050,000. Thompson had other indebtedness with the Bank of New Orleans including two outstandings letters of credit totalling $220,000. In October of 1976, Thompson, who was not meeting his obligation with the Bank of New Orleans on his Waverly Plantation note, contacted appellant Ratliff about the purchase of Waverly Plantation. Ratliff was given a copy of a “quad” map covering parts of Tennessee and Arkansas with a shaded area encompassed by a pink border with the words “Waverly Plantation approx. 2300 M/L” printed thereon in large letters.
Ratliff testified that Thompson told him there were 1500 acres in cultivation and another 400 acres that could be put in cultivation making a total of 1900 acres of cultivated land. Thompson at the same time agreed to make the financing arrangements with the Bank of New Orleans subject to a $600,000 mortgage in favor of Prudential Insurance Company. After Thompson and Ratliff reached an agreed price of $1,900,000, Thompson contacted John Hampden Lewis, Vice President of the Bank of New Orleans who came to Memphis to investigate the proposed sale to Ratliff.
The parties have a difference about what Lewis said while in Memphis. Ratliff says that Lewis represented Waverly Plantation to consist of 2400 acres, 1900 of which was cultivatable — i.e., 1500 in cultivation and 400 that could be cleared. Bill George, who shares offices with Ratliff testified that Lewis stated he understood that farm to contain 2400 acres with 1500 acres in cultivation and another 400 that could be cleared. However, Bill George had originally understood from Thompson that there were 1000 acres of cotton and 900 acres of beans in cultivation. John Hampden Lewis testified that he did not discuss the number of acres involved.
John Hampden Lewis testified that he was furnished a financial statement by Ratliff showing net assets in excess of four million dollars. Ratliff denies that he furnished such a statement. However, the record contains such a financial statement admittedly containing Ratliff’s signature.
The record shows that Ratliff and Thompson together with their lawyer Hal Freeland showed up at the Bank of New Orleans on November 12, 1976, to close the transaction. The Bank of New Orleans refused to make Ratliff a $1,200,000 loan subject to the Prudential Mortgage without a down payment of $125,000. Ratliff proposed to pledge some German 1925 series bonds as security but the Bank of New Orleans refused. In late November John Hampden Lewis flew to Memphis and contacted Mr. George Long, an independent real estate appraiser to determine the value of Waverly Plantation for purposes of a quick sale. Long apparently contacted Lewis by phone on December 3, 1976, and gave Lewis the following information as per Defendant’s Exhibit “B” to wit:
12-3-76
$1,250,000.00
1,000 Acres North of Levee, protected land 840 acres, very good land
600 Acres South and East of Levee, 168 acres of farmable land
250 Acres 61 acres on both sides of levee 302 of timberland
1,031,050 1,371 Total Acres plus vast amount of acreage on Sandbars — and subject to arguments as to ownership (800 acres).
On December 6,1976, the matter was closed at the Bank of New Orleans with the delivery of a certified check in the amount of $111,632.49 and the Bank’s acceptance of the $1,200,000 note and mortgage originally executed by Ratliff on November 12, 1976.
Following the closing on December 6, 1976, Ratliff contacted Joe E. Martin with the Federal Land Bank in January and was informed that there was only 1,543 acres in Waverly Plantation which included only 909 acres of cropland.
Joe Looney contacted Ratliff with reference to leasing the property before March 1977 and informed Ratliff that there was not 1500 acres in cultivation. Looney Brothers Farms, a partnership, had farmed Waverly Plantation from 1956 through 1978 except for three years.
Notwithstanding the foregoing information, Ratliff made two advanced quarterly interest payments in the amount of $24,266.70 each in March and June 1977. Ratliff also entered into a two year lease agreement with the Looney Brothers Farms containing an option to purchase and pledged the two year rent agreement to the Forrest City Production Credit Association for $100,000 loan.
Ratliff’s cross-complaint against Thompson was dismissed without prejudice.
Like the trial court, after viewing the “quad” map (Defendant’s Exhibit “R”) we have some question about whether appellant Ratliff was justified in asserting that Waverly Plantation consisted of 2300 acres. He would certainly have been put on notice as early as his first discussion with the Federal Land Bank’s agent that that much acreage did not exist. Instead of acting promptly, however, he made two quarterly advance payments of interest to the bank in March and June of 1977 and entered into the two year lease with Looney Brothers Farm containing an option to purchase and by which he secured $100,000 from the Forrest City Production Credit Association. Thus as we view the facts, Ratliff by accepting the benefits of the bargain is estopped to demand rescission against the Bank of New Orleans. As pointed out in McCormick v. Daggett, 162 Ark. 16, 257 S.W. 358 (1924):
“It is clear that McCormick is not now entitled to rescind the contract. One who claims to have been deceived is required, as soon as he learns the truth, to disaffirm the contract with all reasonable diligence, so that both of the parties may, as nearly as possible, be restored to their original position. ‘He is not,’ says Pomeroy, ‘allowed to go on and derive all possible benefits from the transaction and then claim to be relieved from his own obligations by a rescission or a refusal to perform on his own part. If after discovering the untruth of the representations, he conducts himself with reference to the transaction as though it were still subsisting and binding, he thereby waives all benefit of and relief from the misrepresentations.’ Pomeroy’s Equity Jurisprudence (4th ed.) Vol. 2, § 897.”
To avoid the foregoing law with respect to the necessity of prompt action by one claiming rescission, appellant relies upon First National Bank of Wynne v. Coffin, 184 Ark. 396, 42 S.W. 2d 402 (1931). That case is distinguishable from the facts before us because there the First National Bank of Wynne undertook to remedy the deficiency in its deed and persuaded Coffin to give them time to get an act through the General Assembly of the State of Arkansas. In other words the First National Bank of Wynne by its conduct caused the delay. Here no such conduct can be laid at the feet of the Bank of New Orleans.
Affirmed.
We agree: Harris, C.J., and Holt and Purtle, JJ. | [
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J. Feed Jones, Justice.
The appellant, Nancy Young Neal, sustained a compensable injury to her left hand while in the course of her employment as a mangle operator for 7-11 Laundry and Cleaners in Fort Smith. 7-11 Laundry and Cleaners is a domestic corporation with J. P. Oliver, his wife and son as the sole owners of the corporate stock. Oliver is the president of the cor poration and was general manager and supervisor of employees at the time of appellant’s injury. 7-11 Laundry and Cleaners came within the provisions of the Workmen’s Compensation Law and the appellant was paid full compensation benefits for her injury. The appellant subsequently filed suit in the Sebastian County Circuit Court for personal injuries against Mr. and Mrs. Oliver alleging negligence in assigning her to work on an unsafe machine and in failing to provide the machine with a protective device, in the form of a safety bar, in violation of the state safety code.
On motion for summary judgment, the trial court dismissed the complaint under findings as follows:
“That the Plaintiff, Nancy Young Neal, while employed by the Defendant, J. P. Oliver, and within the course of her employment, did, on April 30, 1965, sustain an injury while operating a mangle ironing machine.
That the Defendant carried full Workmen’s Compensation benefits and that the Plaintiff received full compensation benefits including medical and disability both temporary and permanent.
That in view of the pleadings, the Motion and Affidavit attached thereto, the Court finds there is no genuine issue as to any material facts. Thai question of law is presented to the Court, and the Court finds, as a matter of law, that the Plaintiff, receiving, and accepting full Workmen’s Compensation benefits from the Defendant, J. P. Oliver, is therefore barred from filing a suit in negligence at common law against the same employer, J. P. Oliver.”
On appeal to this court, the appellant designates the following point for reversal:
“Appellee, a supervisor, officer and manager, is a third person within the meaning of the "Workmen’s Compensation statute and, as such, may be held to answer for his own negligence.”
The appellant says “this cause involves the sole issue as to whether or not the manager of a corporate business is a third person within the meaning of the Arkansas Workmen’s Compensation Laws, Ark. Stat. Ann. § 81-1301, el seq.,” and appellant cites several cases from other jurisdictions wherein managers of corporate businesses have been held to be fellow-employees against whom negligent tort actions will lie. But we do not consider the issue in the case at bar to be quite as broad and general as the appellant indicates. The sole issue, as we view the facts in this case, is whether Mr. Oliver, the manager of the corporate business involved in this case, was a third party within the meaning of the Arkansas Workmen’s Compensation Law (Ark. Stat. Ann. § 81-1340 (a) (Eepl. 1960), under the specific facts of this particular case. We conclude that he was not for the reason that he was also the appellant’s employer.
The compensation law does not give or create a cause of action against a third party causing a compensable injury to the employee, but only makes it plain that such common law remedy as the employee already had against tort feasors prior to the enactment of the Workmen’s Compensation Act, was fully preserved and left unchanged by the act when the tort feasor is other than the employer. >
Arkansas Statutes Annotated § 81-1340 (a) (Eepl. 1960) is as follows:
“(1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them, join in such action they shall be entitled to a first lien upon two-thirds [2/3] of the net proceeds recovered in such action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(2) The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury, to which this act [§§ 81-1301 — 81-1349] is applicable, or the adjustment of any such claim shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows: Reasonable costs of collection shall be deducted; then one-third [1/3] of the remainder shall, in every case, belong to the injured employee or his dependents, as the case may be; the remainder, or so much thereof as is necessary to discharge the actual amount of the liability of the employer and the carrier; and any excess shall belong to the injured employee or his dependents.”
The term “third party” is not defined in the act and the first and second parties are not even mentioned, but from the language employed in the context it is used in § 1340 (a), supra, “third party” can only mean some person or entity other than the first and second parties involved, and the first and second parties can only mean the injured employee and the employer or one liable under the compensation act. Thus, it is obvious from the wording of the statute, as well as common sense, that a “third party” within the meaning of the act, must be some party other than an employer who is liable under the act and to whom is also given a statutory right of subrogation against a third party tort feasor. The terms “employer,” “employee” and “employment” are defined in the compensation act, Ark. Stat. Ann. § 81-1302 (a) (b) and (c) (Repl. 1960), as follows:
“(a) ‘Employer’ means any individual, partnership, association or corporation carrying on any employment, or the receiver or trustee of the same, or the legal representative of a deceased employer.
(b) ‘Employee’ means any person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession or occupation of his employer. Any reference to an employee who has been injured shall, when the employee is dead, also include his legal representative, dependents and other persons to whom compensation may be payable.
(c) ‘Employment’ means:
(1) Every employment carried on in the State in which five [5] or more employees are regularly employed by the same employer in the course of business or businesses, except domestic service, agricultural farm labor, institutions maintained and operated wholly as public charities, the State of Arkansas and each of the political subdivisions thereof, any person engaged in the vending, selling or offering for sale, or delivery directly to the general public, any newspapers, magazines or periodicals, or acting as sales agent or distributor as an independent contractor of or for any such newspaper, magazine or periodical.
(2) Every employment in which two [2] or more employees are employed by any person engaged in building or building repair work.
(3) Every employment in which one or more employees is employed by a contractor who subcontracts any part of his contract.
(4) Every employment in which one or more employees is employed by a subcontractor.”
Appellant correctly points out that this court has held a fellow-employee to be a third party within the meaning of the act, and cites King v. Cardin, 229 Ark. 929, 319 S.W. 2d 214. In the King case King drove a dump truck in hauling asphalt on a highway construction job and Dyer spread the asphalt hauled by King. They both were employed by the same contractor. King negligently backed a dump truck over Dyer and fatally injured him. Dyer was not working for King, he only worked with King and, of course, the compensation act did not absolve King from the legal consequences of his own acts of negligence toward Dyer while they both were working for the same employer. In the King case we said:
“We are not impressed by the argument that the Workmen’s Compensation Act prevents an employee, or his personal representative, from maintaining an action for the negligence of a fellow employee. Our statute merely provides that the remedies under the Act are exclusive of other remedies against the employer. Ark. Stats. § 81-1304. The making of ■ a claim for compensation does not affect the right of the employee or his dependents to maintain an action against a third person. § 81-1340. Under a statute like ours a negligent co-employee is regarded as a third person. Botthof v. Fenske, 280 Ill. App. 362; Kimbro v. Holladay, La. App., 154 So. 369; Churchill v. Stephens, 91 N.J.L. 195, 102 Atl. 657.”
The appellant cites Brooks v. Claywell, 215 Ark. 913, 224 S.W. 2d 37, and argues that since we have held a "president of a corporation to be also an employee for the purpose of bringing the business under the provisions of the compensation act, we should now “pierce the corporate veil” and hold the president and manager of a family corporation to be a fellow-employee for the purpose of third party liability. We do not agree with this contention, for the difference lies in the employee-employer relationship in determining third party liability as in the case at bar and as distinguished from the title of the chief officer of the business entity and nature of the tasks he performs in determining liability for compensation coverage and jurisdiction of the Commission under the act as in Brooks v. Claywell. One is the relationship between two individuals; the other is the relationship between one individual and the business. Brooks was the president of a family corporation and worked in the business along with four other regular employees. Brooks was found to be an employee for the purpose of bringing his business under the definition of “employment” as defined in § 81-1302 (c), supra, and his business was held to be subject to the jurisdiction of the Workmen’s Compensation Commission, Brooks constituting the fifth employee for that purpose. The question of whether Brooks could have also been a third party tort feasor against whom an injured fellow-employee could have maintained a separate tort action was not raised in that case.
The Workmen’s Compensation Act, Ark. Stat. Ann. §81-1304 (Repl. 1960) provides as follows:
“The rights and remedies herein granted to an employee subject to the provisions of this act [§§ 81-1301 — 81-1349], on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependants, or next kin, or anyone otherwise entitled to recover damages from such employer on account of such injury or death, except that if an employer fails to secure the payment of compensation, as required by the act, an injured employee, or his legal representative, in case death results from the injury, may, at his option, elect to claim compensation under this act or to maintain a legal action in court for damages on account of such injury or death. In such action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant employer plead as a defense that the injury was caused by the negligence of a fellow-servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.”
It is well established that a co-employee may be liable as a third party tort feasor in a workmen’s compensation case, and the predominen! view does not distinguish between a co-employee who occupies a supervisory position and one who has not achieved a status of such prominence. Tully v. Gardner’s Estate, 196 Kan. 137, 409 P. 2d 782; Boda v. Williams, 195 Kan. 507, 407 P. 2d 471. See also: Gardner v. Stout, 342 Mo. 1206, 119 S.W. 2d 790, involving the foreman of a flour mill; Ellis v. Garwood, 168 Ohio St. 241, 152 N.E. 2d 100, involving the head of an engineering section; Webster v. Stewart, 210 Mich. 13, 177 N.W. 230, where a corporate vice-president was involved. Churchill v. Stephens, 91 N.J.L. 195, 102 A. 657, where a shop foreman was sued.
The phraseology of the statute controls in many of the states in suits against fellow-employees by injured workmen and the case results are as varied as the statutory phraseology. In all the states the cases seem to turn on their own peculiar facts.
In Echols v. Chattooga Merchantile Company, 74 Ga. App. 18, the general manager of a company was held liable in tort for an assault on a fellow-employee. The court held in that case: “The defendant Berry and Chattooga Merehantile Company are not identical parties. His duty not to harm the employee was both as representative of the company and as an individual.”
In Evans v. Rohrbach, et al., 35 N.J. Super. 260, an employee was injured in the course of his employment while spreading a liquid plastic material inside a tank and an explosion occurred. Safety devices were not furnished and installed as required by the labor safety law. The injured -employee was paid compensation but sued the president of the corporation for failure to furnish the required safety devices. The suit was dismissed in that case, on the theory that the president was too far removed in the chain of authority, the employer being a large corporation.
In Leidy v. Taliaferro, 260 S.W. 2d 504, a corporate employee was riding in a corporation truck being driven by his father who was also an employee of the corporation. A suit against the corporate president and a corporate stockholder was permitted to go to the jury on the question as to whether plaintiff’s father, at the time of the accident, was acting as the personal agent of the defendant corporate president. In that case the two employees were on a personal mission for the company president to pick up personal furniture belonging to the president.
In Schumacher v. Leslie, 232 S.W. 2d 913, an injured workman who had received workmen’s compensation filed suit against the attending physician for alleged malpractice in connection with the industrial injury. In permitting the suit against the physician as a third party feasor, the Missouri Court said: “A third person is one with whom there is no master and servant relationship under the Act. * * * Section 3699, supra, recognizes common law rights against third persons and indicates an intention to preserve rather than abrogate such rights. No employer and employee or master and servant relationship existed between the instant plain tiff and defendant. The benefits of the Act accrue to those who share its burdens. Defendant did not share its burdens. He is not entitled to its benefits. Hence, w.e conclude he was a stranger under the Act, a ‘third ¡person.’ ”
In Peet v. Mills, 136 P. 685, an early Washington case, a workman was injured in a train collision which occurred in a fog. The railroad system was equipped with a block signal system for use in foggy weather, but when a new president of the company assumed control, the company ceased operating the block signal. Dismissal of the suit against the president was affirmed on appeal because the workman was covered by workmen’s compensation.
In the case of Rehn v. Bingaman, 36 N.W. 2d 856, a Nebraska Workmen’s Compensation Act had preserved to an injured employee his common law remedy and in holding that a fellow-employee was a third party within the meaning of the act, the court said:
“We conclude that the employee’s right of action against third persons for negligence proximately causing his injuries was a common-law right already existent outside of and notwithstanding the Workmen’s Compensation Act. In other words, section 48-118, R.S. 1943, not only preserved the employee’s common-law right to recover from third persons as it was before the act, but also, in the final analysis, simply gave the right of legal subrogation to his employer without depriving the employer of his right to equitable subrogation under circumstances requiring its application. Burks v. Packer, 143 Neb. 373, 9 N.W. 2d 471.
* * * [I]t is generally the rule that a fellow employee would also be such person regardless of the capacity of his employment, so long as he did not occupy the relationshi/p of employer of plaintiff. 57 C.J.S., Master and Servant, § 578, p. 348; 35 Ana. Jur. Master and Servant, § 425, p. 954, and § 526, p. 955, Annotation, 99 A.L.R., page 422; Hudson v. Moonnier, 8 Cir. 94 F. 2d 132, Id., 8 Cir., 102 F. 2d 96.” (Emphasis supplied).
Thus it is seen that a president or manager of a corporation or a business may or may not be a fellow-employee to others who are employed by the same corporation or in the same business,. and he-may or may not be personally liable for his tort causing injury to a fellow-employee, depending- on the nature of the tort in some states and the scope of his duties and authority in others. None of the cited cases quite reach the problem presented in the case at bar. They all deal with situations where,the fellow7employee tort feasor is something less than the employer also.
The appellant has cited no case, and we have found none, where the owner and president of a family corporation who hires, fires and directs his employees and who has provided them workmen’s compensation insurance coverage, has been held personally liable in tort for injuries sustained by negligently maintained equipment or unsafe working conditions under a workmen’s compensation statute similar to our own. Under compensation coverage the employer gives up the defense of contributory negligence and the injured employee is relieved of the burden of proving negligence but he gives up the right to sue his employer in a court of law.
A president of a corporation or the owner of a business may or may not be an employee of the corporation, or in the business, for the purpose of determining liability for compensation benefits under the Workmen’s Compensation Law. That would depend on what he does. Brooks v. Claywell, supra.
In the case at bar Mr. and Mrs. Oliver owned the corporate business and they, as well as the corporation, were the employers.
Arkansas Statutes Annotated § 81-1338 (c) (Eepl. 1960) provides as follows:
“No policy of insurance shall he issued against liability under this act [§§ 81-1301 — 81-1349] unless such policy cover the entire liability of the employer as to the business or businesses identified in the policy. As to any questions of liability between the employer and the insurer the terms of the policy shall govern.”
Arkansas Statutes Annotated § 81-1339 (Eepl. 1960) provides as follows:
“Any employer required to secure the payment of compensation under this act [§§ 81-1301 — 81-1349] who fails to secure such compensation shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred ($500.00) dollars, or by imprisonment for not more than one [1] year, or by both such fine and imprisonment. This section shall not affect any other liability of the employer under this act.”
The Olivers procured workmen’s compensation insurance for the benefit of their employees, including the appellant, and the appellant was paid the full compensation benefits under the compensation act and the insurance so procured. The appellant was not injured by a direct negligent act of Oliver, he wasn’t even on the premises when the appellant was injured. The negligence the appellant complains of is Oliver’s failure to provide a safe place for her to work as required by state law. Certainly the safety requirements under the lab- or laws should be enforced in this state and their violation should not go unpunished, but if Oliver was merely a third party fellow-employee, he had no duty to furnish a place for appellant to work — safe or otherwise. If the corporation was the employer and Oliver was the mere president, be was not personally liable in tort or under the compensation act for injuries sustained by corporate employees who are injured on defective corporate owned and maintained machines and equipment. If Oliver was the actual employer, his corporate title made no difference. His business was within the provisions of the Workmen’s Compensation Law, the appellant’s injury was compensable under the compensation law, and her rights thereunder are exclusive.
AYe hold that an employer-employee relationship existed between Oliver and the appellant at the time of her injury. AYe conclude that in no event could Oliver have been a “third party” within the meaning of Ark. Stat. Ann. § 81-1340 (a), supra, under the pleadings and facts of this case, and that the judgment of the trial court should be affirmed.
Affirmed.
Fouleman and Byrd, JJ., dissent. | [
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Humphreys, J.
On August 27, 1-937, the State of Arkansas, on the relation of the prosecuting attorney of Columbia county filed the following complaint in the chancery court of Columbia county to recover . $4,960.45 from Lula McAlister Gillum, Treasurer of Columbia county for the term from January 1, 1933, to December 31, 1934, and from the Fidelity & Casualty Company of New York, which was surety upon her official bond. The complaint is in words and figures as follows:
•“Comefe the plaintiff, State of Arkansas, for the use and benefit of Columbia county, Arkansas, on the relation of Oren Harris, as prosecuting attorney, and for its cause of action against the defendants, Lula McAlister Gillum and the Fidelity & Casualty Company of New York, a corporation, alleges:
“That at the general election held in Arkansas, in the year 1932, for the election of state and county officers for Arkansas, to serve for the term of two years, beginning’ January 1, 1933, and ending December 31, 1934, the said Lnla McAlister Gillum was elected to serve as treasurer of Columbia county, Arkansas; said Lula McAlister Gillum thereupon qualified as such county treasurer, took the oath of office prescribed by' law for such treasurer, and served as county treasurer of Columbia county; Arkansas, continuously for the term of two years, to-wit: Beginning January 1st, 1933, and ending December 3Í, 1934; and was the regular elected, qualified, commissioned and acting county treasurer in and for Columbia county, Arkansas, at the time of the commission of the acts complained herein.
’ “That the defendant, The Fidelity & Casualty Company of New York is, and was at all times mentioned hereinafter, a corporation, authorized to do, and doing business in the state of Arkansas.
“The said defendant, Lula McAlister Gillum as such county treasurer, duly executed her official bond, as treasurer on the 30th day of December, 1932, with the Fidelity & Casualty Company of New York, as her surety thereon, in the sum of $22,500 for the term aforesaid, that is, for the years of 1933 and 1934, and that said bond was duly examined and approved on December 30th, 1932, by Honorable Aubrey Rowe, as county judge, and was duly filed in the Columbia county circuit court, on the 6th day of January, 1933, and affirmed and was filed for record and recorded in Record Book 3, at page 155, of the records of Columbia county, Arkansas; that among other things it was provided in said bond that if the said treasurer, Lula McAlister Gillum, shall well, truly, and faithfully discharge and perform the duties of her office, and at the expiration of her term of office, shall render- unto her successor in office, a correct account of all sums of -money, books, goods, valuables and other property as it comes into her custody, as such treasurer of said Columbia county, Arkansas, and shall pay and deliver unto her successor in office or any other person authorized to receive the same, all balances, sums of money, books, goods, valuables and other property, which shall be in her hands and due by her, then the above obligation shall be null and void; else the same to remain in full force and virtue; that a copy of said bond is attached hereto, marked Exhibit ‘A’, and made a part of this complaint; that said Bond was in full force and effect and covered the period from January 1st, 1933, to December 31st, 1934, both dates inclusive.
“That for the years of 1930, 1931, 1932,. and 1933, a large number of claims were presented to the county court of Columbia county, Arkansas, for payment of obligations incurred by said county; that said claims were allowed by said Court and ordered paid. In-obedience to said order of allowance, the county clerk of Columbia county, Arkansas, drew, issued and delivered county warrants drawn upon the County General Fund in Columbia county, Arkansas, and for the fiscal year of 1930-1931, the said Court allowed claims and the county clerk thereof, issued warrants which were void for the reason that said order and warrants were made and issued, after the revenues of said county, chargeable to the County General Fund, had been exhausted, and said void warrants in the sum of $22.40, which were issued in the fiscal year of 1930-1931, were presented to the said Lula McAlister Gillum, as county treasurer, in the year of 1933, and was then and there paid, cashed and redeemed by her; that void warrants in the sum of 50c which were issued in the fiscal year of 1930'-1931, were paid, cashed and redeemed in the year of 1934, by the said Lula McAlister Gillum, as said treasurer; that the county court of Columbia county, Arkansas, for the year of 1931, allowed claims and the clerk thereof, issued warrants in excess of the revenues derived from all sources for that year, which were void, and the said Lula Mc-Alister Gillum, in the year 1933, paid, cashed and redeemed said void warrants issued in said year of 1931, in the sum of $915.19; that the said Lula McAlister Gil-lum, as said county treasurer in the year of 1934, paid, cashed, and redeemed void warrants, which were issued in 1931, that were void because they exceeded the revenues from all sources of that year, in the sum of $50; that the county court of Columbia county, Arkansas, allowed claims for the fiscal year of 1931-1932, and the county clerk thereof issued warrants in excess of the revenues of said county from all sources for that year; and the said Lula McAlister Gillum, as said, county treasurer, in 1933, paid, cashed and redeemed said void warrants issued in the fiscal year of 1931-1932, in the sum of $2,147.90, and in the year of 1934, the said Lula Mc-Alister Gillum, as county treasurer, paid, cashed and redeemed void warrants issued in the fiscal year of 1931-1932, in the sum of $133.45; that the county court of Columbia county, Arkansas, for the year of-1933, allowed claims against said county and the county clerk thereof issued warrants thereon in excess of the revenues from all sources for that year, which were void, and the said Lula McAlister Gillum paid, cashed and redeemed said void warrants in the year of 1933, that were issued in excess of the revenues of the fiscal year of 1933, in sum of $221.80, and the said Lula McAlister Gillum, as said treasurer of said county, in 1934, paid, cashed and redeemed said void warrants that were issued in excess of the revenues of the fiscal year of 1933, in the sum of $725.85; making a total of said void warrants paid, cashed and redeemed in the year of 1933, by the said Lula Mc-Alister Gillum, ás treasurer of said county, in the sum of $,3,307.37, and a total of said void warrants paid, cash-ed, and redeemed in the year of 1934, in the sum of $909.-80, and a sum total of void warrants during the year of 1933, and 1934, paid, cashed and redeemed by the said Lula McAlister Gillum, to the amount of $4,217.17.
“That it became and was the duty of the said Lula McAlister Gillum, as county treasurer, as aforesaid, to refuse to accept, pay, cash or redeem all void or invalid county warrants of the said Columbia county, Arkansas, which were presented to her as such county treasurer, either for redemption in cash or in payment of any debt, forfeiture penalty, tax or any other obligation due the said Columbia county, Arkansas; that, notwithstanding this duty, as aforesaid, of the said Lula McAlister Gillum, as such treasurer, she, as treasurer of Columbia county, Arkansas, did during the term of her office, 1933-1934, accept, pay, cash and redeem void warrants in the aforesaid sum of $4,217.17, said warrants being illegal, fraudu lent, invalid and absolutely void, and not a valid charge against the said Columbia county, Arkansas, and to the great damage and loss to said county in said amount; said warrants being illegal, fraudulent, invalid and absolutely void, for the reason that they exceeded the revenues of said county for the year in which they were issued.
“That this breach of duty as aforesaid,-by her, the said Lula McAlister Gillum, as Treasurer, constitutes and is a breach of the conditions of her official bond, as set out above to the great damage and loss of Columbia county, Arkansas, in the amount of $4,217.17.
“That on the 5th day of April, 1933, the said Lula McAlister Gillum, as county treasurer of Columbia county, Arkansas, filed her quarterly report for the first quarter of 1933, with the Columbia county court of Columbia county, Arkansas, which is a written report purporting to show the total sums of money on hand, received and disbursements made for said quarter. A copy of said report is attached hereto, marked Exhibit ‘B’, and made a part of this complaint.
“That on the 8th day of . July, 1933, the said Lula McAlister Gillum, as county treasurer of Columbia county, Arkansas, filed her quarterly report for the second quarter of 1933, with the Columbia county court for Columbia county, Arkansas, which is a written report purporting to show the total sums of money on hand, received and disbursements made for said quarter. A copy, of said report is attached hereto, marked Exhibit ‘ C ’, and made a part of this complaint.
“That on the 7th day of October, 1933, the said Lula McAlister Gillum, as county treasurer of Columbia county, Arkansas, filed her quarterly report for the third quarter of 1933, with the Columbia county court of Columbia county, Arkansas, which is a written report purporting to show the total sums of money on hand, received and disbursements made for said quarter. A copy of said report is attached hereto, marked Exhibit ‘D’, and made a part of this complaint.
“That on the 17th day of January, 1934, the said Lula McAlister Gillum, as county treasurer of Columbia county, Arkansas, filed her quarterly report for tlie fourth quarter of 1933, with the Columbia county court of Columbia county, Arkansas, which is a written report purporting to show the total sums of money received and disbursements made for said quarter. A copy of said report is attached hereto, marked Exhibit ‘E’, and made a part of this complaint.
“That on April 13th, 1934, the said Lula McAlister Gillum as county treasurer of Columbia county, Arkansas, filed her quarterly report for the first quarter of 1934, with the Columbia county court of Columbia county, Arkansas, which is a written report purporting to show the total sums of money on hand, received and disbursements made for said quarter. A copy of said report is attached hereto, marked Exhibit ‘F’, and made a part of this complaint.
“That on the 10th day of July, 1934, the said Lula McAlister Gillum, as county treasurer of Columbia county, Arkansas, filed her quarterly report for the second quarter of .1.934, with the Columbia county court of Columbia county, Arkansas, which is a written report purporting to show the total sums of money on hand, received and disbursements made for said quarter. A copy of said report is attached hereto, marked Exhibit ‘H’, and made a part of this complaint.
‘ ‘ That on the 3rd day of January, 1935, the said Lula McAlister Gillum, as county treasurer of Columbia county, Arkansas, filed her quarterly report for the fourth quarter of 1934, with the Columbia county court of Columbia county, Arkansas, which is a written report purporting to show the total sums of money on hand, received and disbursements made for said quarter. A copy of said report is attached hereto, marked Exhibit ‘I’, and made a part of this complaint.
“Plaintiff alleges that no final report was made by the defendant, Lula McAlister Gillum, at the expiration of her term of office, which ended December 31st, 1934, other than the quarterly reports filed, as stated herein; that said reports were not made under oath, as required by statute, in such cases made and provided, and in fact, did not set fortli the correct account of moneys received and disbursed, that the said defendant, Lnla McAlister G-illum, as such treasurer of Columbia county, Arkansas, was required to make, because in said reports, the said Lula McAlister Gillum attempts to take credit for the said void warrants herein above described, that she paid, cashed, and redeemed. That she is not entitled to credit on her settlements for the period of 1933-1934, in the sum of $4,217.17, which was for void warrants. That it was the duty of the said defendant, Lula McAlister Gil-lum, to pay over said sums to the officers entitled to receive the same, and that she had failed and refused to account for and to pay over to the officer entitled to receive the same, the said moneys paid out for void warrants in the amount of $4,217.17. That the plaintiff is entitled to interest on said amount at the rate of six per cent. (6 per cent.) per annum from January 1st, 1935, until paid.
“That the defendant, Lula McAlister Gillum, as county treasurer for the term of 1933-1934, failed and refused to account for and pay over to the officer entitled to receive the same, the further sum of $743.28, that said sum was received by her as county treasurer, and credited to the School Account of Columbia county, Arkansas, that in the quarterly reports described herein, the defendant failed and neglected to give a correct account of said school funds, and said reports do. not, in truth and in fact, set forth a true accounting" of said fund, that the plaintiff is entitled to interest on said amount of said $743.28, at the rate of six per cent. (6 per cent.) per annum, from January 1st, 1935, until paid, that this constitutes and is a further breach of the conditions of. her official bond, as set out above, to the further damage and loss of Columbia county, Arkansas, in the further amount of $743.28, making a total amount of damage and loss of Columbia county, Arkansas, due to a breach of duty, and of the conditions of her official bond, in the sum of $4,960.45.
“Wherefore, plaintiff prays that the account of the said Lula McAlister Gillum, as treasurer of Columbia county, Arkansas, for the years of 1933 and 1934, be by the court, surcharged for fraud, error, accident or mistake and restated, and that the plaintiff have judgment against the said defendants herein named, in the sum of $4,217.17, and the further sum of $743.28, making a total of $4,960.45, together with interest thereon at the rate of six per cent. (6%) per annum from January 1st, 1935, until paid, and for all costs herein, and for all other equitable relief, to which the plaintiff may be entitled. ’ ’
To this complaint appellant filed the following demurrer:
“1. This defendant offers to confess judgment in the sum of $743.28, which is the amount alleged that the defendant, Lula McAlister Gillum, failed to account for and pay over to the proper officer entitled to receive the same.
“2. For its first ground of demurrer to that portion of the complaint of the plaintiff wherein recovery in the sum of $4,217.17 is sought for the cashing of void warrants, this defendant states that the complaint fails to allege facts sufficient to constitute a cause of action, for the reason that a county treasurer should not be held liable, and is not liable for the act of cashing a warrant which was void because issued in contravention of Amendment No. 10 to the Constitution of the state of Arkansas.
“3. For its second ground of demurrer to that portion of the complaint wherein recovery for $4,217.17 is sought for the cashing of void warrants, this defendant states that the plaintiff’s alleged cause of action is barred as to all warrants which were cashed more than three years prior to the date upon which the summons in this case was issued, which was the 4th day-of September, 1937; that is to say, the alleged cause of action on any warrant cashed by the defendant, Lula McAlister Gillum, prior to September 4, 1934, is barred by the statute of limitations.
“4. For its third ground of demurrer to that portion of the complaint which seeks a recovery of $4,217.17 for the cashing of void warrants, this defendant states that this court has no jurisdiction over this subject-matter for the reason that this is not properly an instance of the right to surcharge the account of the defendant, Lula McAlister Gillum. The question of fraud, error, accident.or mistake in the said officer’s account is not here involved. The alleged wrongful act of the defendant, Lula McAlister Gillum, in the performance of her duties and her failure to refuse to cash the alleged void-warrants have nothing to do with her accounts or settlement.
“Wherefore, the defendant, The Fidelity & Casualty Company of New York, prays that the demurrer to the complaint heretofore filed be sustained, and that the plaintiff be required to announce whether the offer to confess judgment for $743.28 he accepted, and for -all other equitable relief.”
Appellant refused to accept the offer of $743.28 whereupon the court overruled the demurrer to the complaint and appellant, standing on its demurrer, refused to plead further and the court rendered judgment against appellant ‘for the entire amount sued for together with interest thereon, from which appellant, duly prosecuted an appeal to this court.
Mrs. Gillum made no appearance in the case. In filing its demurrer to the complaint appellant admitted that the warrants paid by the treasurer were issued in excess of the revenues for the several years alleged, and that said warrants were void under the doctrine of the case of State, use Jackson County v. Murphy, 192 Ark. 439, 92 S. W. 2d 205, but insists that that case should be overruled in view of the fact that this court in the decision of State, use Perry County v. House, 193 Ark. 282, 99 S. W. 2d 834, released the county judge and clerk from civil liability. It is argued that these cases are inconsistent, but there is no inconsistency between them. In the latter case the county judge was exempted from civil liability because he acted in a judicial capacity within his-jurisdiction, and released the clerk for the reason that he performed a clerical duty in issuing the warrant under the direction of the court. The latter case has no bearing upon the former case in which this court ruled that a duty rested upon the treasurer of a county to pay out the funds to the parties to whom they belonged and not upon void warrants. The gist of the former case was that a treasurer who had custody of' the county funds failed in the performance of his duty when he paid such funds, out on void warrants. We adhere to the ruling in the former case for the reason and on the grounds therein stated which we regard as sound for otherwise Amendment No. 10 would be no protection whatever against the unlawful payment of funds which belong to the county, school districts, etc., which had been intrusted to the custody of the treasurer. It would indeed be an anomalous situation if no one were-responsible for the payment of void warrants or void claims in violation of Amendment No. 10 to the Constitution of Arkansas.
Appellant also contends for a reversal of the judgment on the ground that the chancery court was without • jurisdiction to determine the issues joined. It will be observed that the allegations of the complaint are that the treasurer paid out the money on void warrants, and falsely obtained credits for the amount in her accounts current and final account and prayed that the accounts be falsified and surcharged so as to show the balance due llie county from the treasurer, aiid that the county have judgment for the amounts for which the treasurer falsely and fraudulently obtained credits. It also appears from the complaint that more than one year had expired after the final report of the treasurer so that it was not within the power of the county judge to make the correction. It is admitted in the demurrer that appellant was indebted under the provisions of its bond for $743.28 for which the treasurer had obtained false and fraudulent credits. These allegations admitted by the demurrer clearly and unmistakably state a cause of action in equity. This court ruled in the case of Yates v. State, use Miller County, 186 Ark. 749, 54 S. W. 2d 981, that chancery courts had jurisdiction to correct mistakes and fraud in settlements of county offices after the time had elapsed for the county court to make such corrections. It is true that" this court said in the case of State, use Jackson County v. Murphy, supra, that “The payment of void warrants was purelv a violation of his official duty and the bond promised that he would faithfully perform his duties,” and the unlawful expenditures might be recovered in the circuit court. In that case it did not appear that the treasurer had taken credits falsely and fraudulently for the amounts he had paid out on void warrants whereas in this case it is alleged that the treasurer not only paid void warrants, but that in her settlements she took credits for the amounts she had thus paid out on the void warrants. The prayer to falsify and surcharge her account brought the instant case within the jurisdiction of the chancery court. It is conceded that one of the duties imposed by the law and against a breach of which the county is protected by the idemnity bond was that the treasurer should pay over to the county or her successor in office all moneys collected and not properly expended in the faithful performance of her duties.-
Appellant’s last contention is that the judgment should be reversed because the alleged indebtedness is barred by the statute of limitations. It is argued that the three-year — and not the five-year — statute of limitations (Pope’s Digest, § § 8928 to 8938) applies, and that the statute began to run from the date of the treasurer’s last quarterly settlement, which, as stated above, was January 3, 1935.
We think the three-year — and not the five-year— statute of limitations is applicable to this suit. The Circuit Court of Appeals of this circuit had occasion to apply § 6960, C. & M. Digest (which is now § 8938,- Pope’s Digest) in the case of Futrall v. City of Pine Bluff, 87 Fed. 2d 711. That was a suit to recover a sum erroneously paid to the treasurer of the city of Pine Bluff.- The same statute would apply in cases of that character, whether the money had been paid to or had been paid by the treasurer, and it was there held that the three-year statute was the applicable statute. In so holding the court there said: “The meaning of these sections of the statutes of Arkansas must be determined from the decisions of the Supreme Court of that state. An analysis of such decisions as throw light upon the question here involved has convinced us that an action to recover money paid or obtained through an honest mistake of fact or law, in tlie absence of fraud, corruption, or wilful diversion, is an action founded upon an implied contract or liability, not in writing, and must be commenced within three years. Richardson v. Bales, 66 Ark. 452, 51 S. W. 321; Clarke v. School District No. 16 et al., 84 Ark. 516, 106 S. W. 677; Board of Education of Ouachita County et al. v. Morgan et al., 182 Ark. 1110, 34 S. W. 2d 1063, See, also, Tedford Auto Co. v. Chicago, R. I. & Pac. Ry. Co., 116 Ark. 198, 172 S. W. 1006; England v. Hughes et al., 141 Ark. 235, 217 S. W. 13; Clements v. Citizens’ Bank of Booneville, 177 Ark. 1085, 9 S. W. 2d 569; Cherry v. Falvey, 188 Ark. 827, 68 S. W. 2d 98. And compare, Sims v. Craig, County Treasurer et al., 171 Ark. 492, 286 S. W. 867; Core et al. v. McWilliams Co., Inc., 175 Ark. 112, 298 S. W. 879.”
In this case, as in that, the money sought to be recovered had been paid or obtained through an honest mistake of law or fact, and there was an absence of fraud, corruption, or wilful diversion.
We are, of course, not bound by this decision, but it must be remembered that the Court of Appeals was not attempting an original construction of this statute. The court was assuming to follow our construction of this statute in the cases there cited, and we think those cases support the conclusion that in actions of this character the statute of limitations is three years, and not five years. ■ The fact that the treasurer is liable on his bond for this erroneous payment of invalid warrants does not alter the nature of the liability; which may be ascertained and recovered upon in a single suit.
We are of the opinion also that the statute of limitations commenced to run from the date of the respective settlements. The erroneous payment of an invalid warrant is the basis of the cause of action. It is this payment of an invalid warrant which constitutes the conversion of the money with which it was paid, and this conversion is consummated when the treasurer reports its payment and asks credit therefor in the settlement. When this was done a cause of action arose for the amount of money so wrongfully paid out.
Section 2435, Pope’s Digest, provides that the treasurer shall annually on the first Monday in July, “and oftener, if so required,” make a full and complete settlement with the county court of all funds and moneys that have come into his hands as such treasurer, and at such settlement it is made the duty of the county court to make actual count of the money appearing by such settlement to be in the treasurer’s hands.
Section 2438, Pope’s Digest, requires the treasurer to keep a register of warrants similar to the one required to be kept by the clerk, “to which the time when paid shall be added in a separate column,” and by § 2439 the treasurer is required to file “a copy of his register of warrants paid.”
By § 2440, Pope’s Digest, the treasurer is required, at his annual settlement with the county court, to produce all the warrants redeemed by him during the preceding year, and the presiding* judge is required to write the word “Redeemed” across the face of each warrant and sign his name thereto, and to cause all warrants thus redeemed to be filed in the office of the clerk of the county court. If quarterly settlements had been required, as they may be, the same procedure would be followed in regard to warrants for the payment of which the treasurer asked credit in the settlement. But if quarterly settlements were not required, and had not been made, then the statute would run from the date of the annual settlement in which the payment of the various warrants was reported. Here, the treasurer made quarterly settlements, which if, in fact, were settlements, showed the warrants paid during the quarter or period of time covered by the settlement. So that, in any event, the statute of limitations began to run when the treasurer sought credit for the amount of the invalid warrants which had been improperly redeemed.
This holding comports with the view upon which the recent case of McCoy v. State, use of Greene County, 190 Ark. 297, 79 S. W. 2d 94, was decided. In that case the county treasurer and the sureties upon his official bond were sued for fees and emoluments of office in ex cess of $5,000 per annum retained 'by the treasurer for the years 1929 and 1930, the term of his.office. During this term the treasurer expended various sums of money in connection with the administration of his office, for which he claimed credit when sued for the excess over $5,000 which he had retained. He had previously made no report of these expenditures for which he claimed credit in the suit against himself and the sureties on his bond. We there said: “The statute could not, and did not, begin to run from the dates upon which he should have filed the settlements. It was not known that he would make, or had made, any improper charges until settlements were filed. If the three-year statute be applicable, it must be computed from the date of the filing of the August settlement in 1930.- The three years did not expire until August of 1933. The claim, therefore, was not barred by the statute of limitations of three years. ’ ’
It does not sufficiently appear, from the record before us, on what date the treasurer, in her reports, took credit for warrants improperly paid, but as to some, at least, of these warrants more than three years had elapsed before the filing of this suit. The cause of action Avas barred as to invalid warrants shown by any settlement to have been paid more than three years prior to August 27, 1937, the date on which the suit Avas filed.
The decree Avill, therefore, be reversed, and the cause remanded, Avith directions to ascertain these facts and to enter a decree in accordance with that finding. | [
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George Howard, Jr., Judge.
The central issue tendered for determination is whether the trial court committed error in denying appellant’s claim to a commission purportedly earned as a consequence of producing a buyer who was ready, willing and able to purchase real estate from appellee pursuant to an agreement between the parties.
The pertinent facts are: Sometime during July, 1976, Robert Chowning, Executive Vice President of Rector-Phillips-Morse, Inc., hereinafter called Rector, Inc., was advised that Sidney Weniger was interested in buying the Riviera Apartments which are located on Old Cantrell Road in Little Rock. The apartments were purchased by Harold Huntsman and his wife in 1973 from Rector-Phillips-Morse Realty Fund, a limited partnership and a subsidiary of Rector, Inc., hereinafter referred to as Realty Fund; and Huntsman later conveyed the property to Huntsman’s Farm, Inc. A third mortgage was executed, on the apartments, by Huntsman in favor of Realty Fund to secure a note for $584,000.00 which was to mature on September 15, 1976.
On August 4, 1976, Andy Agar, a representative of Rector, Inc., confirmed Mr. Chowning’s telephonic conversation with Mr. Huntsman by letter and the communication further stated: “Should a sale be made by you to Mr. Weniger, we feel you should not enter into direct negotia tions with Mr. Weniger without our being involved. In any event, and should you sell the property to Mr. Weniger, this is to advise you that we will consider ourselves entitled to commission of 6% of the total sales price.”
On September 16, 1976, Mr. Huntsman and Mr. Weniger entered into an offer and acceptance agreement which provided,, among other things: (1) The total sales price would be the outstanding principal balance due on mortgages involving the apartment, plus $150,000.00 cash to the seller, and (2) the agreement is subject to a special condition on Weniger closing a satisfactory mortgage loan to be obtained from First Federal Savings & Loan Association of Pine Bluff, Arkansas. Finalization of the transaction was scheduled for October 31, 1976. The offer and acceptance agreement also specified that “Seller agrees to pay Rector-Phillips-Morse, Inc., agent, a commission pursuant to the agreement between them.” While the offer and acceptance agreement was executed on a printed form of Rector, Inc., the agreement was executed by Mr. Weniger and Mr. Huntsman and no one from Rector, Inc. was present during the execution of the agreement.
A rider, dated the same date as the offer and acceptance agreement, was executed, by Huntsman and Weniger, and attached to the agreement. The rider, in material part, provides:
1. On or before December 31, 1976, if title has been acquired by Buyer to the Riviera Apartments, the Seller shall have the option upon 15 days notice to re-purchase said property by assuming any new mortgage financing arranged by the Buyer. (If satisfactory to lending institution) and any existing mortgages, which Buyer may have assumed at time of title, plus the payment to the Buyer of the following.
3. In addition, Seller shall pay to Buyer, the sum of $45,000.00 plus a sum equal to one percent of the amount of new financing arranged by Buyer.
If said new mortgage financing does not exceed nine (9) percent interest, Seller shall pay Buyer an additional sum of one (1) percent of said mortgage.
If said new mortgage financing is more than a 25 year term, Buyer shall pay Seller an additional sum of one (1) percent of the mortgage.
4. It is the express interest of this option agreement, that if exercised by the Seller, the Buyer shall be reimbursed for any and all out-of-pocket costs incurred by Buyer (or nominee) in connection with or on behalf of the purchase, financing, and closing of title to the Riviera, its operation from date of title to date of repurchase, plus the sums referred to in paragraph 3 above.
On September 24, 1976, an addendum to the agreement was executed by Weniger and Huntsman which provides in relevant part:
1) As an alternative to assuming the new mortgage as set forth in paragraph 1 of the Rider, seller may pay the same in full, including any prepayment penalties.
3) In the event seller pays the mortgage held by RPM Realty Fund in full prior to closing date of this transaction and pays to buyer the sum of $45,000 plus all costs and expenses incurred on account of this transaction (including legal fees, appraisal fees, mortgage application fees, etc.) buyer agrees to void the offer and acceptance and Rider dated September 16, 1976 and to release seller from all obligations thereunder.
Mr. Weniger testified that he had made arrangements with First Federal Savings & Loan Association of Pine Bluff, Arkansas, for financing the purchase of the apartments, but when First Federal became aware of the stipulation in the offer and acceptance agreement that Huntsman had the option of repurchasing the property and assuming the mortgage, First Federal refused to agree to the stipulation. Moreover, First Federal stated that it did not want Huntsman as a mortgagor under any circumstances. Consequently, Weniger’s arrangements with First Federal for financing the purchase of Huntsman’s apartments did not materialize.
On or about October 28, 1976, Huntsman deeded the apartments to Graceland College, an Illinois Institution sponsored by the Church of Jesus Christ of Latter Day Saints; and on October 31,1976, Graceland College paid off the third mortgage held by Realty Fund. In November, Weniger filed his specific performance action against. Huntsman and Graceland College. Rector, Inc. intervened in the action seeking to recover a commission of $75,000.00.
The trial court found that while Rector, Inc. was not afforded a general listing, Huntsman did agree to pay Rector, Inc. a commission, providing the apartments were sold to Sidnéy Weniger. The trial judge concluded the property was not sold to Weniger, therefore, Rector, Inc. did not produce a ready, willing and able buyer for the property. Consequently, the trial court dismissed appellant’s complaint with prejudice.
Appellant’s argument for-reversal may be summarized as: That appellant has established, by a preponderance of the evidence, that Weniger and Huntsman were brought together by appellant; that this meeting culminated in an agreement acceptable to the seller, Huntsman. Hence, appellant earned its commission effective September 16, 1976, the date offer and acceptance agreement was executed; and that the ultimate outcome of the transaction cannot vitiate Rector, Inc.’s entitlement to the commission.
First, it is fitting that we set out the scope and range of our responsibility as an appellate court in reviewing a pro ceeding on appeal from a chancery court. Admittedly, such proceeding is tried de novo. However, it is clear that an appellate court will affirm the action of the trial court when that court’s action is supported by a preponderance of the evidence. Alley v. Martin, 250 Ark. 74, 464 S.W. 2d 591 (1971); Summers v. Hook, 243 Ark. 368, 419 S.W. 2d 810 (1977). Moreover, where credibility as between interested parties in an action is pivotal, the appellate court’s practice is to abide by the chancellor’s judgment in the matter. Souter v. Witt, 87 Ark. 593, 113 S.W. 800 (1908).
Turning now to the issue to be resolved, we are persuaded that the universal rule provides that a broker is entitled to his commission when he produces a purchaser who is able, ready and willing to buy the property at a price and on terms designated by the seller, although no sale is made. However, this general rule is subject to exceptions. An exception, for example is where the agreement designates the person to whom the sale is to be made. 12 C.J.S., Brokers, Section 85, page 187.
In El Dorado Real Estate v. Garrett, 240 Ark. 483, 400 S.W. 2d 497 (1966), the Arkansas Supreme Court observed that one thread that seems to be woven in cases rendered by the Court between 1908 and 1963 relative to a broker’s commission involving real estate — where a purchaser has been produced who is ready, willing and able to purchase the lands — it is not necessary that an enforceable contract be executed before the broker is entitled to his commission, unless the agreement between the seller and broker calls for an actual sale of the property.
In Sarna v. Fairweather, 248 Ark. 742, 453 S.W. 2d 715 (1970), the Supreme Court again re-emphasized that a broker earns his commission by producing a buyer ready, willing and able to take the property on the seller’s terms, even if the contract were unenforceable, unless the agreement between the seller and agent required that the sale be actually consummated.
Appellant’s letter of August 4, 1976, to Mr. Huntsman, which puts Huntsman on notice that appellant expected a commission for its services provides:
Should a sale be made by you to Mr. Weniger, we feel you should not enter into direct negotiation without our being involved. In any event, and should you sell the property to Mr. Weniger, this is to advise you that we will consider ourselves entitled to a commission of 6% of the total sales price.
Andy Agar, a representative of appellant, testified that the agreement was that his company would be entitled to a commission if a deal were made with Mr. Weniger.
Mrs. Patsy Akers and George Sisco, who were called as witnesses by appellant, testified that they had heard a conversation between Agar and Huntsman to the effect that appellant would receive a commission if a sale were made with Weniger. On the other hand, Huntsman denies that he agreed to pay a commission to appellant under any circumstances. The trial court, however, concluded that Huntsman did agree to pay a commission only if the property were sold to Weniger.
Appellant argues that Weniger never had an opportunity to consummate the sale inasmuch as Huntsman declared the agreement terminated by virtue of deeding the property to Graceland College. In other words, the failure on the part of Weniger to make a sale was due to the fault of Huntsman. Moreover, appellant argues that Huntsman may not shield himself or take refuge in the circumstances surrounding the failure of Weniger to obtain financing for the purchase of the property through First Federal Savings & Loan Association of Pine Bluff, Arkansas, inasmuch as it was never the obligation or responsiblity of Weniger to obtain a loan from any source; that Weniger had no obligation to arrange financing until expiration of Huntsman’s right to terminate the agreement by paying off the third mortgage; that the “sole and only reason for the transaction not closing was the precipitous conduct of Huntsman.”
On the other hand, Huntsman argues that the special condition contained in the offer and acceptance with refer ence to Weniger’s closing a satisfactory mortgage loan from First Federal Savings & Loan Association of Pine Bluff, Arkansas, was not a condition tied to financing in general, but to a mortgage loan from a specific lending institution and this becomes most relevant and material to Huntsman when reference is made to paragraph 1 of the first rider which specifies that “ On or before December 31, 1976, if title had been acquired by buyer to Riviera Apartments, the seller shall have the option upon 15 days notice to repurchase said property by assuming any new mortgage financing arranged by the buyer.” By virtue of the rider, argues Huntsman, he had a vested right to assume the loan from First Federal Savings & Loan Association of Pine Bluff which Weniger intended to place on the apartments; and that this was vital to him because he was negotiating with Weniger for refinance money for the apartments.
It is clear from the record that prior to and during Huntsman’s negotiation with Weniger, Huntsman was having financial problems and was faced with the maturity of a note due Realty Fund and which was secured by a third mortgage on the apartments.
Weniger could not acquire the financing from First Federal Savings & Loan Associatin of Pine Bluff since First Federal refused to permit Huntsman to assume the loan.
Given these circumstances, we are persuaded that Weniger’s offer was a conditional one and, indeed, it seems clear until this condition was met, Huntsman had no duty to sell, nor Weniger a duty to purchase.
While the trial judge indulged, to a degree, in some mental exercise as to whether the condition relating to financing from First Federal could be waived by Weniger, the judge did not predicate his decision, in any way, on waiver, but concluded:
... I do not believe that the mere filing of the Specific Performance suit, and its allegation of'ready, willing and able’ to perform is, standing alone, sufficient to consitute either a waiver or establish financial ability to perfect the purchase. Further, I cannot conclude that the mere fact that Mr. Weniger ‘owns’ other properties in the Little Rock area is sufficient to establish his financial ability.
In other words, the evidence was insufficient to find a waiver of the condition, or that Weniger was financially able to consummate the sale in absence of the funds to be derived from the loan.
We are also persuaded that the contract between Weniger and Huntsman constituted the offer and acceptance, the first and second riders. As a matter of fact, both Huntsman and Weniger testified that the three documents represented the agreement between them and that the second rider (addendum) was executed to simply clarify the terms of the transaction as contained in the offer and acceptance and the first rider.
Under paragraph 3 of the second rider. Huntsman had the right to pay off the mortgage held by Realty Fund and to pay Weniger $45,000.00 plus all cost and expenses incurred; and Weniger agreed to void the offer and acceptance agreement and to release the seller from all obligations. In selling the property to Graceland College, Huntsman exercised this option.
After carefully considering the record, we are unable to say that the trial court’s holding is not supported by a preponderance of the evidence.
Affirmed.
Hays, J., dissents.
M. Steele Hays, Judge.
I earnestly disagree with the affirmance of this case. True, there was no written listing agreement between the owner and the broker, but a careful reading of the record convinces me that the owner (having indicated his willingness to the broker to sell “if the price is right”) permitted the broker to bring him into contact with a prospective buyer and rather promptly thereafter entered into a written offer and acceptance agreement with the buyer which included a provision plainly recognizing the broker’s right to a commission. Under the holding in numerous decisions of the Supreme Court of this state, a broker has earned his commission when the seller accepts the buyer’s offer. Moore v. Irwin, 89 Ark. 289 (1909); Wales-Riggs Plantations v. Pumphrey, 141 Ark. 565 (1920). The seller argues that this case is distinguishable from those decisions holding that the commission is earned when the broker produces a buyer ready, willing and able for the reason that here the terms of the verbal listing carried the special provision that a sale be actually consummated. This argument might be persuasive but for the fact that it was the seller, rather than the buyer, who aborted the closing. Emerson v. Stout Farm Agency, 161 Ark. 378 (1924); Chambers v. Ester, 159 Ark. 250 (1923).
I would reverse.
Rector, Inc. managed the apartments for Mr. Huntsman under a five year contract.
Rider 2 (addendum) was executed by Huntsman and Weniger purportedly on September 24, 1976, after Huntsman had consulted his attorney with reference to the offer and acceptance agreement and Rider 1. Huntsman was told by his attorney that “there were some things left out.” Weniger was consulted and Rider 2 was executed. | [
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Darrell Hickman, Justice.
Ardía V. McCree was tried in the Ouachita County Circuit Court for cápital felony murder; he was convicted and sentenced to life imprisonment without parole.
On appeal he alleges five errors which we find on review to be without merit.
The evidence against McCree was mostly circumstantial, no witness was produced who saw McCree kill Evelyn Boughton, the victim.
The crime occurred shortly after 8:00 a.m., February 14, 1978, at the La Tienda Gift Shop and Service Station in Camden, Arkansas, which Mrs. Boughton owned. McCree made a statement to the police which was video-taped and shown to the jury. McCree’s version of the incident, as realted on the tape, was that he left home early that morning with the intention of talking to his mother-in-law. He was driving his white and maroon colored Lincoln Continental. He had taken his Winchester 30.30 caliber rifle with him and laid it in the back seat of his car. He explained he was having trouble with his wife and felt he needed protection.
He drove up to the La Tienda Service Station and put $2.00 worth of gasoline in the car. While he was there a tall black man wearing an overcoat walked up to him and asked him for a ride. He described the man, who was a stranger to him, as having a bumpy face, with a long scar. He agreed to give the man a ride and went in to pay for the gasoline. As he did, the other man walked in with the rifle and said, “Hold it.” Mrs. Boughton reached out, or made a move, and he shot her. The other man got a bank bag off a counter, turned the gun on McCree and said, “Let’s go.”
They got in the car and the other man drove, holding the rifle on McCree. They left Camden at a high rate of speed, going north on Highway 7. After they left town they turned off Highway 7 onto a dirt road. As they were going down the road they met a log truck going toward Highway 7. Less than a mile down the dirt road the other man stopped the car in the middle of the road, took the gun and bank bag with him and told McCree to turn around, leave and say nothing. McCree said he last saw the man walking down the road.
McCree said he drove back to Highway 7 and headed north. He passed the same log truck at the intersection with Highway 7, or just after he turned onto Highway 7. After he had traveled a short distance he passed the Camden Chief of Police who was headed in the other direction. The Chief turned around and followed him and at a road block the Chief asked him to get out of the car, searched him and asked for his driver’s license. After several questions, McCree was released. McCree indicated he was headed in the other direction. The Chief turned around and followed him and at a road block the Chief asked him to get out of the car, searched him and asked for his driver’s license. After several questions, McCree was released. McCree indicated he was going to Hot Springs. McCree said he was scared and confused and did not know what to do when he was stopped. He went to the races in Hot Springs and then decided to go to his brother’s house in Little Rock. He was arrested in Hot Springs. He explained that the money he had on him at the time he was arrested, which was over $200.00, was mostly money that he had borrowed from two other people.
C. C. Blackstock, who runs a fish market across the street from the service station, said that he heard a shot that morning and saw a black male come out of the service station with a gun which appeared to be a rifle or a small gauge shotgun. He saw the man get into a car which he described as maroon, or reddish rust, with a white top. After the vehicle left he ran across the street, found Mrs. Boughton shot and called the police department.
The police arrived shortly thereafter, and, after talking to Mr. Blackstock, put out a call on the radio to stop a brown Mercury with a white top.
The Camden Chief of Police testified that he received that radio message and was searching for that vehicle when McCree was stopped north of Camden. Later that morning the description of the vehicle was changed to a maroon and white Lincoln Continental and, based on that information, the Chief called the Arkansas State Police in Hot Springs and asked that they find and arrest McCree.
Ann Mitchell testified that she was on her way to work that morning and drove past the La Tienda Service Station. As she was approaching the station she noticed a car pulling out at a high rate of speed. She described it as a white over burgundy Continental driven by one black male. She did not think anyone else was in the vehicle.
The log truck driver testified that he was passed on the dirt road in question that morning by a brown or maroon Mercury or Lincoln driven by a black male. He said he watched the vehicle in his rear-view mirror, saw the man drive down the road, stop, get out, get back in, turn around and follow the truck back to Highway 7. He did not see anyone else in the vehicle.
An F.B.I. officer testified that in his opinion the bullet which killed Mrs. Boughton came from McCree’s rifle. The daughter of Mrs. Boughton identified the bank bag as belonging to Mrs. Boughton; she identified her mother’s signature on several checks.
About two days after this crime the gun and the bank bag were found about twenty steps off the Tate’s Bluff Road, which is the dirt road the log truck driver used the morning of the 14th of February. The items were found less than a mile down the road from Highway 7.
The defense called as a witness, James C. Bevill, who had signed a statement for the police. It said that he had passed the service station that morning and saw McCree leaving the station. He saw no gun or object in McCree’s hands. He said he saw another man sitting in the passenger side of McCree’s vehicle.
Bevill had changed his story by the time of the trial. He had signed another statement shortly before the trial in which he indicated that he had misunderstood the police. He thought they had asked him if he knew a black man with a scar and he said, “Yes.” He told them he knew a man by the name of Joe Brewer who had a scar. Brewer was later brought in and Bevill said that was not the man he saw. He said he never intended to say that he saw anyone with McCree at the station on that date. Bevill admitted that he did sign the first statement with the police. The police officers in question verified that he did make that statement and in their judgment understood what he was saying.
The defense revealed that since his last statement Bevill had been punished by the Camden Municipal Court for DWI. He admitted that he had told McCree’s lawyer he was bitter about it because he thought he was a friend of the police.
McCree alleges five errors on appeal.
First, he argues that the jury was improperly qualified. McCree argues that certain jurors were excluded who may have had general objections to the death penalty but would not automatically vote against it.
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the United States Supreme Court held it was reversible error for a trial court to exclude for cause a venireman who simply had scruples against capital punishment. Justice Stewart, for the majority, stated:
Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.
The jury in this case was qualified for the death penalty. That is, the State was seeking the death penalty and made an effort to obtain a jury that would consist of those individuals who could in good conscience sentence a person to death if the case warranted it. The State sought to exclude those veniremen who said they would automatically vote against the death penalty under any circumstances.
As an example of improper exclusions, McCree uses the voir dire of Juror Douglas. At first, Douglas, in response to the State’s questions, said:
Prosecuting Attorney: You’ve heard the question the Court asked you earlier and I’ll try to recite it as best I can, and not embellish on it a lot, and get right to the point of it, as to whether or not if you’re selected as a juror, you would refuse or, for some reason of your own under any circumstances to impose the penalty of death.. . .Okay. Mr. Douglas?
Juror Douglas: You said it depend on — on death you say? I couldn’t.
Prosecuting Attorney: You just would not?
Juror Douglas: No.
Prosecuting Attorney: Under any circumstances?
Juror Douglas: Under any circumstances ....
The attorney for McCree then questioned Douglas:
Defense Attorney: Yes, sir Mr. Douglas, are you saying that your mind would be completely closed before you went into the jury box, that you under no circumstances — no matter what the situation — proved, and no matter what the Court instructed you the law was, that you already made up your mind that you could not even consider it? It doesn’t say that you — could you consider it, it doesn’t say committing yourself to both points in advance. Would you consider it?
Juror Douglas: Yes, I could consider it at that point. It’s just like I said, I couldn’t sentence a man to death.
Defense Attorney: I’m sorry. I can’t hear you.
Juror Douglas: I say I could consider it, but as far as me sentencing a man — as far as — whatever you call it — I couldn’t do it. It’s just against my will.
Defense Attorney: But you could consider it?
Juror Douglas: Yes. I could consider it . . .
Defense Attorney: Your answer to the question as to whether or not you could consider the death penalty, and you say, “Yes, I could consider it.” I’m saying that nobody is trying to get you to commit yourself to vote for it or not vote for it. Do I understand that you have strong feelings against it? But my question to you is that in answering it to the extent that you said you could consider it, could you consider the question sufficiently to make up your mind at the point of conclusion where all the facts and evidence, where then the Court had instructed you of the law before you decided which way you would vote?
Juror Douglas: Yes. I could do that.
Defense Attorney: Pass him back.
The court, not being satisfied, asked questions and solicited the following answers from Juror Douglas:
The Court: Now I’ve got — Mr. Douglas, let me just clear up the point. Just answer this question. Let me see if I understand you. Would you automatically refuse under any circumstances to vote to impose the death penalty?
Juror Douglas: Would I hold it against you?
The Court: Would you automatically refuse under any circumstances to vote to impose the death penalty, to vote for the death penalty?
Juror Douglas: Say would I?
The Court: Yes.
Juror Douglas: No, I wouldn’t.
The Court: I’m not sure you — no, you wouldn’t what?
Juror Douglas: I don’t guess I got your question then.
The Court: I probably got it turned around.
Juror Douglas: Break it a little smaller where I can understand it.
The Court: Would you ever at any time if you were selected to serve on a jury, vote to have any defendant electrocuted?
Juror Douglas: Would I ever?
The Court: Vote to have one put to death?
Juror Douglas: No, I wouldn’t.
The Court: You’d never vote to do that?
Juror Douglas: No, I wouldn’t.
The Court: Under any circumstances?
Juror Douglas: No.
The Court: All right. I’m going to excuse Mr. Douglas.
We feel the trial judge properly excluded Douglas, and other jurors who made similar answers to similar questions. There is no doubt that the record reflects that when the prospective jurors were asked by the court whether they could impose the death penalty, their unequivocal answer was no; under no circumstances could they do it.
The record reflects that the trial judge was careful, fairly taking no chances of a misunderstanding. We find no evidence that any juror in this case was improperly qualified as argued by McCree.
McCree next argues that there was insufficient evidence to sustain the finding of guilty in this case. There are three well settled rules which govern our review of the verdict in this case. We consider only evidence that is most favorable to the appellee, which is the State in this case. Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). The jury’s finding of guilt will be upheld if there is any substantial evidence to support it. Id. It is not the function of an appellate court to weigh evidence or judge the credibility of witnesses; that is the function of the jury. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). There is an abundance of evidence that McCree was at the service station at the time in question. In fact, in his statement he admitted he was there; admitted his gun was used to kill Mrs. Boughton. His defense was that he didn’t do it, that some unknown person did it. It was the province of the jury to accept or reject that argument and they decided to reject it. Several witnesses testified they saw only one black male.
McCree was charged with capital felony murder in that Mrs. Boughton was killed in the course of and in furtherance of a robbery. It is not necessary in Arkansas, under the present law, to actually prove that a robbery occurred. Jarrett v. State, 265 Ark. 662, 580 S.W. 2d 460 (1979). Under Arkansas law, Ark. Stat. Ann. §41-2103, robbery includes attempted robbery. In this case the State did not actually prove beyond a reasonable doubt by direct evidence that money was taken from La Tienda Service Station and that McCree took it. However, it was proved that a bank bag, containing several checks, the property of Evelyn Boughton, was taken. The jury could have concluded that McCree shot Mrs. Boughton and took that bank bag. This would satisfy the Arkansas law that a capital felony murder was committed in the course of or in furtherance of a robbery.
The defense was able to thoroughly search the memory and credibility of the witness Bevill who changed his story. It was for the jury to decide whether he was telling the truth on either occasion and the weight to be given to that testimony.
The third assignment of error is that the trial court abused its discretion by refusing to grant McCree’s attorney a continuance. Although the State offered no objection to the continuance, the judge denied the motion. A trial judge has a duty to promptly dispose of cases. All we have before us is the motion, an affidavit attached to it, and the ruling of the court. Essentially, the argument is that more time should have been given so that the counsel for McCree could better prepare for the trial and locate other witnesses who would assist McCree in his defense.
This case is not like Powell v. Alabama, 287 U.S. 45 (1932), on which the appellant relies, where the defendants were arrested on March 25th, indicted and arraigned on March 31st and tried on April 6th. This trial began May 8, 1978, some two and a half months after McCree had been arraigned. McCree stated at his arraignment on February 22, 1978, that he had retained his present counsel. The fact that counsel was from Little Rock and had to travel to Camden is not, alone, sufficient reason to find that the court abused its discretion in denying the continuance. Also, the motion and affidavit did not specifically name any witness, but indicated there were “possible witnesses” that could be located. The general rule regarding continuances is stated in Rule 27.3, Rules of Criminal Procedure.
The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.
In order to show that the trial judge was wrong it must be proved that there was a clear abuse of discretion and that the ruling of the court prejudiced the defendant. Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). There is no record of a hearing on the motion for continuance and, based on the bare motion and affidavit that were filed in this case, we cannot say that the court abused its discretion.
The fourth allegation of error is that the Arkansas system which permits a prosecuting attorney to file an information directly in circuit court is unconstitutional. The appellant McCree has been unable to demonstrate in this case any prejudice that would require us to dismiss the charges against him. We have held the Arkansas system constitutional for many years. Penton v. State, 194 Ark. 503, 109 S.W.2d 131 (1937); Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976). Our Rules of Criminal Procedure require that an arrested person who is not released shall be taken before a judicial officer without unnecessary delay. Rule 8.1, Arkansas Rules of Criminal Procedure. McCree was arraigned eight days after the crime, at which time the charges, penalty and his constitutional rights were explained. McCree announced he had retained counsel. The simple fact that a prosecuting attorney can file an information directly against an individual without a pre-trial hearing, such as a grand jury, is not in our judgment an unconstitutional practice. In this case we find no circumstances or facts that would suggest that we should retreat from our decisions, or that the decisions of the United States Supreme Court require dismissal of the charges. See Gerstein v. Pugh, 420 U.S. 103 (1975). McCree’s attorney makes a strong plea in good faith that the Arkansas system ought to be overturned. We will adhere to our previous decisions.
McCree’s last allegation is a little difficult to follow. He argues that the State cannot place on him, as a defendant, the burden of proving that a capital punishment statute is unconstitutional; that the fundamental right to be free from cruel and unusual punishment cannot be burdened by the legislature unless the State shows that the legislation serves a compelling state interest. We have upheld Arkansas ’ statutes on capital punishment and adhere to that precedent. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Furthermore, a defendant who is sentenced to life without parole lacks standing to challenge the death penalty. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). McCree argues that life without parole is cruel and unusual punishment. We rejected that argument in Dyas v. State, supra.
We have examined the record for all possible legal errors, as is our practice in such cases, and, finding none, affirm the judgment.
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J. Fred Jones, Justice.
Lonnie Maze filed a damage suit in the Madison County Circuit Court against L. R. and Gene Hudgins, d/b/a L. R. Hudgins and Sons, for personal injuries sustained by Maze when his hand was injured between a Y belt and pulley on an electric motor while he was ¡employed by Hudgins. A jury trial resulted in a judgment for Maze in the amount of $5,-000 and Hudgins has appealed.
Appellants are engaged in the egg producing business and operate several large laying houses. In three of the houses electric motors are used to operate fans, egg belts, feed conveyors and scrapers which are used to remove litter from the floors. All electric motors used in the laying houses are equipped with guards over the belts and pulleys except those motors which run the fans and the ones which operate the scrapers. Appellee Maze worked in one of these houses and as a part of his duties he cleaned litter from the laying house floor by use of electrically operated scrapers.
Each electric motor operates two scrapers attached to a single cable. The cable is wound into five grooves on the surface of two adjacent and horizontal steel drums or cylinders, referred to as a “winch.” The winch is turned either direction by a reversible ¡electric motor with a two-way or reversible switch located three or four feet, above the winch and motor. The power from the electric motor is transmitted to the winch through a Y belt and pulleys attached to the motor and to the gears on the winch. As one scraper is being loaded the other one returns empty and the process is reversed by reversing the motor and the direction the cable travels around the winch.
Ln the usual operation a loaded scraper would occasionally hang on something or stick to the floor, and when it would break loose in the course of operation, the sudden excess slack in the cable would cause the cable to jump out of its groove on the winch drum and it would become necessary to stop the motor, pry the cable to the cylindrical surface of the winch drum and wind the cable back into its groove on the drum by manually pulling the V belt between the motor and winch, thus turning the pulleys as -well as the motor and winch. The appellee was engaged in this operation when he was injured.
On the day of the injury Clarence Harshfield was working in the laying house with the appellee. Harsh-field was first employed by appellants to gather up eggs in baskets, but lie had b.een assigned to cleaning the laying house on the day appellee was injured. In operating the scraper equipment, Harshfield caused a cable to come off the winch and he sought appellee’s assistance in replacing the cable. The appellee pried the cable partially back onto the winch with a screwdriver and directed Harshfield to hold the screwdriver under the (-able while appellee turned the pulleys and belt. Appellee told Harshfield not to touch the switch to the motor, but while, the appellee was in the process of turning the belt and pulleys, Harshfield turned the switch and started the motor. Appellee’s right hand was caught between the belt and a pulley, thereby amputating a part of one finger and severely injuring another.
In Ms complaint the appellee alleged unsafe working conditions consisting of unguarded belts and pulleys on electric motors and also the hiring and retention of an incompetent fellow-servant, or co-employee, in the person of Harslifield, as proximate causes of appellee’s injury. The appellants answered by general denial and they affirmatively pleaded contributory negligence and assumption of risk. The appellants have designated the following points upon which they rely for reversal:
“The trial court erred in refusing to instruct the jury to return a verdict for defendants on the issue of lack of proper guards on the machine and on the issue of plaintiff’s assumption of risk of dangers because of the lack of guards.
The trial court erred in refusing to instruct the jury to return a verdict for defendants on the issue of the incompetency of Clarence Harslifield and on the issue that defendants did not know that Harsh-field was an incompetent employee, if, in fact incompetent.
The trial court erred in refusing to instruct the jury to return a verdict for the defendants on the issue that plaintiff assumed the risks arising from the incompetence of Harslifield.
The trial court erred in refusing to instruct the jury to return a verdict for the defendants, on all the issues, and to return a verdict for defendants for reason that negligence of Harslifield, as a fellow-servant, was sole cause of injury and for which negligence defendants are not liable.”
It is thus seen that on all four of its designated points, the appellants allege error in the trial court’s refusal to instruct the jury to return a verdict for the appellant. We conclude that there was sufficient evidence to go to the jury on all four points.
In Hawkins v. Missouri Pacific Railroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W. 2d 642, we said:
“A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.”
As to assumption of risk, Prosser, Law of Torts, 3rd ed., § 67, p. 453-54, says:
“. .. [A] ssumption of risk is a jury question in all but the clearest cases. Citing, Pona v. Boulevard Arena, 1955, 35 N.J. Super. 148, 113 A. 2d 529.”
Prom the Pona, case, supra:
“It is well settled that a dismissal by the court on the ground of assumption of risk... may only be entered in the clearest case where a contrary hypothesis is not fairly admissible. * * * The elements ‘must be of such a prominent and decisive character as to leave no room for a difference of opinion thereof by reasonable minds.’ * * * The facts must appear clearly and convincingly, or as the necessary and exclusive inferences to be drawn by all reasonable men in the exercise of a fair and impartial judgment; otherwise the question is for the jury.”
Spradlin v. Klump, 244 Ark. 841, 427 S.W. 2d 542, relied on by the appellants is distinguished on the facts from the case at bar. In that case Spradlin stuck his hand into the moving parts of a mechanical hay baler operated by a power take off from a farm tractor. He was manager of the whole operation and knew more about a hay baler than his employer did. Spradlin simply stuck his hand into the machinery while it was running rather than walk to the tractor and disengage the gears or turn the switch off and stop the machinery. In that ease we affirmed the trial court who directed a verdict for the defendants in the first place, and in doing so, we said:
“...[T]he danger presented by the moving-rollers was completely open and obvious. Spradlin readily admitted on cross examination that he fully appreciated the peril involved in letting his hand get too close to the moving parts of the baler. ’ ’
In Cockerham v. Barnes, 230 Ark. 197, 321 S.W. 2d 385, the appellant employer directed the appellee and a fellow-employee to make some repairs on an irrigation pipe. The plan, as outlined by appellant, contemplated that the fellow-employee would close the shut-off valve through which the water passed from the main line to the lateral, while appellee went across the field to remove the plug from the end of the lateral. Prearranged signals between the employees apparently were not understood, and when the appellee removed the plug from the eud of the lateral, he was severely injured due to the unexpected water pressure.
On appeal from a judgment for personal injuries, the appellant insisted that appellee’s injury was due solely to the negligence of a fellow-servant for which the employer was not liable at common law, and that appellant was entitled to a directed verdict. In affirming the judgment, this court said:
“It is settled, however, that the fellow servant rule does not relieve the master from liability if his own negligence is a contributing cause of the injury. Shearman & Redfield on Negligence (Rev. Ed.), § 196.
... Even though Barnes had helped to install this system the jury was not compelled to conclude that he should have realized that to stand in front of the plugged lateral was somewhat like standing-before a loaded cannon. * * * It was for the jury to say whether the defendant was guilty of negligence that was a proximate cause of the injury.”
In E. L. Bruce Company v. Leake, 176 Ark. 705, 3 S.W. 2d 988, the appellee, a brakeman, was injured when the train car upon which he was standing, his feet in the stirrup, moved against a stump which he alleged had been negligently left standing close to the track. The appellant contended that the appellee had assumed the risk, but in affirming a judgment for the appellee, this court said:
” ‘When a servant enters into the employment of any one, he assumes the ordinary risks and hazards which are incident to the service and this includes all those defects and dangers which are obvious and patent. He assumes all the risks which he knows to exist and all those which are open and obvious.’
The above is a correct statement of the law, but it will be observed that it refers to the ordinary risks and hazards incident to the service. And it is true that he assumes the obvious risks, but, because an obstruction is near the track and the object itself or obstruction is obvious, does not necessarily mean that the risk or hazard is obvious. The servant does not assume any risk or hazard caused by the negligence of the master, unless he knows that the risk or hazard exists.
# # #
This court has many times held that, while an employee assumes all the risks and hazards usually incident to the employment he undertakes, he does not assume the risk of the negligence of the company for whom he was working, or any of its servants. He has a right to assume, not only that the master will perform its duty, but he has a right to assume that each of the other servants will perform their duty, and if, while in the exercise of ordinary care, he is injured either by the negligence of the master for whom he works or by the negligence of any other servant of the master, he has a right to recover. ’ ’
There is no question that appellants knew, or by the exercise of reasonable care should have known, that the scrapers sometime hung causing the cable to jump off the winch in this case. The appellants knew, or should have known, that when this happened the appellee, or whoever replaced the cable, did so by prying it up with a screwdriver, or other instruments, and then slowly turning the cable back onto the winch by manually turning the winch through pulling on the V belt between the two pulleys by hand. As a matter of fact, appellant Hudgins testified that it would not be practical to place a guard over the belt as the guard would have to be removed in order to get to the belt. We are of the opinion that the jury could have reasonably concluded from the evidence in this ease, that the belt and pulleys were purposely left unguarded for the very purpose of permitting employees to conveniently reach the belt for the purpose of manually turning the winch in reinstalling the cable when misplaced.
We are of the opinion that the jury could have reasonably found that this operation was comparatively safe when carefully done while the motor was not running, but be that as it may, it was a question for the jury as to whether appellants could have, and whether the appellants should have, placed guards over the pulleys to protect a workman whose known duty it was to re place the cable by pulling on the belt between the two pulleys.
We cannot say that there was no evidence from which the jury could have found that the fellow-employee Ilarshfield was incompetent and that the appellants knew’, or should have known, of his incompetency.
At the time of appellee’s injury, Harshfield’s full-time job was to clean out the chicken houses and spread the litter from a truck onto the land. Harshfield’s competency or incompetency in gathering eggs in baskets or driving a truck and spreading chicken house litter on the land is not in question here. The incompetency complained of in this case is in connection with the operation of the scrapers in general, and putting the cable back on the winch in particular, by pulling the V belt on the motor by hand as was required.
Harshfield was operating the scraper, he failed to loosen the scraper with a 2x4 appellee kept handy for that purpose. He caused the cable to get off the winch and he was required to put it back on if he could. He called appellee to assist him in putting the cable back onto the winch. The appellee proceeded as he had previously done when he, himself, was operating the scraper. He placed a screwdriver under the cable and told Harsh-field to hold it while he, appellee, turned the belt. He told Harshfield to keep away from the switch and while appellee was pulling on the belt, Harshfield engaged the switch and started the motor.
The appellee testified that Harshfield was careless and reckless. Their supervisor, Mr. Franks, testified that Harshfield was not a good man to have working around machinery; that he didn’t understand machinery very well. Juanita Evans, another fellow-employee, testified that Harshfield would “just be talking to me and just kind of absent mindedly turn off the switch that was running my belt, and sometimes I would have to tell him to turn it back on and sometimes he would flip it up and then back on.” She saj^s that she reported this to supervisor Pranks. Appellant Hudgins testified as to Harshfield’s competency in operating the scrapers by pointing out that all he had to do was throw the two-way switch. It was not Harshfield’s competency in throwing switches that was complained of in this case, it was his incompetency in throwing switches at the wrong time.
It is not for us to determine whether Harshfield was or was not a competent employee. The question before us is whether the trial court erred in refusing to withdraw that question from consideration by the jury by directing a verdict for the appellants. We are of the opinion that the trial court did not err on this point and we conclude that the jury could have reasonably found that the proximate cause of appellee’s injury was the unguarded belt pulleys coupled with Harshfield’s incompetency in throwing electric switches at the wrong time.
In Prosser, Law of Torts, 3rd ed. § 67, p. 453, in discussing assumption of risk and contributory negligence is found the following:
“Where they have been distinguished, the traditional basis has been that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable man, however unaware, unwilling, or even protesting the plaintiff may be.”
Contributory negligence is measured by the actions of any reasonably prudent person under same or similar circumstances, and assumption of risk is measured by the acts of the particular individual in the light of his own knowledge of the risk involved. So, from all the evidence in this case, we are unable to say that reasonable minds could not differ as to the fact issues raised by the pleadings and proof, and we conclude that the judgment of the trial court should be affirmed.
Affirmed.
Brown, Fogleman and Byrd, JJ., dissent.
John A. Fogleman, Justice.
I would reverse the judgment of the trial court and dismiss the complaint.
I cannot imagine a clearer case of assumption of risk by an employee, even when the evidence is given its strongest probative force in his favor and all possible inferences are drawn in his favor.
Appellee had considerable experience working around machinery. He knew that the motors, pulleys and belts in question did not have guards on them. He knew of the tendency of the scraper to hang. He well knew that the cable had a tendency to jump off the winch when the scraper was not properly broken loose. He undertook, on this occasion as he had done before, to replace the cable on the winch by prying it upward with a screwdriver and running it on with his hand while the motor was not running. He was aware of the danger inherent in attempting this operation while the motor was running and warned his fellow servant not to close the switch that would activate the motor. He continued to work around the equipment and undertook to remedy the situation which arose on the day of his injury in spite of his awareness of all the dangers involved. He admitted testifying in a discovery deposition that he knew that the machine was not safe because of lack of safety devices and guards but that he did not report this fact to anyone. He also admitted having said that he knew the situation was dangerous when he undertook the work he was doing when injured and that he might hurt his hand. He also stated on the discovery deposition that he continued to work on this machine without objection on his part and without being led to believe that it was safe. He stated that he was willing to continue his work realizing the hazards.
I think that it is equally clear that Maze assumed the risk arising’ from the incompetence of his fellow servant Harshfield. He undertook to replace the cable on the winch in response to Harshfield’s request for help. Appellee admitted knowing that Harshfield was a reckless and careless employee through personal knowledge and observation while working with him before the injury. He admitted that he knew he could not depend on Harshfield and had to watch him and that it was dangerous not to watch him.
It has long been settled in this state that when it appears to be clear that the servant has knowledge of and appreciates the danger incident to his work, or that the danger is so obvious or apparent that knowledge and appreciation thereof should be imputed to him, then the court should declare as a matter of law that the servant is not entitled to recover. Brackett v. Queen, 162 Ark. 525, 258 S.W. 635; Gaster v. Hicks, 181 Ark. 299, 25 S.W. 2d 760.
The same rule applies even though the danger arises from the negligence of the master. Western Coal & Mining Co. v. Corkille, 96 Ark. 387, 131 S.W. 963. If the servant continues to work after he discovers the defective conditions, he assumes the risks of his continued service. Greenville Stone & Gravel Co. v. Chaney, 129 Ark. 95, 195 S.W. 13.
If a servant voluntarily works with an appliance known to him to be defective, realizing its dangerous condition, he assumes the risk thereof and cannot recover from the master for the resulting injury. Helena Hardwood Lumber Co. v. Maynard, 99 Ark. 377, 138 S.W. 469. If the dangerous condition Avas apparent to appellee and lie proceeded to use the machinery without complaint, he assumed the risk of injury incident to its use. Hall v. Patterson, 205 Ark. 10, 166 S.W. 2d 667.
The employment and retention by a master of a servant who is incompetent because of his habits, or for any other reason, with actual or constructive knowledge of the servant’s unfitness is equivalent, for the purpose of determining the master’s liability, to furnishing a defective appliance. Arlington Hotel Co. v. Tanner, 111 Ark. 337, 164 S.W. 286. The same rules governing the fixing of liability, including those applying to assumption of the risk by a fellow employee are applicable. See St. Louis, I.M. & S. Ry. Co. v. Hawkins, 88 Ark. 548, 115 S.W. 175; 35 Am. Jur. 774, Master & Servant § 347. Reason and logic support this analogy.
There are several cases decided by this court which are strikingly similar to this one. In Fullerton v. Henry Wraps Co., 105 Ark. 434, 151 S.W. 1005, it was held that an experienced operator of a circular saw in a lumber mill assumed the risk of fatal injury by a piece of lumber being thrown back by the saw, due to want of a guard and to the fact that a device designed to prevent “pinching” of pieces being sawed was insufficient, especially where he was shown to have realized the danger through having made complaint about the defective condition before the accident occurred. In Pekin Stave Co. v. Ramey, 108 Ark. 483, 158 S.W. 156, this court said:
“* * * The testimony shows conclusively that he knew the manner of operation of the cut off saw which “was open and obvious; that he was a grown man of reasonable intelligence, and made no complaint about the operation of it without a shield or hood, and, if the stave company was negligent in so operating it, he assumed the risk incident to its operation, and could not hold the master liable for injuries received by him on account of its being operated without a hood. * * *”
In Ward Furniture Manufacturing Co. v. Weigand, 173 Ark. 762, 293 S.W. 1002, this court reversed a judgment for error of the trial court in not directing a verdict for the employer. The reversal was based upon the uncontradicted evidence of the employee, which, this court said showed that he was not entitled to recover by reason of assumption of the risk. The employee’s testimony was outlined as follows:
“* * * rpjle substance of the proof is that appellee had been working for the appellant continuously from the 28th day of December, 1921, until the date of his injury, which was on October 22, 1925; that he was injured on one of the older dovetail machines, which he had operated at intervals from the time he began working for appellant to the date of his injury. When he first began working on this machine, it was located on the floor of the factory above, but, for approximately two years before the date of the injury, it had been located on the ground floor of the factory, and had a different instrumentality for switching the belt to the idle-pulley, but he had operated this machine on the lower floor at intervals as much as three or four hours at a time. He knew the machine did not have a guard on it to protect his hand from getting into the cog-wheels, and he knew that it never had had such a guard; he knew the location of the shifting lever relative to the cogs, that is, how close the end of the shifting lever came to the cogs; he knew that, if he got his fingers into the cogs, he would be injured, and says that, when he attempted to shift the belt at the time of his injury, he saw the shifting lever. He had never registered any complaint to appellant or to anjr of its officers or agents about the absence of a guard or that the machine was dangerous to operate in its then condition. He admitted that he was an experienced employee, thirty-five years of age, and represented himself to be an experienced machine man when he applied for employment with, appellant, and had been engaged in operating this and other machines for appellant for the past four years. There was a big electric light right over the machine, only a short distance above it, and was burning at the time appellee was hurt.”
In Standard Oil Co. v. Gray, 175 Ark. 702, 300 S.W. 405, it was held that the trial court erred in not directing a verdict for the master. There an oil field roustabout, working on his own initiative in starting a gasoline engine, who was familiar with the method of starting the engine and necessarily knew and appreciated the danger incident thereto, was held to have assumed the risk of injury in removing a cap from the air miser on the engine. If, in fact, Maze had complained of the lack of guards, or of Harshfield’s recklessness and carelessness, he would not have been relieved from the operation of the doctrine of assumption of the risk unless he continued in his employment upon the master’s promise to remedy the condition.
In view of our previous holdings, I do not see how we can say that there was any jury question in this case.
I am authorized to state that Mr. Justice Brown and Mr. Justice Byrd join in this dissent. | [
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Holt, J.
In this case appellant sought unsuccessfully in the Pulaski circuit court, third division, to have Walter Wheatley, one of the appellees herein, ousted from the office of state senator and was also unsuccessful in his effort to secure an injunction against the state auditor and the state treasurer, restraining them from paying Wheatley any compensation as state senator. Hence this appeal.
Appellant set up in his complaint that he is a citizen and taxpayer of Garland county, Arkansas, and that suit was brought on behalf of himself and all other taxpayers of the state; that appellee, Walter Wheatley, was elected to the office of state senator for the fourteenth senatorial district at the general election in November, 1938; that he had been sworn in as a member of the state senate, and unless ousted from that office, that he would exercise the powers and perform the duties of that office in the session of the General Assembly then just convened and now in session; that unless restrained or prohibited, the state auditor would issue warrants to said Wheatley, and the state treasurer would cash them in payment for his services as state senator. That Wheat- ley was ineligible to serve as state senator, because he had been convicted of a felony by the Garland circuit court, and had been sentenced to serve one year in the state penitentiary as a result of said conviction. He further alleged that conviction of a felony is an infamous crime under the laws and Constitution of this state. The complaint prayed that the state auditor and state treasurer be restrained from issuing and cashing any warrants to Wheatley for services, and that the court enter a judgment of ouster of Wheatley from said office and for other proper relief. The complaint was duly sworn to. After demurrers filed by appellees had been overruled, they each answered denying each and every material allegation of the complaint and asked that it be dismissed.
The cause was submitted to the trial court on appellant’s complaint, defendants’ demurrer and their motion to transfer to equity, defendants’ answer and an agreed statement, of facts, which is as follows: ‘ ‘ That the defendant, Walter Wheatley, prior to January 1, 1916, was lawfully engaged in the retail liquor business; that the General Assembly of the state of Arkansas for 1915 enacted what is commonly referred to as the “bone dry” law, making it illegal on and after January 1, 1916, to barter, sell, procure, oi* give away spirituous liquor in the state of Arkansas. That shortly after January 1, 1916, and during said year, the said Walter Wheatley, without profit to himself, but purely as an accommodation to another person, procured one pint of gin, and was subsequently convicted for a violation of the above-mentioned “bone dry” law and sentenced to serve one year in the penitentiary; that prior to the time for appeal from said conviction had elapsed the then governor of the state of Arkansas issued a full and complete pardon to the said Walter Wheatley; that the said Walter Wheatley did not serve any part of the sentence imposed upon him by the court. That M. 0. Evans appeared before the Arkansas state senate in 1937, and contested the right of Walter Wheatley to hold' the office of state senator. That the senate affirmed the right of Walter Wheatley to hold the seat to which he had been elected, and said body seated the said Walter Wheatley, and he served daring the General Assembly of 1937 and the special session of 1938. That Walter Wheatley was the candidate of the democratic party in the general election of 1938, running for the office of senator from the fourteenth senatorial district. That he was opposed in said election by two other candidates, one of whom was the plaintiff in this action, M. 0. Evans. That in said election Walter Wheatley was elected to the office of state senator, and that M. 0. Evans ran third- in said election. That the senate has accepted the qualifications' of the said Walter Wheatley, and he has been sworn in as a member of that body, and is now serving and acting as state senator from the fourteenth senatorial district.”'
The trial court found that the crime of which Wheat-ley was convicted was not and is not an infamous crime, that he is eligible to serve as state senator, and that the senate already having passed upon his qualifications and having, accepted him, and he having been sworn in as a state senator, the court was without jurisdiction to grant the relief prayed and dismissed the complaint.
The appellant insists here that the trial court had jurisdiction to hear and determine this cause; that the action of the senate in. seating Wheatley as a. member of that body did not deprive the courts of jurisdiction to pass on his eligibility to serve as a senator, and that the constitutional provision, that each house of the General Assembly shall be the sole judge of the elections and qualifications of its members, did not include the power to judge as to the eligibility or ineligibility of anyone who might be elected to such a body.
Article V; § 11 of the Constitution of the state of' Arkansas, provides as follows: “Each house shall appoint its own officers, and shall be sole judge of the qualifications, returns and elections of its own members.” We are of the opinion that this section of the Constitution is decisive of this case, and that the senate is the sole judge of the qualifications of its members. The above language is clear and unambiguous. This court said in State ex rel, Attorney General, v. Irby, 190 Ark. 786, 81 S. W. 2d 419, . . where the language employed in the Constitution is plain and unambiguous the courts cannot and should not seek other aids of interpretation Clayton v. Berry, 27 Ark. 129; State v. Ashley, 1 Ark. 513; Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586, and every word used should he expounded in its plain, obvious and common acceptation. State v. Martin, 60 Ark. 343, 30 S. W. 421, 208, L. R. A., 153.” It is undisputed here that the senate has passed upon the qualifications of Senator Wheatley and held him qualified.
Article V, § 9 of the Constitution provides: “No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime shall be eligible to the General Assembly or capable of holding any office of trust or profit in this state.” Appellant insists that Senator Wheatley is ineligible to a seat in the senate under this provision of the Constitution for the reason that he has been convicted of an infamous crime. We hold that the seXiate is the sole judge of his eligibility under this section. It may be that the senate in passing upon his eligibility or qualifications found that the crime with which he was charged was not infamous. ’But be that as it. may, the action of the senate in that regard and in seating him is final, and the trial court in this case was without jurisdiction to determine that matter. '
We cannot agree with appellant that the word “qualifications,” as used in § 11, art. Y of the Constitution, should be given the restricted definition and interpretation which he insists should be placed upon it. We think it includes and embraces the word “eligibility.”
In Raney v. Taylor, 166 Ga. 476, 143 S. E. 383, the Supreme Court of Georgia said: “The judge, in a written opinion included.in the record, distinctly recognizes the constitutional provision embodied in § 6430 of the Civil Code which declares that ‘each house shall be the judge of the' election returns, and qualifications of its members’ but in effect holds that the question raised in this case is not. one as to the qualifications of the respondent as a member of the General Assembly, but is as to his ‘eligibility,’ and in effect holds that the court has the right to pass upon the ‘eligibility’ of a member of the General Assembly, and, if the member in question he found to be ‘ineligible,’ to deprive him of his seat. In support of that conclusion the trial .judge sets forth in his opinion the definitions of the word ‘qualification’ and the word ‘eligibility.’ These definitions are taken from Webster’s Dictionary, and are as follows: ‘Qualification’ is defined: ‘Any natural endowment, or acquirement Avhich fits a person for a place, office or employment, or enables him to sustain any character Avith success; and enabling quality or circumstance; requisite, capacity or possession.’ ‘Eligibility’' is defined: ‘ Proper to be chosen, qualified to be elected —legally qualified.’ We" are of the opinion that the word ‘qualifications,’ as used in the constitutional provision quoted, is not subject to the limitations which the definition taken from the dictionary referred to would seem to impose. The Avord ‘qualifications,’ as thus used in the Constitution, seems to include also certain of the elements of ‘eligibility.’ ”
In Commonwealth v. Jones, 10 Bush, p. 725, the court said: “We concur in the construction of the coilstitution as given by the court in the. case of Hall v. Hostetter (17 B. Mon. 784), ‘that the words qualifications and qualified are used therein in their most comprehensive sense, to signify not only the circumstances that are requisite to render a citizen eligible to office or that entitle him to vote, but also to denote an exemption from all legal disqualification for either purpose’; and we concur fully in the illustration given in that case: ‘The circumstances under Avhich a citizen is entitled to vote are prescribed in the constitution; but he may have those qualifications and still by some act have become disqualified, and not be a qualified Amter in the sense in which the Avord is used in the Constitution. The word qualifications seems to be- used in the same sense and implies not only the presence of every requisite which the constitution demands, but also the absence of every disqualification Avhich it imposes.’ ”
By the above provision, art. Y, § 11 of the Constitution, a clear mandate is given to each house of the General Assembly to be the sole judge of the qualifications of its members, and the courts of this state have no authority or jurisdiction to question the wisdom of their actions in seating or refusing to seat one elected to membership.
We conclude, therefore, that no error was committed by the trial court, and its judgment is accordingly affirmed. | [
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John I. Purtle, Justice.
The Circuit Court of Washington County denied appellant’s petition to set aside his guilty pleas pursuant to Rules of Crim. Proc., Rule 37.1 (d) (1976). On appeal it is urged that the trial court erred in refusing to sustain the petition which alleged ineffective assistance of counsel.
On August 5, 1976, appellant entered a guilty plea to a charge of rape and also to a charge of possession of stolen property. He was sentenced to concurrent sentences of 30 years on each with 9 years suspended. On September 19, 1978, he filed his Rule 37 petition pro se. After a full hearing before the trial court, at which hearing appellant was ably represented by appointed counsel, the petition was denied. We are asked to declare that the trial court erred in failing to grant the petition. It is our opinion that the decision of the trial court is supported by the evidence presented at the hearing and we do not find reversible error.
Appellant alleged his guilty pleas were entered because his attorney threatened to withdraw from the case unless he pleaded guilty. The alleged threats came on the date he was scheduled for trial before a jury. The evidence at the Rule 37 hearing included everything appellant desired to present. Several allegations related to matters which cannot be considered on a Rule 37 hearing and will not be discussed in this opinion. For information purposes only, these unrelated matters included allegations that appellant was brought from Missouri to Arkansas without an extradition hearing; that he was never placed in a line-up; and that he was not served copies of the arrest warrants.
Appellant testified at his Rule 37 hearing that his attorney did not subpoena witnesses which he had requested; told him a jury would likely give him 50 to 60 years if he went to trial; that a guilty plea was not discussed until the day of the trial; that he (the attorney) would walk out if a guilty plea were not entered; that the attorney took him outside the courtroom twice before getting him to enter guilty pleas; and that the attorney caused appellant’s mother and brother to help persuade him to plead guilty. The appellant’s mother and brother testified generally to the same matters. The brother admitted he recommended appellant plead guilty, and the mother stated the attorney told them appellant could get life or possibly the electric chair if he did not plead guilty. She further stated the attorney told her appellant would probably have to serve only 3 or 4 years if he pleaded guilty.
From the record is is quite clear that appellant was most reluctant to plead guilty. It is also clear that his attorney used considerable persuasion in getting him to plead guilty. Nevertheless, it is equally clear that the plea was, in the end, a voluntary one as evidenced by the following questions and answers:
The Court: You know of no witnesses nor defense that will help you in either of these cases?
Appellant: No, sir.
* * *
The Court: Has your attorney acted soberly, diligently, and competently in advising you in this case?
Appellant: Yes, sir.
The Court: Do you have any criticism of his conduct in his representation?
Appellant: No, sir.
The original trial attorney took the stand at the Rule 37 hearing testifying that he had contacted all witnesses suggested on behalf of appellant and was convinced none of them would be of any assistance in the defense of the case. He stated he had been practicing law for 11 years and had averaged trying 10 to 12 jury cases per year. He considered the probability that after the appellant had been convicted on either charge he would be sentenced as a habitual criminal on the second trial because he had a prior conviction record. (Appellant had a conviction other than these two charges.) He admitted telling the appellant he would likely receive a sentence of 50 to 60 years if he insisted on a jury trial. In his opinion appellant would have no witnesses and could not afford to take the stand. Also, he admitted he sought the assistance of appellant’s mother and brother in persuading him to plead guilty. He denied telling appellant he would walk out on him if he insisted on a jury trial but stated he informed appellant he could go to the jury if he insisted. The sum total of his testimony was that in his professional judgment pleading guilty, and having the sentences run concurrently, was in the best interest of his client.
In essence, appellant’s argument appears to be that the employed counsel overrepresented him at the time of entry of the guilty pleas by forcing him to plead guilty. The petition also seems to be a backhanded way of trying to withdraw his guilty pleas. This is not a timely presentation for a Rule 26.1 attempt to withdraw a guilty plea. Pettigrew v. State, 262 Ark. 359, 556 S.W. 2d 880 (1977). We pointed out the distinction between Rule 26.1 and Rule 37.1 in Shipman v. State, 261 Ark. 559, 550 S.W. 2d 454 (1977), wherein we stated that a Rule 26.1 petition should be amended to seek relief under Rule 37.1 before it could be considered in a post-conviction collateral attack on a sentence.
There is a presumption that counsel is competent. Davis v. State, 253 Ark. 484, 486 S.W. 2d 904 (1972). Therefore, it is the duty of appellant to prove ineffective assistance of counsel. Porter v. State, 264 Ark. 272, 570 S.W. 2d 615 (1978). In the present case the record clearly reveals the sentencing judge became somewhat unsure of appellant’s voluntariness and granted a recess on two occasions for the purpose of allowing a discussion between appellant and his retained counsel. At most, the evidence tends to show appellant and his attorney gave conflicting testimony as to the voluntariness of the pleas. Under these circumstances we are unable to say the trial court was not justified in accepting the version of retained counsel over that of appellant in finding the pleas were voluntary. It is our custom to defer to the superior position of the trial court where the disposition of the matter depends upon credibility of witnesses who appear before the trial court. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978). The advice given by retained counsel obviously is within the range of competence demanded of attorneys in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W. 2d 152 (1973).
Affirmed.
Harris, C.J., not participating. | [
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George Howard, Jr., Judge.
This is an appeal from a summary judgment rendered in behalf of First National Bank of Fort Smith against Canal Insurance Company for $2,-412.99; and a summary judgment in behalf of Canal Insurance Company against International Harvester Credit Corporation, under the terms of a purported “hold harmless agreement”, for $2,412.99 plus an attorney’s fee of $1,725.42. This proceeding is essentially two separate actions, but are interrelated. Consequently, the entire matter will be disposed of in this opinion.
The facts are not in dispute. However, the pertinent facts for a resolution of the issues tendered are: Canal Insurance Company, on January 24, 1974, issued an insurance policy to Jim Marler insuring a utility refrigeration trailer. On April 5, 1974, International Harvester Credit Corporation, the lienholder, was added as a loss payee by an endorsement to the policy.
Following an accident involving the trailer on August 18, 1974, Marler filed a claim with Canal for the damages sustained. On April 22, 1975, Canal issued its draft, No. 414449, for $2,412.99. The following language was printed on the face of the draft: “Upon Acceptance Pay To The Order Of Jim Marler” and “Payable Through the South Carolina National Bank, Greenville, South Carolina.” Marler deposited the draft on May 5, 1975, in a checking account of Nationwide Refrigerated Express, Inc., maintained at First National Bank of Fort Smith. First National permitted Marler to withdraw funds from the account, and moreover, the account was closed before First National received a reply to its tender of the draft to South Carolina National Bank for payment.
On May 16, 1975, the draft was presented for payment, but was not accepted because Canal had issued a stop payment order. Other reasons asserted for nonacceptance were: the draft was improperly drawn, was improperly endorsed and was in a mutilated condition.
On August 12, 1975, Canal issued a substituted draft, No. 420392, in the sum of $2,412.99, made payable to Marler and International, after Canal realized that International’s name, as loss payee, was inadvertently omitted from the first draft and, furthermore, Marler had refused to respond to Canal’s request for return of the draft for cancellation. The second draft was forwarded to First National, but the instrument was never presented for payment because International refused to endorse the substituted draft contending that it was entitled to a draft exclusively as a single interest payee. International, in the meantime, had repossessed the trailer; and the outstanding balance remaining on the trailer was $12,554.28.
On September 2, 1975, Canal issued its third draft for $2,412.99 made payable to International only after International had executed, approximately one week earlier, a “hold harmless agreement” purporting to indemnify Canal “from any further claim” and to “defend any suit or go to any trouble or expense to protect the Canal Insurance Company from any further claims under the above-referred policy.”
First National filed its lawsuit against Canal on December 30, 1975, seeking judgment for $2,412.99. Canal informed International of the action on January 15, 1976, and requested International to intercede in the lawsuit and defend Canal’s interest. International denied any obligation to respond to Canal’s request contending that the hold harmless agreement did not provide for a defense “to any action as a result of the alleged wrongfully stop-payment of a draft issued in settlement of the subject claim.”
On February 12, 1976, Canal filed its answer to First National’s complaint and a third party complaint against International for judgment of its expenses incurred in de fending the action and for whatever sum of money Canal may be required to pay First National.
THE DECISION
I.
THE JUDGMENT IN FAVOR OF FIRST NATIONAL AND AGAINST CANAL INSURANCE COMPANY
Canal argues rather persistently that its initial draft, No. 414449, made payable to Jim Marler only was not a negotiable instrument inasmuch as the draft was conditional “Upon Acceptance” and “Payable Through the South Carolina National Bank, Greenville, South Carolina.” Consequently, argues Canal, Canal had no affirmative obligation under the instrument until Canal had accepted the draft and, furthermore, until acceptance, Canal had every right to stop payment on the draft. Accordingly, reasons Canal, the trial court erred in rendering a judgment against it in behalf of First National.
In support of this position, Canal cites, among other things, Ark. Stat. Ann. § 85-3-410(1) which provides essentially that “acceptance” is the drawee’s signed engagement to honor the draft as presented; and there must be some manifestation of the drawee’s acceptance on the draft.
Canal further contends that the language “Payable Through the South Carolina National Bank, Greenville, South Carolina” on the face of its initial draft simply designated South Carolina National Bank as a collecting bank without authority to pay the draft. Consequently, the bank is not a drawee and is not ordered or even permitted to pay the instrument out of any of the drawer’s funds, if any, on hand. Canal relies on Ark. Stat. Ann. § 85-3-120 to support its argument here. Ark. Stat. Ann. § 85-3-120 (Add. 1961), in material part, provides:
An instrument which states that it is ‘payable through’ a bank or the like designates that bank as a collecting bank to make presentment but does not of itself authorize the bank to pay the instrument.
While Canal’s argument is interesting and on first blush seems plausible, after close scrutiny of the circumstances existing in this case and consideration of the applicable law, we are not persuaded by Canal’s argument and it is, therefore, rejected.
In First National Bank of Huttig v. Rhode Island Insurance Company, 184 Ark. 812, 43 S.W. 2d 535 (1931), the Arkansas Supreme Court, in disposing of an identical issue under § 7896, Negotiable Instrument Act of Crawford and Moses’ Digest, made the following observation:
... A bill of exchange drawn by the maker upon himself is in legal effect a promissory note, and cannot be countermanded. Where a bill of exchange is drawn by a corporation upon itself, the instrument may be treated as an accepted bill or as a promissory note at the election of the holder.
In the present case, the instrument which is the basis of the suit was in form a bill of exchange. It was drawn by the corporation Rhode Island Insurance Company, under the signature of its president upon itself. In other words, it was a bill of exchange drawn by the corporation through its proper officer upon itself, and was not therefore subject to countermand.
It is claimed, however, that it was conditional because of the words ‘upon acceptance’ in it. . . . [TJhese words had no legal effect on the instrument. They were in the instrument where it was signed by the president of the corporation, and the very act of drawing the bill is deemed an acceptance of it, and the holder may treat it as an accepted bill of exchange or as a promissory note.
In Falk’s Food Basket v. Selected Risks Insurance Company, 214 Pa. Super. 522, 257 A. 2d 359 (1969), the Superior Court of Pennsylvania, in dealing with an identical issue under the Uniform Commercial Code, made the following statement:
‘Upon Acceptance’ does not destroy the negotiability of this instrument because it is only a restatement of an ‘implied or constructive condition’ of any draft or check, which must be accepted to charge the drawee. ‘A promise or order otherwise unconditional is not made conditional by the fact that the instrument (a) is subject to implied or constructive conditions; . . . However, the Code provides, ‘A draft drawn on the drawer is effective as a note. Where a draft is drawn by one person on himself or itself, which has the effect of a promissory note or an accepted bill of exchange, it is considered to be accepted by the very act of issuing it and presentment and acceptance are not necessary to make the draft a liability of the drawer to the payee or holder. . . . The use of ‘Upon Acceptance’ on this note is superfluous for this additional reason.
Since ‘Upon Acceptance’ and ‘Payable Through’ do not destroy this instrument’s negotiability and there is no other allegation in the record that the appellee had any other notice of a defense against the instrument, appellee is a holder in due course.
In Bailey v. Palster, 468 S. W. 2d 105 (Tex. 1971), the Court held that where an insurance company settled a claim and issued a draft upon itself, in its capacity as drawer, use of the words “upon acceptance” in the draft did not give the drawer the right to stop payment.
In General Motors Acceptance Corp. v. General Accident Fire & Life Assurance Corp., 67 N.Y. Supreme Court A.D. 2d 316 (1979), in reviewing the legal effect of a draft providing “payable through the First Pennsylvania Bank” stated, among other things:
Because this draft was drawn by defendant on itself, payable through the First Pennsylvania Bank, defendant contends that the situation is the same as though it were only the drawee of the draft, and it is not liable thereon because it did not accept it . . . but, instead, stopped payment on the draft; . . .
. . . Upon issuance of the draft the drawer engages that upon its dishonor and appropriate notice and protest, he will pay it, unless he notes thereon that it is drawn without recourse . . . The draft in this case was not drawn without recourse and, since there was no drawee (other than defendant itself) who accepted responsibility for it, defendant remains liable thereon
. . . After defendant stopped payment on the draft it remained liable on it to plaintiff as a holder in due course . . .
See Also: 11 Am. Jur. 2d, Section 23, page 52, Bills and Notes; 10 C.J.S., Section 171, page 646, Bills and Notes, where it is provided that where in a bill the drawer and drawee are the same person, the holder may treat the instrument, at his option, either as a bill of exchange or a promissory note; and, accordingly, an acceptance is not necessary on the part of the drawer-drawee.
We conclude that Canal remained liable on its initial draft made payable to Jim Marler only although a stop payment order was issued. As maker and drawee of the instrument, Canal could not countermand the draft. Moreover, where, as here, a bill of exchange is drawn by the maker upon itself, the mere execution of the bill is deemed an acceptance of it and the holder has an option to treat the draft as an accepted bill or as a promissory note.
It is plain that Canal’s draft contained all the elements of negotiability and was not drawn without recourse. The record is deficient of any proof that First National had notice of any defense against the instrument. First National was, indeed, a holder in due course. Accordingly, the judgment of the trial court in behalf of First National is affirmed.
H.
THE JUDGMENT IN FAVOR OF CANAL AND AGAINST INTERNATIONAL
It is undisputed that International, by an endorsement to the policy issued by Canal, became a loss payee under the policy on April 5, 1974, approximately four months prior to an accident on August 18, 1974, resulting in the loss sustained by the insured. However, on April 22, 1975, Canal, without the knowledge of International, delivered to Jim Marler only, its draft to cover the loss. Moreover, it is plain that International did not receive knowledge of Canal’s initial draft to Marler until September 2, 1975, approximately one week after International had executed the hold harmless agreement prepared by Canal.
International argues, on the one hand, that the language contained in the hold harmless agreement means that Canal was to be indemnified or held harmless “from any further claim” relating to any affirmative action on the policy itself and does not require International to respond to an action based on negligence or negotiable instrument errors.
It is clear that after Canal issued its initial draft to Jim Marler only, Canal sought to correct the error by requesting Marler to return the draft for cancellation, and finally, Canal stopped payment on the instrument. Canal issued its second draft made payable to Marler and International on August 12, 1975, and when International refused to endorse it, Canal issued its third draft to International only.
Canal, on the other hand, argues that its third draft to International only was delivered in reliance on the hold harmless agreement and “¿Mi /or” the hold harmless agreement, the draft to Inernational would not have been issued.
We are persuaded that the hold harmless agreement did not contemplate the action instituted by First National against Canal which is predicated upon the nonpayment of the initial draft as a consequence of the issuance of a stop payment order by Canal. It must be remembered that Canal’s dealings with First National were prior to the execution of the hold harmless agreement and it is apparent that the hold harmless agreement is prospective in scope and purpose. First National had no claim under the policy, and First National is not even mentioned in the hold harmless agreement or the policy. The hold harmless agreement provides explicitly that International is to hold Canal harmless and provide for a defense to “any further claims under the above referred policy.”
Accordingly, we reverse the trial court and the action i dismissed with cost assessed against Canal.
Hays and Newbern, JJ., dissent.
This appeal was originally lodged in the Arkansas Supreme Court, but was transferred to this Court under Rule 29(3) of the Rules of the Arkansas Supreme Court.
Marler was a stockholder as well as an officer of Nationwide Refrigerated Express, Inc.
Canal has stated in its brief that it had not been able to locate any Arkansas case law on the point. We have found an Arkansas case, discussed hereinafter, that seems relevant to the issue before us.
See: Ark. Stat. Ann. § 85-3-104(1) (Add. 1961).
See: Ark. Stat. Ann. § 85-3-118(a) (Add. 1961).
See: Ark. Stat. Ann. § 85-3-302(l)(c) (Add. 1961)
See: Ark. Stat. Ann. § 85-3-413(2) (Add. 1961). See: Spencer v. Halpern, 63 Ark. 108, 37 S.W. 712, where the Arkansas Supreme Court recognized at an early date that one desiring to escape liability on a bill may do so by inserting the words “without recourse.”
A contract must be strictly construed against the party preparing it. Foster v. Universal C.I.T. Corp., 231 Ark. 230, 330 S.W. 288 (1959). Where one of two innocent persons must suffer, the one who puts it in power of a third person to perpetuate the act causing the loss should suffer the loss. Arkansas Power & Light Co. v. Bauer-Pogue & Co., Inc., 194 Ark. 1002, 110 S.W. 2d 529; Commercial Credit Company v. Hardin, 175 Ark. 811, 300 S.W. 434. | [
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Carleton Harris, Chief Justice.
This appeal involves the validity of a written contract entered into by N. F. Yarbrough and his nephew and his wife, Dewey Luzader and Anna Pearl Luzader, appellees herein. The instrument provided that the Luzaders should have $12,000.00, which was on deposit with the Southern Federal Savings and Loan Association in Pine Bluff, if appellees gave him a home until his death. A factual background is as follows:
Yarbrough’s wife died on September 19, 1966, Mr. Yarbrough being 84 years of age at that time. On the day following Mrs. Yarbrough’s death, and also a few days later, Yarbrough, together with his brother, Claude, went to the Southern Federal office for the purpose of transferring savings accounts. Yarbrough held four or more such accounts, which totaled more than $49,-000.00. One account, in the amount of $7,000.00, was placed entirely in the brother’s name. Remaining accounts were changed to require the signatures of both brothers in order to make withdrawals. Subsequently, Frank (N. F.) Yarbrough returned to the Southern Federal office on one other occasion to discuss the accounts with tiie company secretary.
Yarbrough had long expressed the desire to live with the Luzaders in the event of the death of his wife, and he went to the Luzader home at Leola, Grant County, Arkansas, three days after the funeral of Mrs. Yarbrough. On October 25, Mr. Yarbrough, accompanied by Anna Pearl, went to the office of Pierce A. Reeder, postmaster at Leola, and a contract was handed to Reed-er, Mrs. Luzader requesting the postmaster to “notarize” it. Reeder testified that he read it, and concluded that it should be drawn up in a form where it could be witnessed by two other people. When Mrs. Luzader left to find two persons, Reeder typed up the agreement, and made it ready for signatures. The postmaster testified that lie copied the paper handed him, and added the part about the presence of witnesses. Mr. Yarbrough then executed the typed contract, and the two witnesses signed their names.
On December 5, 1966, Mr. Luzader petitioned the Probate Court for the appointment of a guardian for Yarbrough, the allegations being that the latter was incompetent, because of senility and old age. On December 9, the court held Yarbrough incompetent, and appointed Simmons First National Bank of Pine Bluff as guardian. At this hearing, Claude Yarbrough relinquished the interest in his brother’s savings accounts, and the court awarded appellees the sum of $150.00 per month for keeping the old man. Yarbrough died on August 21, 1967, and appellant bank was named administrator of the estate. The Luzaders filed a claim for $12,000.00 based on the written contract heretofore mentioned. The bank refused to allow this claim, but on hearing, same was allowed by the Probate Court. From the judgment allowing the claim in the amount of $12,-000.00, the bank brings this appeal. For reversal, it is asserted that the court erred in holding that the administrator had failed to overcome the presumption of Yarbrough’s competency, and it is also alleged that the contract was unenforceable for failure of consideration.
All parties agree that the document in question was not a conveyance, or will, but was a contract. The court, in its written opinion at the conclusion of the case, held that the bank had ‘ ‘ failed to overcome the presumption of competency that follows the execution of a written instrument.” Appellant disputes that there is such a presumption, and points out that the Chancellor cited no case in support thereof. We disagree with this argument. In Dalton v. Polster, 200 Ark. 168, 138 S.W. 2d 64, this court said:
“Having pleaded her incompetency, the burden was on appellants to show it. Incompetency is never presumed, but the contrary is.”
In Harris v. Harris, 236 Ark. 676, 370 S.W. 2d 121, we commented:
‘‘ There is a presumption of law that every man is sane, fully competent and capable of understanding the nature and effect of Ms contracts.”
Harris v. Harris is also quoted with approval in Union National Bank of Little Rock, Trustee v. Smith, 240 Ark. 354, 400 S.W. 2d 652. Of course, in addition, the execution of the contract having been shown, the burden of proving incompetency rested with the bank, since it sought to invalidate the instrument. The cited cases are likewise authority for this last.
As a matter of proving the mental incompetency of Yarbrough, appellant relies upon the testimony of Claude Yarbrough, the brother of the deceased, Connie Haner, a niece of N. F. Yarbrough, and Hattie Bea Blaser, Secretary of the Southern Federal Savings and Loan Association of Pine Bluff. Mrs. Haner testified that she probably saw Yarbrough twice between the time of his wife’s death and the execution of the contract -with the Luzader’s. When interrogated as to her uncle’s mental condition at the time of his wife’s death, she replied:
“Just like he always was the last few years. Just a little, well, you’d have to know Uncle Frank to know him. He was just sort of here and there.”
Mrs. Haner said that he could remember some things pretty well, but could not remember others; that lie had “been like that for years.” When asked if he had an understanding of the nature and extent of Ms property, the witness said:
‘ ‘ Well, he knew he had his money and we talked about it and different things like that. He liked to talk about Ms money to me. * * * He didn’t know how much he had, really. He didn’t know that, no.”
She said that in April, 1967, a relative had died, and she talked to her uncle in Grurdon; that he told her at that time that he wanted to go to Pine Bluff, and get his money out of the bank, because Anna Pearl had written a paper that would give her $12,000.00, and he didn’t want her to have it. She also said that he desired to move back to Pine Bluff. The witness made clear that she was not saying that her uncle had been compelled to sign the paper. “He said that she wrote out a paper and I signed it that I would give her this money.” Mrs. Haner did agree that Yarbrough had been anxious to live with his nephew and wife at the time of the death of his wife.
Claude C. Yarbrough lives in Little Rock. He testified that he went to the N. F. Yarbrough home in Pine Bluff the morning after Mrs. Yarbrough’s death, and “he [N. F. Yarbrough] told me, as he had previously, that he wanted to sign over all of his savings in my name.” They went to the Southern Federal Savings and Loan Association, and $7,000.00 was transferred to the witness; the balance was not transferred, because he did not have the “deposit slips.” N. F. Yarbrough did not know where these -were located, but a stepdaughter, who arrived the next day from Illinois, produced them, the balance amounting to about $42,000.00. The Yarbroughs returned to the savings and loan office, and these amounts were placed in joint accounts for the two brothers, with right of survivorship; during their lifetime, the money could not be drawn out without both signatures. Claude testified that his brother did not know how much money he had with the savings and loan, and he said that N. F. argued with the secretary of the association that he only had $21,000.00. The witness stated that N. F.’s mind was “bad then,” and it kept deteriorating until he was completely blank the last month or two of his life. While Claude testified that, at the probate hearing, he agreed to turn over all of these accounts to the guardian, it appeared on cross-examination that he might have been a little reluctant to do so.
Tlie strongest evidence offered by appellant was that of Hattie Bea Blaser, the secretary for the savings and loan association. Sbe said that N. F. Yarbrough, accompanied by Claude, came to the office on September 20, and informed her that his wife had passed away the night before, and he would like to transfer his money to his brother’s name. She told him that he wonld need his pass book and certificates of deposit, and he then asked how much money he had. After checking the accounts, Mrs. Blaser advised that there was $42,000.00 in four different accounts. Referring to the deceased, the witness stated:
® * I’ve known him for several years. He was a peculiar person in a certain sense. One account he would carry in a different name. One would be Newton F. and one would be in N. Frank Yarbrough or N. F. Yarbrough. He always, you know, in opening a new account, would use his name in a different manner.”
Mrs. Blaser said that he didn’t seem to have any idea of how much he had on deposit, and that it was her personal opinion that he didn’t understand the effect of transferring the accounts. She added that, for the last three or four years, N. F. Yarbrough had not been as alert as she had known him to be in years past; that for the last two years, there never was a time when he knew what he was doing. She later modified this statement, saving' that, during that period, she did not believe him able to take care of a business matter.
Mrs. Luzader testified 1 that Yarbrough came to Leola to live with the Luzader family three days after his wife’s death; that he died on August 21, 1967, in a hospital, after suffering a stroke on July 7. She detailed the necessary duties in taking care of Mr. Yarbrough, who, after a few months, lost control over his bodily functions. Appellee said that sometimes the bathroom would have to be cleaned two or three times a morning, and that this lack of control was evidenced in the family automobile; that it was difficult to get Yarbrough to a barber and back home without changing his clothes; that her 16-year-old son would bathe him, and they would dress him. She said that Yarbrough was happy in the home, but embarrassed.
Mrs. Luzader testified that she received the $150.00 per month allowed by the probate court for Mr. Yarbrough’s maintenance, and that Yarbrough paid her an additional $150.00 per month from his railroad retirement check after the first of the year, 1967.
Glenn Paul Luzader, the son, testified that on one occasion, when they were sitting in the den, he heard his Uncle Frank tell his mother that Yarbrough wanted her to have the $12,000.00 after he passed away.
Iona Jones, daughter of the Luzaders, testified that she had many times, as a child, heard her uncle express the desire to live with her parents if he out-lived his wife; he did not want to go to a home for old folks. She said that she would visit on weekends following his move to Leola, and that he had told her that he was very thankful that he didn’t have to go to a rest home, but could spend the rest of his life with her folks.
Evelyn Smith, the housekeeper, had been going to the Luzader home one day per week for years, but after Yarbrough moved in, Mrs. Smith worked two days per week. She said that she helped Mrs. Luzader rearrange the furniture, giving Mr. Yarbrough the bedroom closest to the bathroom, and that she had many conversations with him while she was ironing. Mrs. Smith stated that he would mention that he did not want to go to a rest home, and that he wanted Mrs. Luzader to have a part of his savings.
We agree with the Chancellor that the evidence was insufficient to establish the incompetency of Mr. Yarbrough. It is noticeable that no medical evidence vías introduced that Yarbrough was incompetent, though, according to Mrs. Blaser, he appeared, in her opinion, to have been unable to attend to business matters for the last two years before his death. Medical testimony of incompetency, though certainly not essential, is important and potent evidence in this type of case, and, in Harwell v. Garrett, 239 Ark. 551, 393 S.W. 2d 256, we emphasized that not a single medical witness testified that Frank Garrett was incompetent.
The fact that Yarbrough did not seem to understand the result of a joint account, or did not know just how much money he had, is, in our view, of no great significance under the circumstances of this case. We daresay there are many people in their 80’s, who have but lit ¡le knowledge of business affairs, and who have difficulty in remembering details. Certainly, Claude Yarbrough must have considered that his brother was competent to make the changes in the accounts, or he would not have permitted this to be done. It would appear, according to the testimony of Mrs. Blaser, that N. F. Yarbrough had acted peculiarly for a number of years. She mentioned that each time he opened an account, he would use a different version of his own name, but peculiarities do not establish one’s mental incomp etence. In Harwell v. Garrett, supra, in quoting from Volume I, Page on Wills, § 12.37, we said:
“The fact that the testator was filthy, forgetful and eccentric, or that he was miserly and filthy, or that he was blasphemous, filthy, believed in witchcraft, and had dogs eat at the same table with him or that he was filthy, frequently refused to eat, and would lie in bed with his clothes on for two weeks at a time, or that he would leave his home only at night, and would count or recount his money, or that he was high tempered and violent, or was irritable and profane, or that testator thought that others were plotting against him and was afraid to go out in the dark, or that he was inattentive when spoken to and mumbled when trying to talk, does not establish lack of capacity.”
It is readily apparent that Mr. Yarbrough’s acts in no wise compared with the language just quoted, and we have many times said that being forgetful and eccentric does not establish lack of mental capacity.
Of course, it is necessary that appellant show the lack of Yarbrough’s mental capacity to enter into the contract at the time this instrument was executed. Here, there is not one line of evidence relative to that point offered by the appellant; in fact, the only effort was an attempt to show that Yarbrough was mentally deficient thirty-eight days before he signed the agreement. In Petree v. Petree, 211 Ark. 654, 201 S.W. 2d 1009, Mrs. Anna Petree executed a contract on June 22, 1942. Lay evidence was offered that she was not able to transact business in June, 1942, and medical evidence was offered to the same effect, although the doctor so testifying did not examine Mrs. Petree thoroughly until September or October of that year. The physician stated that her condition had not come on suddenly; however, he was unwilling to testify that she was incompetent in June. We held Mrs. Petree competent. In the instant litigation, we reiterate that there is not one iota of evidence to the effect that Mr. Yarbrough was mentally incompetent in October, 1966.
This court has said that mental weakness, though not to the extent of making one incapable of executing a deed, may cause a person to be more susceptible to fraud, duress, or undue influence, and that when that mental incapacity is coupled with any of those conditions, a contract may be voidable. Cain v. Mitchell, 179 Ark. 556, 17 S.W. 2d 282. Here again, there is no proof of fraud, duress or undue influence. One paragraph in appellant’s brief is devoted to the argument of undue influence, and this is based upon a comment by Mrs. Blaser that it was her personal feeling that Yarbrough ■was easily influenced by anyone close to him. It hardly seems necessary to state that that testimony comes nowhere near establishing that Mrs. Luzader exercised undue influence upon the uncle.
It is argued that appellees were well paid for their service's in taking care of Mr. Yarbrough by virtue of the fact that they received $300.00 per month. One hundred and fifty dollars ($150.00) of this was allowed by the Probate Court, and the other $150.00 was paid to Mrs. Luzader by Yarbrough from his retirement cheek. Appellant says that certainly Mr. Yarbrough did not contemplate, in agreeing that they should receive $12,000.00, that appellees would also receive $300.00 each month; that accordingly, the consideration for the agreement fails. We do not know what Mr. Yarbrough contemplated, but the evidence certainly indicates that he was quite devoted to the Luzaders.
It is established by the evidence, in fact, undisputed, that Mr. Yarbrough had a strong aversion to being placed in a nursing, or old folks, home; he expressed the desire many times to live with his nephew and wife. It is likewise established that the Luzaders took care of Mr. Yarbrough, as they agreed to do; in other words, they carried out their part of the agreement.
Let it be remembered that this is not a case where a man is depriving his wife or children of needed monies — this is not a case where loved ones are cast aside for strangers. To the contrary, all heirs are collateral heirs, none of whom, from the record, had anything to do with helping Yarbrough accumulate his savings. Nor does it appear that the other relatives were anxious to take care of this aged man. Also, the Luzaders are not receiving all of his money; in fact, including the amount allowed by the Probate Court, they will be receiving but little more than one-fourth of the estate.
We find no reversible error.
Affirmed.
Brown, J., not participating.
Reeder was under the impression that the instrument was a will.
“When and if Dewey Luzader and his wife, Anna Pearl Luzader gives me a home until my death, it is understood that they shall have the sum of Twelve Thousand Dollars ($12,000.00) of my money on account in the Southern Federal Loan and Savings at Pine Bluff, Arkansas or wherever it may be at the time of my death. Signed this 25th day of October 1966. Signed /s/ N. F. Yarbrough. In the presence of the following witnesses and in the presence of each other on this 25th day of October, 1966.
/s/ Olen Biggs, Leola
/s/ Austin Lamb, Leola.”
Our emphasis.
H. B. Atwood, trust officer for Simmons First National Bank, produced a letter which he had received from Mrs. Martha Frances Grothe Lyche, a stepdaughter of N. F. Yarbrough, in which she said that her mother and stepfather did not want to be placed in a nursing home; that Mr. Yarbrough had always desired to live with the Luzaders, and that the Luzaders were giving him a good home. The introduction of the letter was objected to as hearsay, and the Chancellor reserved his ruling. He never did pass upon the admissibility of the evidence, but apparently did not consider it, since it is not mentioned in a rather lengthy opinion rendered by the trial court.
Mrs. Connie Haner testified emphatically that Yarbrough wanted to go to the home of the Luzaders in September, 1966, twice stating, “Oh, yes. He wanted to go there.” However, this testimony was a contradiction of earlier evidence given by this witness on direct examination. From the record:
“Q. Has he told others of the family, other members of the family, that he was willing or that he wanted to go live with them?
A. Yes. He had told different ones from time to time that he would like to live with them. He never did tell me. I was a widow or I guess I might have wound up with him.” | [
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DoNham, J.
Appellee has owned and has been in possession of certain lands in Mississippi county, Arkansas, for more than twenty-four years. These lands are within the St. Francis Levee District and are, therefore, subject to the levee taxes imposed by said district. The lands became delinquent for the taxes of the years 1926 to 1932, inclusive. The Levee Board started separate proceeding’s to foreclose the tax lien of the district for each of the first four years. The proceedings for these four years were consolidated and one decree entered covering the entire period. The Levee Board filed a separate suit to foreclose its lien for the taxes of the years 1930 to 1932, inclusive, one decree being taken for the entire period.
In 1937, the lands of appellee were sold by the Levee Board to appellant. No deed had been procured by the Levee Board under said foreclosure proceedings but the sales had been confirmed. On September 27, 1937, appellant appeared in the chancery court and requested the approval of a deed to the Levee Board in pursuance of said foreclosure decrees. The deed which appellant prayed that the court approve contained an order directing the issuance of a writ of assistance to place the Levee Board, or its purchaser, in possession. Appellee appeared through his solicitors and requested permission to intervene for the- purpose of setting up his exceptions to said foreclosure proceedings. This request was granted and appellee was given time in which to file his petition setting up his exceptions. Within the time allowed, he prepared and filed his petition and cross-complaint, setting up various reasons why said foreclosure decrees, the sales in pursuance thereof and all proceedings thereunder, were void and should be canceled and set aside as clouds upon his title.
In compliance with the law, appellee offered to pay appellant all sums which he'had-paid out as taxes, or otherwise, and which he was entitled to recover hack in case appellee succeeded in obtaining the relief prayed in his petition.
Specific allegations were set out in the petition of appellee to the effect that the mandatory provisions of the law with reference to the recording of the delinquent lists by the chancery clerk were, not complied- with, in that the record failed to carry the certificate of the clerk with the date of the recording, and that it also failed to show the clerk’s official seal. There were other allegations with reference to alleged defects in the record, such as the incorrect spelling* of the name of appellee, some of the records giving the name as “S. D. Ferrie” and others giving it as “S. D. Feeie. ” It was, also, alleged that the record for some of the years in question did not carry a signed notice to landowners; that for the year 1927 one-half of the tract of land involved was described as being in the wrong section, the record showing that the land was in section 7, instead of correctly showing it as being in section 9; that for the year 1928 the record showed that one-half of appellee’s land was in section 19, instead of correctly showing it as being in section 9. •
To all of these allegations contained in the intervention petition of appellee, the appellant answered, alleging that the St. Francis Levee District Board brought .foreclosure suits.against appellee’s lands for the unpaid taxes of the years 1926 to 1932, inclusive, after the collection books were properly opened and closed and delinquent lists filed and recorded for said years as re- qtiired by law. It was further alleged that if there were any defects in the proceedings-.-involving the return of the delinquent lists by the collector and the recording of same by the clerk, such defects were immaterial and did not make the decrees-and sales void, and that “ap-pellee is now cut off from raising any objection to the issuing of deeds to the St. Francis Levee District; that this is not a direct attack upon the decrees, but is a collateral attack and not brought within, proper time; that said decrees are now final and deeds should be issued to the Levee Board, and that appellee is barred by laches. ’ ’
Appellee filed an amendment to his' complaint, asking that Harvey Morris, chancery clerk, be made a party-defendant; and that the records of delinquent lists be corrected to show other and different dates as to filing, recording- and certifying by the clerk, alleging that these records are false. Morris was made a party to the suit and entered his appearance.
Appellee took many depositions for the purpose of varying dates shown by the record with reference to the filing of the delinquent lists by the collector of the district and their recording by the clerk. Appellant filed a motion to quash these depositions, alleging that they were offered for the purpose of varying- and changing permanent records in the clerk’s office, contrary to law. Upon a hearing on this motion, the court held that the depositions could not be considered for the purpose for which they were offered.
Upon a final hearing, the court rendered a decree in favor of appellee, holding that the foreclosure decrees and sales in pursuance thereof were void, because the clerk failed to record and certify the delinquent lists on or before January 1st, as required by law; and 'thát' the appellee should recover for the 1937 rents and should pay to the appellant the amounts he had paid for the land and for the taxes paid by him. Appellant prayed and was granted an appeal.
The trial court found,.quoting from the decree, “that it. is unnecessary to examine any of the contentions as to thé validity of the sales, except that concerning the allegation 'and proof regarding the failure of the chancery court clerk to record the list and to certify the same on or before the first day of January in the proper year as required by statute and td attach his official seal to the certificate; that the records show that the clerk failed to comply with the statute in the manner just mentioned and that for that reason the foreclosures and sales in question are void and should be canceled- as .clouds upon the title of intervener.”
The court thereupon ordered, adjudged and decreed that “the foreclosures and sales to the St. Francis Levee District and by the district to F. C. Douglas, involving delinquent taxes for the years of 1926, to 1932, inclusive, be, and the same are hereby, canceled, set aside and for naught held in so far as they affect the lands hereinbefore described, and that the title of S. D. Ferris in and to said lands be, and the same is hereby, quieted and confirmed against said St. Francis Levee .District and F. C. Douglas. ”
The'main question presented by the record is whether the proceedings to foreclose thq levee district’s liens for taxes were void for failure .to comply with certain provisions of the law with reference to recording the delinquent tax lists for the years 1926 to 1932, inclusive. As heretofore stated, it is contended by appellant that such failures as. are shown by the record with reference to -recording these delinquent tax lists are-immaterial and that -they do not render the foreclosure decrees and sales made in pursuance thereof, void, and that in any event-appelleq is now barred -from raising any objection by reason of the five-year statute of limitations. On the other hand, appellee contends that a failure on the part of the clerk of the chancery court to record said list and to subscribe upon the record of the same his certificate, over his signature and seal of office, within the time required by law, renders any proceeding to foreclose .the tax lien of the district void.
After providing for the recording of said lists on or before the first day of January next after the filing of same, act 455 of 1917, and act 15 of the Special Session of 1920, both provide as follows: “And next thereafter and on the same date the said clerk shall subscribe upon said record his certificate, over his signature and seal of office, to the effect that the foregoing delinquent list, as recorded, is a true and correct copy of said list as filed with him by said collector of said board of directors, and the date of such certificate shall be evidence that said list and notice were indorsed upon the record on that date. ’ ’
As to whether a failure to comply with this provision of the law is sufficient to set aside a tax sale, pertinent provisions of act 455 of 1917,. and.act 15 of the Special Session of 1920, are as follows: “Whenever the validity of any decree rendered in any action instituted for the enforcement of the collection of the alleged delinquent levee taxes due said district for the year 1917, or any subsequent year, and the penalty thereon, shall be brought into question in any judicial proceedings, it shall be competent and sufficient for the purpose of vacating said decree and canceling said sale, notwithstanding the proceedings may be a collateral attack on such decree, and notwithstanding the recitals of such decree, to show that the levee taxes, the collection of which was sought to be enforced by said decree, had in fact been paid before the date of the decree, or that the collector’s delinquent ifsf had not been verified or filed within the time prescribed ; or had not been recorded or certified withiii the time prescribed; provided, that the fact that such delinquent list was not verified or filed or recorded or certified within the time prescribed may be shown only'by evidence appearing on the face of the record of such delinquent lists kept by the clerk; provided, further, that no action shall be brought to- set aside any decree or cancel any sale on the ground that the taxes had already been paid unless such action be begun within five years next after the confirmation of such sale.” Section 11, act 455 of 1917, and § 12, act 15 of the Special Session of 1920.
In addition to the above-quoted provisions, § 18 of act 15 of the Special Session of 1920, provides that the provisions of said act are mandatory. Of "course, if failure to comply with, the requirements of the act with reference- to the certificate of the clerk is sufficient to vacate the decree to foreclose the. tax lien and to cancel the sale in pursuance thereof, then such failure is mandatory and jurisdictional. As'will be noted, both of said acts above referred to provide that “it shall be competent and sufficient for the purpose of vacating said decree and can-celling said sale, notwithstanding the proceeding’s may be a collateral attack on such decree, and notwithstanding the recitals of such decree, to show . . . that the collector’s delinquent list had not been verified or filed within the time prescribed; or had not been recorded or certified within the time prescribed.”
It seems that there is no escape from the conclusion that compliance with the provisions of said acts as to recording the delinquent tax lists and certifying the record is necessary to valid proceedings to foreclose the tax lien of the district. The trial court' specifically found that the chancery court clerk did not record and certify the delinquent lists for the years in question within the time and in the manner prescribed by law, and upon this finding, decreed that all foreclosure proceedings and sales had in pursuance thereof were void.
Our attention has been called to the construction we have placed upon act 534 of the Acts of 1921, same being a general act applying to road improvement districts, fencing districts, levee districts and drainage districts alike. This act requires the county collector to file with the chancery court clerk a duly, verified copy of the delinquent list by the second Monday in June, and further requires that the clerk file and record said list on or before July 1st, and also requires that the clerk attach his certificate to the recorded list. The act makes the certificate conclusive evidence that such list was filed and recorded as stated in the certificate. It is true that we have held that a failure to file such a delinquent list or to record and certify it within the time limit is not jurisdictional, and that improvement districts may proceed with foreclosure proceedings, notwithstanding such failure to file and record the delinquent list. Moore v. Long Prairie Levee District, 153 Ark. 85, 239 S. W. 380; Beasley v. Hornor, 173 Ark. 295, 292 S. W. 130; Miller v. Coleman et al., 192 Ark. 932, 96 S. W. 2d 449.
Act 534 of the Acts of 1921 contains no provision that failure by the collector to file the delinquent list within the time required by law shall be sufficient to vacate a decree foreclosing the tax lien and to cancel a sale in pursuance thereof. Nor does the act contain any provision that failure by the clerk to record and certify the delinquent list shall be sufficient to set aside foreclosure proceedings to enforce the lien of the district for taxes. Therefore, we have held that the provisions of said act are not mandatory. Unlike this act, act 455 of the Acts of 1917, and act 15 of the Special Acts of 1920, both contain provisions that it shall be sufficient for the purpose of vacating a foreclosure decree and cancelling the sale in pursuance thereof to show “that the collector’s delinquent list had not been verified or filed within the time prescribed; or had not been recorded or certified within the time prescribed.” In addition to these provisions, § 18 of act 15 of the Acts of 1920, provides: “The provisions of this act are mandatory.” In other words, the provisions of acts applicable in the instant case are clearly mandatory and jurisdictional, whereas the provisions of act 534 of 1921 are not mandatory or jurisdictional.
Section 12 of said act 15, and § 11 of said act 455, provide that “the fact that such delinquent list was not verified or filed or recorded or certified within the time prescribed may be shown only by evidence appearing' on' the face of the record of such delinquent lists kept by the clerk.”
In its finding that the chancery clerk had not complied with the law with reference to recording said delinquent lists and'attaching his certificate thereto, the court excluded all testimony except that shown upon the face of the record. Testimony was introduced by way of /depositions of several witnesses to the effect that said lists were never recorded before the expiration of the time provided by law. All this testimony was excluded because the statute provides that a failure to record and certify the list within the time required by the statute may be shown only by evidence appearing on the face of the record of such delinquent lists kept by the clerk. It is not necessary for us to decide whether the court committed error in excluding this evidence. The trial court did not hold that the record could not be corrected when' vitiated by fraud.
It is contended by appellant that appellee is barred by limitations. We know of no statute of limitations that would bar appellee from maintaining his action to cancel the foreclosure proceedings and deeds issued in pursuance thereof as clouds upon his title. We have a five-year statute of limitations providing that “all actions against the purchaser, his heirs or assigns, for the recovery of lands sold at judicial sales, shall be brought within five years after the date of such sale, and not thereafter; saving to minors and persons of unsound mind the period of three years after such disability shall have been removed.” Section 8924, Pope’s Digest.
This court has- held, however, that this statute does not apply as against one in possession of land in controversy. Phillips v. Jones, 79 Ark. 100, 95 S. W. 964, 9 Ann. Cas. 131.
This court has held that this section of the statute does not apply to a void sale by an improvement district. Dupree v. Williams, 172 Ark. 979, 291 S. W. 84. This court also held in said last above case that § 5644 of Crawford & Moses ’ Digest, limiting the time for redemp-tions from sales for improvement taxes to five years, did not apply to void sales by improvement districts.
In the case of Wildman v. Endfield, 174 Ark. 1005, 298 S. W. 196, this court said: ‘ ‘ This court has decided-several times that the two-year statute of limitations (§ 13883, Pope’s Digest, relied on by appellant in this case, has no application as to jurisdictional matters or vital defects in the proceedings relating to a tax sale, but only to irregularities.”
Section 11 of act 455, Acts of 1917, and § 12, act 15 of the Special Session of 1920, provide: ‘ ‘ That no action shall be brought to set aside any decree or cancel any sale on the ground that the taxes had already been paid, unless such action be begun within five years next after the confirmation of such sale.”
It is clearly seen that this limitation does not apply to a case wherein the sale is shown to be void because of non-compliance with mandatory provisions of the law.
As heretofore stated, the record shows that appellee had owned* and had been in possession of the lands involved in this case for more than twenty-four years. He was in possession of said lands at the time of the filing of his intervention and according to the record is still in possession, except for a semi-receivership proceeding under which the solicitors of the appellant and appellee are renting the lands and collecting'the rents and profits. The decrees foreclosing the liens of the levee district being void, because of failure on the part of the chancery clerk to comply with mandatory provisions of the statute, appellee had a right to attack the foreclosure proceedings and ask for a cancellation of deeds issued in pursuance thereof at any time for the purpose of having- said decrees and deeds canceled as clouds upon his title.
We agree with the trial court that the decrees of the chancery court foreclosing the district’s tax liens and all deeds issued in pursuance thereof are void because of failure on the part of the chancery clerk to comply with mandatory provisions of the law in regard to recording and certifying the delinquent tax lists. We further adopt the view of the court that failures of said clerk in these respects, sufficient to cancel said foreclosure proceedings and deeds issued in pursuance thereof, are shown upon the face of the record.
The trial court decreed that appellant was entitled to recover of and from the appellee the sum of $100.42, this being the difference between the sum total of the amounts paid the levee district by him for deed- which he had received from the Levee Board, plus the, 1937, state and county taxes, also plus the sum of $40 drainage taxes for the year 1937 paid by appellant. The trial court decreed that appellant was entitled to judgment against appellee for the sum of $100.42, this being’ the excess of amounts paid out by him as consideration for the deed executed by the Levee Board and for taxes over and above the amount of rents he had received, this net amount to bear interest at the rate of 10 per cent, per annum from the date of the decree. A lien was also decreed upon said lands-to secure the payment of the amount due appellant. The court retained jurisdiction of the cause for the'purpose of winding up the receivership hereinabove referred to and to enforce the written agreement existing between the parties with reference to repairs, improvements and rents. The decree was otherwise by agreement of the parties made final and appealable.
No error appearing of record, the decree of the court is affirmed.
Smith, MoHaney and Bakeb, JJ., dissent. | [
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George Howard, Jr., Judge.
The question presented is whether the finding of the Agency — that appellant quit a permanent job for a temporary one was not for good cause connected with the job, hence, appellant was not entitled to unemployment benefits — is supported by substantial evidence.
Appellant, in August, 1977, accompanied her husband to Washington, D.C. where her husband would be enrolled in school, as a full time student, during the 1977-78 school term. The term was scheduled to end officially in May, 1978, at which time, appellant and her husband were scheduled to return to Little Rock where appellant’s husband would occupy a position of employment awaiting his return. At the time appellant left Little Rock for Washington, D.C., she was unemployed and receiving unemployment benefits.
Upon arriving in Washington, appellant promptly obtained employment at the Falls Church Animal Hospital in Falls Church, Virginia. Appellant advised her employer that her husband was attending school in Washington for the duration of the current term and that she would have to terminate her status as an employee in May, 1978, and return to Little Rock with her husband.
In January, 1978, appellant left the job at the animal hospital and accepted employment as a receptionist with Congressman Jim Guy Tucker in Washington, D.C. The new position afforded appellant a substantial salary increase — paying at least 50% more than what she was receiving at the animal hospital. The receptionist position was temporary since it would terminate in the middle of June, 1978.
In June, 1978, appellant returned to Little Rock and entered the labor market immediately in search of employment.
On June 28, 1978, appellant filed her claim for unemployment benefits. Appellant advised the Agency that she terminated her job at the animal hospital for the following reason:
I was offered a higher paying job, also an offer of better experience for the future and more contacts for a job in Arkansas.
The Agency concluded, in relying upon Section 5 (a) of Ark. Stat. Ann. § 81-1106 (Repl. 1976):
You quit your permanent job with the above employer [Falls Church Animal Hospital] to accept a temporary position with Congressman Jim Guy Tucker’s office. Although you may have had good personal reasons for quitting, you have not shown good cause connected with the work.
Section 5(a) provides:
... an individual shall be disqualified for benefits:
(a) If he voluntarily and without good cause con nected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least 30 days of paid work.
Appellant was disqualified for benefits until she had at least 30 days of covered employment.
The holding of the Agency was affirmed by the Appeals Tribunal, the Board of Review and the Circuit Court of Pulaski County.
We are persuaded that the finding of the appellee that appellant quit “a permanent job” with Falls Church Animal Hospital to accept a ‘ ‘temporary position with Congressman Jim Guy Tucker’s office,” is not supported by substantial evidence and consequently, we reverse.
Appellant testified that when she made application for employment at Falls Church Animal Hospital, she advised management that she would be in the Washington, D.C., area for the duration of the 1977-78 school term which would end in May, 1978; and that she would return to Little Rock, at that time, with her husband. She stated that her employer recognized that she was only a temporary employee. This, testimony has not been contradicted.
We have searched this record carefully in an effort to determine the basis of appellee’s finding that appellant’s employment with Falls Church Animal Hospital was ‘‘permanent. ’ ’ While it is clear that the position that the appellant occupied may be characterized as permanent in scope and range, the work arrangement between appellant and her employer was temporary in all respects. Appellant testified that the job offer from Congressman Tucker was temporary. The Agency also found that the employment with Mr. Tucker was temporary in scope and range.
During oral argument, counsel for appellee conceded, in a hypothetical situation, that if appellant’s employment with the animal hospital had been permanent and appellant quit the permanent position in order to accept another per manent position and later became unemployed, appellant would be eligible to receive benefits. In other words, if the position with Congresssman Tucker had been characterized as permanent, under the Agency’s reasoning, appellant would have qualified for benefits because she left a permanent job in order to accept another permanent position.
While it is understandable, and, indeed, logical, why an employee who quits a permanent job in order to accept a temporary one is disentitled to benefits when the temporary employment ceases, we are not persuaded that the same qualifying rule is applicable when an employee leaves a temporary assignment to accept another temporary position which affords more pay.
We perceive that the posture taken by appellee would impose a penalty on an employee who desires to transfer to another job in order to improve his financial position and a premium extended to an employee who is satisfied with some degree of permanence in his employment status at less pay. We cannot visualize such a policy as being in harmony with the legislative purpose of the Employment Security Act as á means of protection against the hazards of economic life.
Appellee has cited Harris v. Daniels, et al, 263 Ark. 897, 567 S.W. 2d 954 (1978) in support of its posture in this proceeding. Harris has no application here. In Harris, the claimant accepted what started out as a temporary job, but ultimately became permanent and claimant quit his job in order to look for other employment.
Accordingly, we reverse the Circuit Court of Pulaski County with directions to enter an order reversing the Agency.
Reversed and remanded. | [
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John A. Fogleman, Justice.
During the performance of a contract for highway repairs, the appellant, Dickerson Construction Company, Inc., constructed an earthen dam or “haul road” across a drainage ditch adjoining the appellee’s property. The purpose of this “haul road” was to allow the appellant’s equipment to traverse the ditch. During the period from Friday afternoon, July 8, 1977, to Sunday afternoon, July 10, 1977, a substantial rainfall occurred and this road acted as a dam, causing water to back up in the ditch, ultimately resulting in the inundation of approximately 190 acres of the appellee’s land in varying depths. The water began receding Sunday afternoon, after the dam was cut, and receded totally sometime thereafter. There was a soybean crop on the flooded land. It had been planted approximately June 1, 1977 and had reached a state of growth described as “knee-high.”
The appellee, John Dozier, filed suit against the appellant and sought to establish that the yield of his soybean crop had been significantly reduced by the flooding of the 190 acres, caused by the negligence of the appellant. The appellant’s motion for a directed verdict at the conclusion of all the evidence was denied and the jury returned a verdict for the appellee in the amount of $11,500.00. The appellant’s subsequent motions for a mistrial and for a new trial were denied and this appeal followed.
The appellant alleges the following two points for reversal:
I
THE JURY WAS IMPROPERLY INSTRUCTED AS TO THE MEASURE OF DAMAGES, AND APPELLANT’S MOTION FOR DIRECTED VERDICT SHOULD HAVE BEEN GRANTED BECAUSE OF FAILURE OF PLAINTIFF TO OFFER EVIDENCE ON WHICH THE PROPER MEASURE MIGHT BE BASED.
II
THERE WAS MISCONDUCT OF THE JURY, IN THAT IN THE COURSE OF ITS DELIBERATIONS THE JURY MADE USE OF A POSTER, OR PLACARD, NOT ADMITTED IN EVIDENCE, PREPARED BY APPELLEE AND SETTING OUT APPELLEE’S THEORY OF DAMAGES.
The second point has merit and requires that the case be reversed and remanded for a new trial.
I
Although not necessary for our disposition of this case, the issue of the measure of damages must be discussed, because the same question will almost certainly arise on retrial. Even though we are reversing the judgment on another point, we will treat them in the order they were stated, because the background pertains to both points. Appellee maintained records of the 1977 production of his farm and from those records sought to establish an average reduction in the bushels per acre production of the 190 acres which had been affected. One of these average reductions was based on a comparison to the production on the remainder of the farm as a whole, while the second was based on a comparison to the production achieved on a 55 acre bottomland field, which the appellee testified was more fertile than hillside land and was the type of land most comparable to that flooded. By multiplying that result by the net price per bushel of soybeans (stipulated price of $5.50, less the $.10 per bushel hauling fee), the appellee arrived at the monetary damages allegedly suffered. Use of the 55 acre comparison resulted in damages of $15,708.06, while use of the other figure resulted in damages of $9,695.70. These computations were placed on charts by the appellee’s attorneys, with the higher figure on chart 1 and the lower on chart 2. Although neither was introduced into evidence, chart 1 was used during direct examination of the appellee and during closing argument by the appellee’s attorney.
At the close of all the evidence, the appellant moved for a directed verdict, alleging that the proper measure of damages was the rental value of the land that was affected and that, since there had been no evidence of such rental value, there was no basis for a recovery by the appellee. This motion was denied.
The appellant objected to the court’s instruction on the measure of damages, contending that rental value of the land was the only proper measure of damages. The instruction read as follows:
If you find for John Dozier on the question of liability against Dickerson Construction Company, you must then fix the amount of money which will reasonably and fairly compensate him for the following elements of damages sustained by him, if proximately caused by the negligence of the said Dickerson Construction Company. The difference in the fair market value between the crop that the land would otherwise have produced and the crop that was actually produced, less the difference between what it would have cost to have produced, harvested and marketed an undamaged crop and what it would cost to produce, harvest and market the actual crop. Whether these elements of damages have been proved by the evidence is for you to determine.
The appellant contends that the appellee’s soybeans had not reached a sufficient stage of growth to have a value and that in the absence of such proof, the correct measure of damages would be the rental value of the property, citing Adams v. Adams, 228 Ark. 741, 310 S.W. 2d 813.
The appellant places a great deal of reliance on the following testimony of J. O. Hill, the County Agent of Lee County, who had observed the acreage in question from the air on July 11, and who had made an inspection of the area on October 28, prior to harvesting:
Q. What is the earliest date that beans are planted in Lee County, Mr. Hill?
A. The earliest planting is the last week in April.
Q. If you assume that the field was planted that early, would the crops have any market as of July 11th of the same year? Assuming its very earliest date.
A. The only thing I can think of is as far as use is concerned is you could cut it for hay, but no beans at this point.
Q. Even if you were to assume that it had maximum maturity, having been planted in the earliest period of time, April? It would have no market value on the date of this occurrence?
A. Not as beans. By the same token it is too late to plant another crop,
We feel that the appellant’s reliance on Adams v. Adams, supra, is misplaced because there was no evidence presented in that case that the crops involved had reached a stage of maturity sufficient either to have a market value or allow a reasonably certain estimate of the projected production. In light of testimony elicited from Mr. Hill during questioning by the appellee’s attorney, we find this case to be distinguishable from Adams.
Q. . . . but you have got your crop now in the middle of July and are you then in your opinion in a position to say well you have got a pretty good reasonable guess as to the production on it?
A. Well, you would know whether or not you had a stand. You would know whether or not you had good weed control going for you and also you would know whether your beans were up to normal size or what would be expected at this time, with a knee high type of a bean, and whether they were drought stressed and looking poor or whether you had a promising looking crop.
Q. In other words you have probably reached a stage where you could make a pretty good guess at it?
A. I think it would be within reason to state, you could say that things were either deteriorating and falling apart or you had something pretty good coming on.
* * *
Q. Now, what I am trying to say is that this is based upon your experience, your judgment, exercising your judgment. Can you not and can not most any competent farmer in the middle of July reasonably estimate his production? I understand that things are going to vary and happen and so forth, but over a long period of time, based upon your experience you get a pretty good idea about what your production is going to be, don’t you? A. I think you are right.
In Faires v. Dupree, 210 Ark. 797, 197 S.W. 2d 735, although we found that the plaintiff was not entitled to an award for damages to crops because there was just a vague suggestion that financial loss had occurred and there was no evidence presented that the crop had even been planted, we said:
* * * A rule is that where crops are so immature when destroyed as to have no market value, the measure of the damage is that for which the land would have rented. St. L. I. M. & S. R. Co. v. Saunders, 85 Ark. 111, 107 S.W. 194: Brown v. Arkebauer, 182 Ark. 354, 31 S.W. 2d 530; but if the crop has grown to a point where it can be said with reasonable certainty that a stated production would result, then damage is the value of such crop. Crumbley v. Guthrie, 207 Ark. 875, 183 S.W. 2d 47.
Although the testimony of Mr. Hill could be considered equivocal, we cannot say that there was no substantial evidence that the beans had reached a state where a reasonable estimate could be made of the expected produc tion. A close parallel can be drawn between the facts in this case and those present in Crumbley v. Guthrie, 207 Ark. 875, 183 S.W. 2d 47, cited in Faires v. Dupree, supra. In that case, cattle owned by the defendant had been permitted to run at large in the plaintiff’s strawberry patch, resulting in a drastic decrease in expected yield. The damage to the strawberries occurred before the fruit had matured. We affirmed the award of damages, stating that “there is proof that sufficient progress had been made to promise a production much greater than that realized had the trespass not occurred,” relying on testimony from appraisers that from the appearance of the plants they were able to make a fairly accurate estimate of what the actual loss had been.
The actual value of a crop at the time of its destruction is to be ascertained from consideration of the circumstances existing at the time of its destruction, as well as at any time before trial, favoring or rendering doubtful the conclusion that it would attain to a more valuable condition and from consideration of the hazards and expenses incident to the process of supposed growth or appreciation. St. Louis, I.M. & S. Ry. Co. v. Hoshall, 82 Ark. 387, 102 S.W. 207. The rule is the same as to a crop damaged, if the jury believes that otherwise it would have matured, except that the costs of gathering and marketing must also be deducted. Missouri Pac. R. Co. v. Nichols, 170 Ark. 1194, 279 S.W. 354. The jury is permitted to find the actual value of the crop at the time it was damaged by considering its probable value at maturity, less the difference between the cost of production based on a full or probable crop, and to deduct from such production the cost thereof. W. B. Bynum Cooperage Co. v. Coulter, 219 Ark. 818, 244 S.W. 2d 955. See AMI, Civil, 2225.
While the damages recoverable cannot exceed the actual value of the crops at the date of the injury to them, plus legal interest, the jury, in arriving at that value, should consider the probable value at maturity, if they believe from the evidence that the crops would have matured, but for the actions of defendant. Railway Co. v. Lyman, 57 Ark. 512, 22 S.W. 170; Missouri Pac. R. Co. v. Nichols, supra.
Whether the soybeans had matured sufficiently to have a market value or to be susceptible to a reasonable estimate of the expected production at the time of the flooding of the appellee’s land thus became a question for the jury and unless reasonable minds could not differ on the question, the trial judge did not err in refusing to grant the appellant’s motion for a directed verdict. In the determination of whether there is substantial evidence to preclude the direction of a verdict, the judge must view the testimony and all reasonable inferences in the light most favorable to the party against whom the verdict is sought. Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532; Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399 S.W. 2d 658; Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307. When we view the evidence in the light most favorable to the appellee, and draw all reasonable inferences therefrom, we cannot say that the trial judge erred in denying the appellant’s motion for a directed verdict at the conclusion of all the evidence.
Because the question of the maturity of the crop was for the jury, the appellant is correct in its contention that the binding instruction as to the measure of damages was erroneous. If the jury found that the crops were not sufficiently mature, then the measure of damages would be the rental value of the land. Faires v. Dupree, supra.
Appellant objected to the instruction given merely on. the basis that the wrong measure of damages was stated and by offering an alternate instruction that damages would be limited to the rental value of the land overflowed. This instruction was as defective as the one given. Neither recognized that there was an issue of fact which controlled the measure of damages. If the jury had found that the crop had reached that level of maturity that would justify a finding that it could be said that a stated production would result, then the measure of damages would have been the difference in the value of the crop that would have been produced and that actually produced, taking into account any difference in the cost of production. If the jury found otherwise, then the measure of damages was the rental value of the land.
A proper objection to a jury instruction must specify a correct ground and give the trial judge an opportunity to instruct the jury properly, and an objection lacking sufficient specificity is not sufficient. Baughman v. State, 265 Ark. 869, 582 S.W. 2d 4 (1979). Since the alternate instruction offered was not a correct instruction, the objection was not sufficient to justify reversal.
II
After the instructions were given, the jury retired to deliberate on the verdict. Sometime thereafter, a member of the jury requested of Deputy Sheriff Robert Guynes, who had taken the jury to the jury room, that he bring “the chart that was used with the beans” into the jury room. Guynes entered the courtroom, approached the appellee’s attorneys, who were seated at the counsel table, and informed them of the juror’s request. Guynes was given chart 1, containing the higher damage figures, which he delivered to the juror who had made the request. The jury returned its verdict approximately ten minutes later.
Neither the trial judge nor the appellant’s attorneys were present when this transpired and they were not aware of either the request made by the juror or Deputy Guynes’ actions. After learning what had occurred, the attorneys for the appellant moved for a mistrial. A hearing was held in which Deputy Guynes testified and the attorneys for both parties made statements. The motion was denied, the judge stating that he did not see any relation between the amount of damages on the chart and the verdict and that he felt it would have been proper to allow the jurors to enter the courtroom and observe the same figures displayed on a blackboard. A motion for a new trial on the same ground was also denied, after a hearing. It is conceded that all parties concerned acted in complete good faith. The trial judge stated that, in all probability, he would have granted a request by the jury for the chart.
Whether to allow the jury to have access to documents introduced into evidence, jury instructions or any other item or information, lies within the wide latitude of discretion vested in the trial judge. Rose v. King, 170 Ark. 209, 279 S.W. 373, Dodwell v. Mound City Sawmill Co., 90 Ark. 287, 119 S.W. 262, and the action of the trial judge will not be overturned unless there has been a manifest abuse of that discretion. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74, and cases cited therein. The trial judge is also vested with a considerable latitude of discretion in acting on a motion for mistrial or a motion for a new trial, and his exercise of that discretion will not be reversed in the absence of manifest abuse. Henslee v. Kennedy, 262 Ark. 198, 555 S.W. 2d 937; General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W. 2d 602; Security Ins. Co. v. Owen, 255 Ark. 526, 501 S.W. 2d 229; Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690.
The procedure to be followed when a jury, which has retired for deliberation, requests additional information or clarification of some point is established by Ark. Stat. Ann. § 27-1734 (Repl. 1962). The statute reads:
Further instruction. — After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of or after notice to the parties or their counsel.
An identical procedure to be followed in criminal trials has been held to be mandatory. Ark. Stat. Ann. § 43-2139 (Repl. 1977); Williams v. State, 264 Ark. 77, 568 S.W. 2d 30 (1978); Golf v. State, 261 Ark. 885, 552 S.W. 2d 326; Jackson v. State, 256 Ark. 406, 507 S.W. 2d 705. The considerations in those cases are just as relevant in this case. The appellant’s attorneys had no opportunity to object to the jury receiving a chart which, in essence, summarized the appellee’s closing argument relating to damages. There was no opportunity for the appellant’s attorneys to request that an instruction be given which would limit the effect of the chart upon the jury’s deliberation or remind the jury that the chart was not evidence. The fact that the chart had not been admitted into evidence is itself of no small significance. Ark. Stat. Ann. § 43-2138 (Repl. 1977) provides: “[u]pon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause.” We decline, however, to hold that allowing the jury to have access to something which has not been admitted into evidence will necessarily, without more, constitute an abuse of discretion. Other jurisdictions prohibit the jury access to anything which has not been in- traduced into evidence. See Lyon v. Bush, 49 Hawaii 116, 412 P. 662 (1966); Keeney v. Commonwealth, 345 S.W. 2d 481 (Ky., 1961); Newburgh Urban Renewal Agency v. Williams, 79 Misc. 2d 991, 361 N.Y.S. 2d 842 (1974); Gertz v. Bass, 59 Ill. App. 2d 180, 208 N.E. 2d 113 (1965). Although the amount of time spent in deliberations is not in and of itself indicative of possible prejudice or lack of fair trial, the fact that the jury returned its verdict only ten minutes after receiving the chart, is a factor to consider in a determination of whether the appellant’s cause may have been prejudiced.
Although it dealt with a criminal trial in which the jury foreman asked the bailiff if the fact that one of the jurors was acquainted with the primary prosecution witness would have any bearing on the deliberations of the jury, some of the language in Williams v. State, supra, is particularly pertinent to this case:
It has been held that failure to comply with such mandatory provision is prejudicial as a matter of law unless it is shown that no prejudice resulted or could have resulted from the non-compliance. . . It has also been held that lack of prejudice must be shown by clear and convincing evidence and that any doubt on the issue must be resolved in favor of the accused. . .
To begin with, we presume that any error is prejudicial unless we can say with confidence that it is not.. . One reason for placing such a heavy burden upon the state is the necessity for preserving the sanctity of the jury deliberations. . . . Another is because the conduct of the court officials in performing their duties and following the procedures prescribed for them should be such as to leave no possible suspicion of acting either pre-judicially or favorably to an accused. . .
The most difficult question is that of prejudice. We cannot say that lack of prejudice is manifest. The state actually concedes that it had the burden of proving that there was no prejudice. . . If the matter had been called to the attention of the trial court, the judge could have cautioned the jury that it must confine its consideration of the case to the evidence before it, disregarding any knowledge or information from any other source, save common knowledge. . . . [Citations omitted.]
In light of the facts of this case as set out in this opinion, we cannot say that the lack of prejudice to the appellant was manifest, because appellant had no opportunity to object or to ask the court to give the jury a cautionary instruction. Because of this, we find that the trial judge abused his discretion in denying the appellant’s motions for a mistrial and a new trial.
The judgment is reversed and the cause remanded for a new trial.
We agree. Harris, C.J., Holt and Purtle, JJ. | [
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Frank Holt, Justice.
This appeal is from the refusal of the chancellor to vacate and set aside a decree of divorce which was granted to appellee by default.
Appellant alleged in her motion to vacate the decree that she was prohibited by unavoidable circumstances from appearing and defending, and, further, that she had a meritorious defense to the complaint. We find no merit in either contention.
Appellant and appellee were married in 1958 and were separated in 1963. On January 18, 1968, the appellee filed suit for divorce against the appellant, alleging, inter alia, the statutory ground of three-year separation. On that date an attorney ad litem was appointed to notify appellant, a nonresident, and the requisite warning order was issued. The attorney ad litem notified her by certified mail of the pendency of the lawsuit. He enclosed a copy of the complaint; advised her she had thirty days to defend the action to avoid a default judgment; that she should engage an attorney immediately, and that he could not represent her. He received a return receipt, dated February 5, 1968, from appellant. Next, he received from her a letter dated February 19, 1968, wherein she acknowledged receipt of the notice, stated that she was seeking legal advice and desired some additional time to get “necessary information and advice” and after that, she would decide what she should do. The attorney ad litem included the return receipt and her letter in Ms reports to the court. Nothing further was heard from her and on February 29 the chancery court granted appellee a divorce based moon three-years separation. On March 26, 1968, appellant filed her motion to vacate this decree. Upon a hearing, she testified that she had sought advice from an attorney in the state of Washington, where she lives, and that he had furnished her the name of a local Arkansas attorney with whom she communicated; that he advised he was unable to represent her and furnished two other names. She wrote to one of them who replied that he could not represent her and, further, that a divorce had already been granted. Subsequently her present counsel filed this motion to vacate the divorce decree.
It is within the discretion of the trial court to set aside a default judgment upon the showing of excusable neglect, unavoidable casualty, or other just cause which prevents a party from appearing or defending. Ark. Stat. Ann. § 29-401 (Repl. 1962). Appellant relied upon this statute and argues that the evidence in this case brings her within its provisions. We cannot agree.
Appellee complied with all the requirements of outlaws in securing his divorce. Appellant had 24 days notice before rendition of the final decree. During this time she actually consulted and communicated with legal counsel. She made no appearance and no pleading was filed in the case until almost one month after the decree was rendered. Where one has notice of the pendency of an action for divorce and fails to appear and defend, a motion to vacate the decree will be denied where there is negligence or a lack of diligence shown. Gaines v. Gaines, 187 Ark. 935, 63 S.W. 2d 333 (1933); Hagen v. Hagen, 207 Ark. 1007, 183 S.W. 2d 785 (1944); Sariego v. Sariego, 231 Ark. 35, 328 S.W. 2d 136 (1959). In Gaines we upheld the refusal of the trial court to vacate the decree where the appellant had only 7 days’ notice of the pendency of the action. In Hagen, the wife, upon receiving notice to defend a divorce action against her, replied that she desired to defend. However, during the 23-day interim she took no further action. The chancellor granted her motion to vacate the decree. Iu reversing, we held that she had, ample notice of the pendency of the action and was negligent in not defending it. In the case at bar, appellant had sufficient notice and ample time to appear and defend the action and her failure to do so was negligence and a lack of legal diligence.
Furthermore, at the hearing of her motion to vacate appellant agreed and it was stipulated that she and appellee had lived separate and apart for more than three consecutive years. A divorce under this section [§ 34-1202 (7) (Repl. 1962)], upon proper proof, is mandatory upon the suit of either party, regardless of what caused the separation or who was at fault. Brooks v. Brooks, 201 Ark. 14, 143 S.W. 2d 1098 (1940); Mohr v. Mohr, 214 Ark. 607, 215 S.W. 2d 1020 (1948).
However, when a. divorce is granted upon threevears separation, the question who is the injured spouse is then considered in the settlement of property rights and the question of alimony. Jones v. Jones, 199 Ark. 1000, 137 S.W. 2d 238 (1940). Therefore, appellant argues that even though the divorce is valid, she has a meritorious defense as an injured party and is entitled to a hearing on the question of property rights, alimony and attorney’s fees. Appellant, who became a naturalized citizen in 1957, is 51 years of age, in good health and is gainfully employed as a registered nurse with an income of approximately $6,000 per year. Appellee is a non-commissioned officer in the military service. There are no children.
In 1963, following their separation, a comprehensive and detailed written property settlement was drafted by legal counsel and signed by appellant and appellee. This occurred while they were stationed in Germany, her native country, on military duty. The settlement recites that she speaks English fluently and has no difficulty in reading and understanding the English language. Further, that she was completely advised, “from the attorney of mv own selection.” During the next four years, appellee performed his agreed obligations which were completely fulfilled in 1967. Appellant accepted all the benefits. Now it is asserted that it was improper to consider and insert this instrument into the default decree. However, it is expressly agreed in this written instrument that “the terms of this agreement will be entered as part of any decree entered” in a divorce proceeding. Even if we should exclude the property settlement, which appears to meet the test of fairness and reasonableness, we are of the view that appellant is not an injured spouse in this action. Certainly, we cannot say there was an abuse of discretion by the chancellor in refusing to vacate and set aside the default decree of divorce in the case at bar.
Affirmed.
Byrd, J., not participating. | [
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Baker, J.
Tire indictment in tins case by the grand jury of Garland county was against Joe Anderson, Lucille Anderson, Alfred (Png) Dickson, and Clarence (Bill) Johnson charging the crime of murder in the first degree. It was charged that the four of them entered into a conspiracy by which they agreed with each other to commit the crime of robbery upon one Eldon Cooley, and that in furtherance of this design and while in pursuance thereof one of the defendants, the particular one being unknown to the grand jury, killed and murdered the said Eldon ‘Cooley by shooting him.
Joe Anderson and Lucille Anderson were tried together and both convicted. Upon an appeal decided January 30, 1939, this court affirmed the conviction of Joe Anderson, but reversed and remanded for a new trial the case as against Lucille Anderson. Anderson v. State, ante p. 600, 124 S. W. 2d 216.
Upon this appeal by Dickson and Johnson the questions are not exactly identical with those in the Anderson Case, supra. It was there urged particularly that the confessions made by Dickson and Johnson were not properly admissible in evidence against Anderson and his wife, Lucille Anderson, but it was held under the facts presented that there was no prejudicial error as to Joe Anderson and his conviction was affirmed. Upon this particular case, upon trial in the circuit court, both of the defendants were found guilty of murder in the first degree and punishment in each case was death.
The appellants have furnished us with an elaborate argument and contention in which they insist a reversal in each of these cases is justified. The attorney general has prepared a much more elaborate abstract of the testimony, and we think that the issues involved upon this appeal have been, by both appellants and appellee, forcefully presented for our consideration. It may be said that there are only two propositions of sufficient importance to justify comment. The first is that the appellants contend that the evidence is insufficient to sustain a conviction. The second question is somewhat unusual, that is to say, that the appellants contend that even though it may he determined that the evidence was sufficient to show a conspiracy to rob Eldon Cooley, the conspiracy ended and its purposes had been fully consummated prior to the time Cooley was hilled, and that therefore, to justify a conviction of murder in the first degree the burden was upon the state to prove that these appellants participated in the murder. Both of these propositions are questions of fact and may be settled in determining the sufficiency of evidence.
For the reason that most of the facts are stated in the Anderson Case, supra, only such of them will be repeated as may be deemed necessary to state the issues upon the appeal and to preserve the continuity of such facts as must be of controlling effect.
Each of the appellants testified in the circuit court that he had prior to the time of his trial made a voluntary statement which had been offered in evidence without objection. The said statement made by each was offered against the other upon a showing that it had been reduced to writing and read in the presence of both of them and that neither questioned the accuracy of either statement. They only claimed that explanations should be made of certain matters set out in the statements given. It should be said, however, in his testimony appellant Johnson asserted that some of the matters in his signed statement were not true and he said that the reason therefor was the fact that he was so uneducated or illiterate as to be unable to “follow through” when the statement was read to him and the further fact that he was scared or frightened.. Both of these defendants testified in the case and went into minute details in explanation of all matters set forth in their respective statements and the statements given by the other, as well as explanations, corrections or denials of the testimony of other witnesses.
Without resorting to the well known rule that the appellee has the right upon appeal to have the most favorable conclusion of which the evidence may he susceptible to sustain the verdict and judgment of the court, it may be here said that it is without substantial dispute that Joe Anderson, who had never lived in or around Hot Springs, and was unacquainted with local conditions there, reached the home of appellant Johnson, who lived in the country five or six miles from the business district of Hot Spring's, about midnight of Tuesday, September 6, 1938. On Wednesday Johnson and Anderson visited the business district of the city. Johnson was in one of the Steuart stores. ' Anderson, if not in the store, was at or near the front of it some time during the day. On Thursday morning, perhaps around eight or nine o’clock, Anderson and Johnson visited Dickson, who was living with one of his.sisters in Hot Springs. He was found to be at work moving some old lumber, in the yard. When he had finished, the three of them talked a little while before Dickson went into the bath room, into which Dickson was followed by the other two. All three of them testified about what occurred on that visit. Without- giving conclusions as to more material matters resort will be had to evidence of witnesses.
The cases upon appeal were tried immediately following the trial and conviction óf Anderson and his wife, and Anderson was called in this case to testify on behalf of the state. He said at the time he was introduced by Johnson to Dickson, Johnson assured him Dickson was a good man .to do business with. It is argued by appellants.that this remark had reference to the fact that Anderson had offered to furnish money to enable Johnson and Dickson to open a dance hall and beer parlor combined, and that the parties were discussing this matter of business and the remark was applicable to it. Anderson said they were discussing “getting money. ’ ’ When asked to explain what he meant by ‘ ‘ getting money, ’ ’ and if they meant “stick-ups” or robberies, he said that was the idea.
He asked about large chain stores in that community and said that Dickson told him of two chain stores opera ting in Hot Spiings. One being Jett’s and tlie other Steuart’s. While Dickson does not deny that this conversation took place regarding the large chain stores., he made his explanation upon the trial saying that the information given Anderson was in response to an idle or apparently disinterested question made by Anderson, and without knowing that Anderson was seeking information to perpetrate a robbery.
All of these matters were gone into by testimony by the three parties who knew about it. Explanations were duly given. The arguments presented upon these matters assumes the correctness of appellants’ theory, and, therefore, the insufficiency of proof in that regard. Much other evidence as to surrounding conditions and circumstances was introduced for consideration of the jury. We think the jury may well have reached a decision contrary to the contention appellants make.
Johnson and Anderson both testified that they had served time in the United States prison' together, that there was an understanding, if not agreement, that when Anderson had served his time, Johnson having been released first, Anderson would visit' him, and the visit made was in accordance with that understanding.
At the time that Cooley, the collector for Steuart’s chain stores, reached a particular store, in taking up the day’s receipts, Johnson and Anderson were near by. Johnson’s explanation is that Anderson had been expecting mail and had been to the postoffice two or three times during the day preceding and the day on which the murder was committed. Johnson’s- own statement is to the effect thát Anderson had said a Mr. Wilson who brought him to the community, would return that day and bring some extra baggage and deliver to him some money and that if he did not get the money that way he would “take it.” Although Johnson says that he had advised Anderson that he was not interested in Anderson’s proposed robberies he was present, or near by, when the car driven by Cooley in his collection rounds stopped at the Steuart store. He says that Anderson started toward this car remarking,' “That is Mr. Wilson now.”
Defending Ms assumed position, Johnson says that he argued with Anderson that this was one of Steuart’s cars, and he insisted that he believed.it to be such, although upon cross-examination, when he apparently realized the danger of this admission, that he had pointed out the collector’s car to Anderson, he then stated that he had never seen the Steuart car prior to that time. Anderson testified that he and Dickson met this car when Cooley had made his collections at that particular store and that Dickson got into the car in the driver’s seat and that he (Anderson) made Cooley sit by Dickson while he sat in the back seat, that Dickson drove the car five or six miles out in the country to the place where they robbed Cooley and then stripped him of his clothes in order to delay him in getting to a telephone or otherwise reporting the robbery. Anderson said that after they had taken the money from Cooley, which was done almost immediately after they entered the car, and had driven to the country and stripped Cooley, he returned to the car leaving Dickson with Cooley, that he, Anderson, was too far away to see what took place, but heard several gun-shots. Dickson immediately returned to the car and they drove down near town and parked the car in a side road where its discovery might be delayed. He also testified that he walked to a place where he found Herbert Johnson and asked him to take him to the home of Clarence (¡Bill) Johnson, where he had been staying during the two days he had been in town. Clarence (Bill) Johnson testified that after he had pointed out the car to Anderson he went to the home of Doc Weldon, where he found his wife and his uncle, Alfred (Pug) Dickson, and that the three of them left a few minutes later, and walked the five or six miles out in the country to his home. Dickson and Johnson, appellants, both admitted they had been at appellant Johnson’s home about one hour when Anderson and his wife came in, having been brought .out by Herbert Johnson in an automobile.
The effect of their testimony is that after Anderson came in he and his wife began to pack their grips or bags and insisted that Herbert' Johnson take them to Little Bock. While they were arguing about going to Little Nock cars began to pass along tbe road near the house and Anderson gave up the idea of attempting to go to Little Rock, saying the road had gotten “too hot.”
Johnson says he was very drunk and sick and that Anderson asked him how much he, Anderson, owed Johnson for staying with him the two days he had been there, and his answer was that whatever he, Anderson, thought was right. Anderson then gave him some money. While he insists he did not know what sum of money he received, it seems to be undisputed that this amount.was given by Johnson to his wife, who later identified the amount was sixteen dollars. Anderson also delivered over, either to Dickson or to Johnson for Dickson, two five dollar bills, which Johnson gave to Dickson. Later in the night, or next morning, Dickson says he returned these two bills to Johnson, who gave them to his wife to put away as she had put away the sixteen dollars the night before.
This money, according to Mrs. Johnson, was concealed in a meal barrel or can, and was kept there until Johnson, or Mrs. Johnson, advised the officers where it might be found.
A few minutes after Anderson and his wife had reached the Johnson home on that night, lights were extinguished, but none of the parties slept except Clarence (Bill) Johnson, who explained that he was too drunk to know what was going on. Mrs. Johnson and Dickson say they were very much frightened by Anderson who went about from yard to house and from room to room, during almost the whole of the night. Anderson and his wife left the Johnson home early the next morning. They went out the back way where they secreted themselves in the woods, and remained hidden until Sunday morning following, when they went to the home of Dora Bunch. This was the same house or home in which Dickson had been living at the time Anderson met him. It is significant that although Dickson had been living at the home of his sister, Mrs. Bunch, for some time, he left there on Thursday afternoon and had another sister drive him to the home of Clarence (Bill) Johnson, where he intended to meet Anderson. He explains this trip as one lio made to investigate .the dance hall proposition, that he and Johnson expected to operate upon money furnished by Anderson. His sister, who took him to the home of Johnson, stayed only about five minutes and then drove back to Hot Springs. Accompanying them was a Mr. Wright, who returned with Dickson’s sister to town, leaving Dickson at the home of Clarence (Bill) Johnson, where he admits they discussed for a few minutes some of the details of the enterprise in which they were about to engage.
He admits that during this time Anderson took him outside and showed him two pistols or revolvers. One of them had a short or “snub-nosed” barrel and the other a long barrel. He testified that Anderson put both these pistols in his belt a few minutes later when they returned to town. Anderson said that Dickson selected the short or “snub-nosed” revolver and armed himself with it before they returned to town. It seems that both these were of 38-caliber. Anderson said he took another pistol' on that occasion when they came to town. He had obtained it from Herbert Johnson, and it was a 32 caliber. The evidence discloses further that a post-mortem was made on 'Cooley and from his body was taken two 38 caliber bullets. He had been shot three times, and either of two of the shots would have been instantly fatal.
Dickson and Johnson rely upon alibis. Dickson’s position in that regard is stronger than Johnson’s. The main facts in regard to this alibi are to the effect that within twenty-five or thirty minutes after Dickson had reached the home of Clarence (Bill) Johnson on Thursday afternoon, Johnson and his wife, Anderson and his wife and Dickson got into a coupe driven by Herbert Johnson and returned to the city of Hot Springs. This was perhaps about five-thirty o’clock. Dickson says that after he got into town he and Hazel Johnson, Clarence (Bill) Johnson’s wife, went to the home of Doc Weldon where they remained until about eight o’clock that night. At this particular home during the time that Dickson and Mrs. Johnson were there several visitors came. These were used as witnesses to show the fact Dickson was there, and according to the testimony he had been there from some time about five-thirty o’clock until about eight o ’clock. About ten minutes before eight o’clock Clarence (Bill) Johnson came in and the three of them then left to walk the five or six miles back to the home of Clarence (Bill) Johnson. It is somewhat remarkable that althoug’h Dickson lived in Hot Springs at the home of Dora Bunch, his sister, he left-there on Thursday afternoon and did not return, but went to Clarence (Bill) Johnson’s home twice, once late Thursday afternoon and started on a return about eight o’clock at night and remained there until he was arrested Friday morning. He gave as his only excuse for going back that night his desire to visit his nephew.
Dickson offered evidence to contradict the statement of Anderson that he was driving the car, showing by a physician that he was practically blind in his right eye. He testified that he was at one time so blind he had to be led wherever he went. The doctor, who testified about his blindness in his right eye, gave no evidence of a positive character as to his ability to see with his left eye. The evidence, as given by them, discloses that Dickson, Clarence (Bill) Johnson and Johnson’s wife returned to the home of Johnson, going through a narrow passageway, which they knew about, crossing the creek on stepping stones, instead of going on the highway that a short time later was “too hot.” Just how nearly blind Dickson was was one of the elements of fact • and circumstances that was submitted to the jury, who knew according to his own testimony that he was able to travel this narrow passageway at night, and cross the creek on stepping stones, in order to return to the country where he met Anderson an hour later, who was in possession of the money, ten dollars of which was delivered to Dickson and sixteen dollars to Johnson.
When Anderson was arrested Sundaymorning after he returned to the home of Dora Bunch, it was found he had $149.70 in his possession. The evidence discloses that Mr. Cooley had collected from the several stores considerably more than that amount, but there was no evidence as to how much was in money and how much was in (‘hecks. Anderson said when he returned to the John- soil home on that night he delivered to Dickson the cheeks as being worthless for the reason they could not use them under the circumstances. He said that Dickson burned these checks in the cook stove on that occasion. He, Anderson, carried the money back to the Johnson home in a bag with the checks and other papers, just as they came from Cooley’s hands.
The officers found, when they searched the Johnson home after Johnson and his wife had been arrested, one of the report slips made by one of the Steuart stores and given to Cooley with the collection he had taken up. Several witnesses identified this as having been found at the Johnson home. It was said to have been found in the chimney corner. It is not clear whether this was inside the home in the chimney corner, or on the outside in the corner. There was no doubt about the positive identification of this report slip as being part of the property taken from the possession of Cooley.
On Friday morning after Anderson and his wife had left, Dickson and Johnson both say that they agreed that the two of them and Johnson’s wife would stay there at the house, at least until they could see Mr. Young, a police officer, whom they regarded as their friend. Certainly they did deny that Anderson and his wife had been in the home until two or three days later. A sufficient length of time had elapsed within which Anderson might have escaped, although Dickson says he knew escape was impossible as he had gone into the hills and would have to return to the roads and highways where he would be picked up. Perhaps a more detailed statement of the evidence in this record is unnecessary.
We prefer to discuss both propositions relied upon by appellants as a single issue, as we think that will tend to shorten the presentation of all matters controlling upon this appeal. In this discussion we are keeping in mind the fact as argued in appellant’s brief that Dickson, Johnson and Anderson, according to Anderson’s testimony, were accomplices, and in all we say we give that question due consideration, but we are not forgetful of • any of the other material facts, or of the evidence given by each of the parties in his own behalf. In fact, there is in reality but a single issue; the sufficiency of the evidence under the circumstances.
Tire contention made is that at the time Cooley was shot and murdered the evidence in this case discloses that the robbery had been completed, that the money was then in the possession of Anderson, and had been since the time he had entered the car and made Cooley enter the car holding upon him a pistol with which he said he was armed. The fact that Anderson was armed is not disputed by either one of the appellants. It is true that Anderson took charge, or physical possession, of the money immediately after Cooley left the place of business to return to the automobile which he was driving in making his collections, but we think it unreasonable to say that the robbery had then been completed by that possessory act.
Robbers would accomplish very little in taking the money and attempting to escape, leaving the victim to spread immediate alarm. The idea is to get possession of the money and prevent an alarm so that possession of it might he kept or retained. The keeping or retention of it -was an object of their plans as much so as getting the money. And in furtherance of this plan Mr. Cooley was driven to the country, and in order that they might have more time to escape, he was stripped of his clothing so that he would be reluctant to enter a home or get to a telephone in the immediate community.
We do not know what theory either one of the robbers might have had to cause the slaying of Cooley, but we think it highly probable that the jury considered the fact that Anderson had been in the community only two days, and most of that time had been spent in the country so Cooley could not, and did not, recognize him, but it is highly probable that he knew both Dickson and Johnson and some word from him indicated his recognition of one or the other, if not both, of them causing his slaying. It seems obvious that at the time he was being stripped it was not the intention of his captors to kill him. No blood was found in the automobile, nor on the clothing, hut only on the ground where he had fallen after the fatai shots. If he did recognize one of those robbing him, then a natural furtherance of the scheme followed by them to that extent, no doubt, made the recognized robber feel that his only safety lay in Cooley’s destruction.
The jury had before it all this evidence, Dickson’s alibi and the fact that .Johnson did not return until after the time within which the .robbery might have been committed, and it might well have found that all of the parties testifying in regard to the time Dickson was in Doc Weldon’s home were mistaken as to the hour. The only witness who fixed a time with any degree of certainty was one who said that after he left Doc Weldon’s home and returned to his own home, he took the members of his family to a show that was presumed to open about seven-thirty o ’clock. There was no watch or clock in the Weldon, home, so the witnesses who testified had no means of giving the time with any degree of exactness. Nor is there any way of fixing any definite time that ■Cooley was kidnapped and taken to the country. It was not impossible, perhaps, it may well be said not improbable that both Johnson and Dickson were present when Cooley was killed.
We agree with appellants’ contention that Anderson in his testimony given in this case was more interested in establishing a defense for his wife than he was in aiding the court to reach exact justice. It may be said in that regard that Anderson had already been convicted. Ho was perhaps attempting to shield himself by fixing guilt on others. He was the selected company and “pal” of Clarence (¡Bill) Johnson. He had chosen Dickson as “a man to be relied upon” and Dickson was relying upon him. Dickson says, even according to his own theory, and his idea of self-preservation, that when Johnson had told him that he had pointed out the Steuart car to Anderson and Anderson had driven it away, he was not concerned about this matter in the least, although he knew a robbery was in the making.
It is most probably true as argued by appellants that Anderson did not tell the whole truth untainted with falsehood. Each of the other parties admitted that he had attempted deception in certain respects, so the jury was not hound by any complete statement, or detail ■thereof, made by either one of them, but had the right and duty to choose from all these statements that part of the evidence which they believed to be true, the most plausible in conformity with the facts that were established, or undisputed, and determine therefrom their verdict.
The jury, no doubt, found there was.a conspiracy and the evidence fully supports a finding from the foregoing facts that the conspiracy had not ended prior to the death of Cooley, but all acts were in the performance of .an agreement or understanding among the parties. The testimony, of Anderson was corroborated by many physical facts, most of which were, admitted as true by each of the appellants. . Besides, as the record shows, each testified, and such evidence was a corroboration sufficient to justify conviction.
The foregoing is not an extension of the rule announced by this court in Clark v. State, 169 Ark. 717, 276 S. W. 849. The court there held that the conspiracy was not complete upon the mere taking of the money, but that the defendant and his confederates, as a part of ..the act of conspiracy, got into an automobile and left the scene of the robbery and that was a part of the organized scheme they had planned. In other words, the escape was a part of their planning and scheming as much as taking the money. It was, also, held in Ringer v. State, 74 Ark. 262, 85 S. W. 410, that “if the act he intended to do was criminal then the law holds him responsible for what he did, even though such result was not-intended. ” Wilson v. State, 188 Ark. 846, 68 S. W. 2d 100.
We have but recently held that the testimony of a defendant may in itself be a sufficient corroboration of Ihe evidence of-an accomplice. Morris v. State, ante p. 778, 126 S. W. 2d 93; Morris v. State, ante p. 695, 123 S. W. 2d 513.
That rule is applicable here, and each of these appellants has given such testimony gs tended to connect him positively with the commission of this crime. Their ef forts to make some explanation of their conduct properly submitted to the jury, were determined adversely to their contention and all questions of fact were conclusively decided against them by the jury under a proper submission thereof.
There is no other method whereby disputed matters of fact may be settled. The jury system is the only protection of organized society, the state, from the violation of both public and individual rights. But those charged with criminal acts ape so favored as to be clothed with a presumption of innocence, until guilt appears beyond a reasonable doubt. In this case, both of the appellants were tried by a jury of their neighbors in the county where both were reared. They made their own explanations of their conduct as established by evidence and their own admissions. Upon this trial one appeared as a man of middle age, making a puerile, puny and apologetic struggle against the stern mandate of the law whose milder restraints he had previously scorned. The other is a very young man, not inexperienced in crime. He is a nephew of the older man. In his desperation occasioned by undeniable situations, not only by evidence he could not contradict successfully, but by his own statements, he resorted apparently to evasion, sought refuge in a feigned forgetfulness, claimed by him to have been induced by voluntary drunkenness.
There remains one other contention that may be mentioned. The appellants argue, and with much vehemence, that this court cannot determine from this record several different propositions, which they deem vital upon the trial of this case. We are not trying this case de novo. We consider the facts only to determine if there is sufficient evidence in addition to that of accomplices, to support the verdicts.
We have carefully considered this view of the case, not only the record as made upon the trial, but every contention and argument presented by appellants, and we find no error; but we have determined that the evidence is of substantial nature and ample to support the judgments of the circuit court. The judgments are, therefore, affirmed. | [
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James H. Pilkinton, Judge.
This is an unemployment compensation case. Appellee worked for the Stagecoach Motel on a permanent, full-time basis from November 1977 until August 1978 when she was discharged. Following her discharge, appellee accepted temporary employment during the Christmas season at K-Mart and at the race track for the duration of the racing season. She filed a claim for unemployment benefits on May 2, 1979, stating that she had been discharged by appellant Stagecoach Motel for failing to collect room rent in advance from a guest who left without paying. While employed by Stagecoach, appellee was the afternoon shift desk clerk; All of the desk clerks were to obtain payment from guests for their room in advance when registering. In the case of guests staying over for another day, the afternoon desk clerk had the primary responsibility of contacting the guest and obtaining payment in advance of their staying over. If the afternoon desk clerk was unable to contact the guest or obtain payment, the manager was to be contacted.
The incident triggering appellee’s discharge involved a motel guest named Woodall who paid for one night’s rent when he checked in on Sunday. He stated then that he did not know how long he would be staying. Each day of that week thereafter, he paid for one night in advance until Friday. Appellee tried unsuccessfully to contact Woodall on Friday. Ms. Krause claims she told the manager, Richard Sampo, on either Friday or Saturday that she had not been able to contact Woodall to obtain payment. In any event, appellee as well as the morning shift clerk continued to try to contact Woodall, but without success. On Sunday, after again trying to contact Woodall, Ms. Krause attempted to telephone the manager at his home to report the continuing problem. She testified that she repeatedly telephoned him at one-half hour intervals, but got no response. Ms. Krause also says that she drove to the manager’s house when she got off from work at 10:30 p.m. on Sunday to apprise him of the situation, but did not stop because there were no lights in the house and she thought the manager had retired for the night. Appellee called the manager early Monday morning at the motel office, and advised him of the situation, but by that time Woodall had left the motel without paying for Friday, Saturday and Sunday. Ms. Krause was discharged the same day for failure to follow the policy of the employer.
The Employment Security Division denied compensation. The agency held that “failure to follow the policy of the employer is an act against the employer’s best interest.” Ms. Krause appealed the denial, and the Appeals Tribunal reversed, the Referee holding that there was not a sufficient showing of deliberate conduct against the employer’s best interest. The Board of Review adopted the decision of the Appeals Referee as the decision of the Board, and affirmed the allowance of compensation. The employer has appealed to this court from the decision of the Board of Review.
I.
Appellant first claims that the decision of the Board of Review is based upon a misstatement and misapplication of the law. It is argued that under Ark. Stat. Ann. § 81-1106(b)(1) disqualification attaches if an individual is discharged from his last work for misconduct in connection with the work, and that a showing of deliberate misconduct is not required.
The general rule is that misconduct (within the meaning of the Unemployment Compensation Act excluding from its benefits an employee discharged for misconduct) must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of the standard of behavior which the employer has a right to expect of his employees. 76 Am. Jur. 2d, Unemployment Compensation, § 52. 26 ALR 3d 1356. See also Parker v. Ramada Inn, 264 Ark. 472, 572 S.W. 2d 409 (1978); Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978). Consequently, in the case before us we cannot say that appellee’s action did, as a matter of law, constitute misconduct within the meaning of the statute. A question of fact was presented to the Board of Review on which it could have found either way.
II.
Appellant next points out that the Appeals Referee refers to some matters as undisputed when they were in fact disputed, and appellant also complains about the manner in which the Appeals Referee conducted this hearing and made his findings. It is clear from the record that the Referee did ask a great number of very leading questions, and in some ■instances he came close to placing words in the mouth of the claimant while she was testifying. Appellant points out that the Board of Review carried such matters forward when it adopted the findings and decision of the Appeals Referee as its own.
With respect to procedure, the Employment Security Act, Ark. Stat. Ann. § 81-1107(d)(4) (Repl. 1976) provides:
The Board of Review, appeal tribunals and special examiners shall not be bound by the common law or statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before such tribunals shall be conducted in such a manner as to ascertain the substantial rights of the parties . . .
Under the statute, unless the hearing is conducted in such a way as to make it impossible to ascertain the substantial rights of the parties, we cannot properly reverse on procedure. The actions complained of did not go that far in this case.
HI-
Appellant next argues that subsequent to her discharge, appellee worked for K-Mart during the Christmas, season and at the race track during the racing season and, therefore, her last employment was not with appellant. The evidence shows that the K-Mart and race track jobs were temporary, and cannot be considered appellee’s last employment for unemployment purposes. There is substantial evidence in the record to support the. finding of the Board of Review that appellee’s last employment for unemployment benefit purposes was with Stagecoach Motel.
IV.
All points considered, the main question on this appeal is whether there was substantial evidence to support the decision of the Board of Review that appellee was entitled to unemployment benefits under the Arkansas Employment Security Act. Even though there is evidence in this record upon which the Board of Review might have reached a different result, the scope of our judicial review is limited. Harris v. Daniels, supra. A reviewing court is not privileged to substitute its findings for those of the Board of Review even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the board. Harris v. Daniels, supra., and Parker v. Ramada Inn et ux, supra.
Since we find substantial evidence to support the board’s action, the judgment is affirmed.
Affirmed. | [
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Ernie E. Wright, Chief Judge.
This case was appealed to the Arkansas Supreme Court and was transferred to the Court of Appeals pursuant to Rule 29(3) of the Arkansas Supreme Court.
The appeal is from a judgment on a directed verdict from the Washington County Circuit Court for $61,239.96 in favor of appellee upon a suit on account for feed and other merchandise purchased by the Appellant, Pierson E. Skelton, from the Appellee, Farm Service Co-operative, Inc.
The complaint included a count seeking to recover judgment on the open account and another count seeking judgment on a promissory note for $39,839.37, dated February 20, 1975, executed by Skelton and wife to the appellee. Evidence was presented by appellee tending to show the note was accepted by appellee as security for the open account.
At trial, the appellee abandoned the portion of the suit seeking judgment on the note, did not produce or surrender the note and presented evidence seeking judgment only upon the account, including pre-judgment interest at the rate of 10%.
Appellee’s evidence made a prima facie case upon which the court could properly have found that the Appellant Skelton purchased feed from the appellee and that the account for same had not been paid. There was no competent evidence the Appellant, Mrs. Skelton, participated in purchasing the feed.
At the close of the appellee’s evidence appellants moved for a directed verdict, contending the appellee had not met the burden of establishing the debt on the open account and had failed to introduce in evidence the note given in connection with the account or explain the failure to produce the note.
The court overruled appellants’ motion for a directed verdict and rendered judgment for appellee for $61,239.96 against both Mr. and Mrs. Skelton. The judgment appears to include several thousands of dollars of pre-judgment interest, and possibly interest upon prior finance charges, but there was no testimony as to the rate of interest or the principal amounts and periods of time used in arriving at the amount of interest.
Appellants seek reversal on two points: First, the court erred in failing to grant appellants’ motion for directed verdict at the close of appellee’s case for failure to proffer, produce or surrender the promissory note executed as security for the account, and second, that there was no substantial evidence to support the verdict.
On the second point there is clearly no evidence in the record to warrant a judgment for appellee against Mrs. Skelton. It is true, she apparently signed a promissory note along with her husband to secure the open account her husband had incurred, but the note was not produced, offered in evidence or surrendered, and counsel for appellee announced at trial that judgment was not sought on the note.
On the first point for reversal, the law is well settled that a note given for an antecedent account is not payment of the debt, unless it is agreed to be taken as such. There was no evidence here the note was accepted in payment of the debt. Under such circumstances, if the debt is not paid when the note becomes due, suit can be maintained on either the note or the account. See, Ark. Stat. Sec. 85-3-802 (1) (b) and Boone v. General Shoe Corp., 219 Ark. 340, 242 S.W. 2d 138 (1951). However, it was necessary for the appellee to produce and surrender the note in court to be entitled to a judgment on the open account. In the Boone case the court held it was necessary to surrender the note and quoted with approval from Am. Jur., Vól. I, p. 269, Sec. 8, as follows:
But, if one who accepted from another in liquidation of an open account, a negotiable promissory note, he cannot recover in a suit upon the original cause of action unless, upon trial, he produces the note or satisfactorily accounts for its absence.
If the law were otherwise, the note could be transferred to a third party, thereby exposing the debtor to the expense of defending a law suit and possible double liability.
This problem was recognized in Industrial Bank of Commerce v. Harpe, 77 N.Y.S. 2d 605, 191 Misc. 658 (1948) in which the court said:
... a recovery cannot be had on the original obligation without a surrender of the negotiable paper, or a satisfactory explanation of its non-production, or unless it appears that it cannot be enforced by a third party. The reason for this rule is not that the debt has been paid, but that a suit might afterwards be brought by the indorsee and so the party might be compelled to pay the debt a second time.
The Uniform Commercial Code, adopted in 1961, does not change the rule announced in the Boone case. Rather Sec. 85-3-307 (2) indicates the wisdom of the rule in that it provides that when signatures on a negotiable instrument are established, production of the instrument entitles a holder to recover unless the defendant establishes a defense.
Also, the judgment here included a large amount for prejudgment interest without any showing as to the rate of interest applied and of the period of times and amounts to which the interest was applied.
The appellee would be entitled to no more than 6% prejudgment interest on the account from the date of the filing of the complaint to the date of judgment. Advance Construction Co., Inc., et al v. Dunn, 263 Ark. 232, 563 S.W. 2d 888 (1978), Johnson v. Hull, 57 Ark. 550, 22 S.W. 176 (1893).
The case is reversed and dismissed as to the Appellant, Mrs. Skelton, and reversed and remanded as to Mr. Skelton for further proceedings consistent with this opinion. | [
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James H. Pilkinton, Judge.
This is a workers’ compensation case and is before the court on appeal from an award of the Arkansas Workers’ Compensation Commission finding that claimant is entitled, among other things, to all statutory benefits relating to a compensable injury suffered on December 11, 1978.
It was stipulated that on the date of the injury, claimant was a regular employee of Bunny Bread Company, earning a wage sufficient to entitle him to the maximum compensation rate of $87.50 per week.
The Commission found that appellee was injured within the scope of his employment and is therefore entitled to temporary total disability benefits and controverted attorney’s fees.
The appellants contend there is no substantial evidence to support the award, and say the claimant’s accident did not arise out of the normal course of his employment. Appellants contend appellee was injured during a deviation from his duties and, therefore, have controverted this claim in its entirety. The appellee, William E. Shipman, was the only witness who testified below, and the entire record is not long. Actually, there is no dispute over any material fact in this case. Mr. Shipman was a route salesman for the appellant, Bunny Bread Company. His route ran from Walnut Ridge to Hardy, Arkansas. On December 11, 1978, while traveling to Hardy to make his next delivery, appellee saw a car in the ditch and a lady standing beside the road. He recognized the lady and noticed she was attempting to flag him down. Mr. Shipman was unable to stop immediately because of ice on the road. He proceeded past the disabled vehicle, turned around and returned to the stranded motorist. Her car was off the road and in a ditch. He pulled his bread truck to the side of the road, and went over to see what assistance he could render. As Mr. Shipman prepared to drive the lady’s vehicle out of the ditch, he observed that the bread truck was perhaps blocking the ultimate pathway; and therefore, appellee attempted to get out of the stranded vehicle so that he could move the bread truck. Another vehicle, coming over the hill, slid on the icy road and crashed against the car on the side where Mr. Shipman was exiting, crushing his leg against the vehicle.
The sole issue involved is whether or not appellee’s “good Samaritan” act was such a deviation from his normal business duties as to take him outside the scope of his employment at the time of the injury.
The Commission held that the injury , in question did arise out of and in the course of appellee’s employment within the meaning of the law; that appellee-claimant has been temporarily and totally disabled for the period beginning December 12, 1978, and continuing to a date yet to be determined. Therefore, claimant’s healing period has not ended and the issue of permanent partial disability is not before the court. That question has been specifically reserved for future determination as provided by law.
I.
It was the duty of the Commission to draw every legitimate inference possible in favor of the claimant and to give him the benefit of the doubt in making factual determinations. Brower Manufacturing Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950 (1972). Further, the Commission in considering a claim must follow a liberal approach and, as stated above, draw all reasonable inferences favorable to claimant. Holland v. Malvern Sand and Gravel Co., 252 Ark. 755, 480 S.W. 2d 822 (1964). The same rules apply in determining whether the accident did, in fact, grow out of and occur in the course of the employment. Cox Lumber Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91 (1952); Brooks v. Wage, 242 Ark. 486, 414 S.W. 2d 100 (1967). See also Tinsman Manufacturing Company, Inc. v. Sparks, 211 Ark. 554, 201 S.W. 2d 573 (1947).
II.
On appeal this court’s inquiry is limited to determining whether the decision of the Arkansas Workers’ Compensation Commission is supported by substnatial evidence, and in so determining, we are required to view the evidence in the light most favorable to the decision of the Commission. St. Michael Hospital v. Wright, 250 Ark. 539, 465 S.W. 2d 904 (1971). Doubtful cases are resolved in favor of claimant. Cooper Industrial Products, Inc. v. Worth, 256 Ark. 394, 508 S.W. 2d 59 (1974). Thus, in disposing of this appeal, this court is only concerned with whether there is substantial evidence in the record to support the findings and award of the Commission. It is not within this court’s province to determine the preponderance of the evidence. Mounts v. Bechtel Corp., 256 Ark. 318, 507 S.W. 2d 99 (1974). Before we could reverse, this court would have to be convinced that fair-minded persons, with these facts before them, could not have reached the conclusion arrived at by the Commission. Purdy v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977).
III.
In considering the rules to be applied, it might also be mentioned that the burden of proof is on claimant-appellee to show that he sustained an accidental injury arising out of and during the course of his employment.
IV.
As stated in 1 Larson, Workmen’s Compensation Law, § 19.00 (1952):
An identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial. In some jurisdictions, the course of employment is deemed resumed if, having completed his personal errand but without having regained the main business route, the employee at the time of the accident was proceeding in the direction of his business destination. (Emphasis supplied.)
Appellants take the position that under the circumstances of this case the appellee deviated from the business trip for personal reasons or a “good Samaritan” act; and consequently, took himself out of the course of his employment until such time as he resumed the course of his employment by completing his personal.errand or the “good Samaritan” act. Appellants’ contention is without merit.
Here the claimant’s act and deviation, if it may be properly so termed, was not a personal errand, but rather a “good Samaritan” act. The claimant was traveling his normal route, driving a vehicle furnished by the employer, when he saw a disabled vehicle. Also important was the fact that the claimant-employee had been instructed by his employer that every member of the general public was a potential customer and should always be treated with courtesy and consideration. If rendering assistance to a disabled motorist, under the circumstances of this case, may be considered a deviation from normal employment duties, the Commission determined that such action was not in time and place a sufficient deviation to constitute taking the claimant outside the scope of his employment. Tinsman Manufacturing Company, Inc. v. Sparks, supra; and Cox Brothers Lumber Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91 (1952).
There is substantial evidence in this record to support the conclusion of the Commission that the claimant’s deviation from his normal employment was so minor as to be regarded as an insubstantial deviation. Further, in view of the indoctrination of the claimant and his instructions concerning good public relations, we might question whether or not claimant’s “good Samaritan’’ act was even a deviation from his employment. The employer’s bread truck which the motorist flagged down had the Bunny Bread sign clearly displayed. Surely, except for the unfortunate accident which occurred, it would be difficult to argue that the employer would have objected to the claimant’s action in lending assistance to a disabled motorist.
The pages of 1A Larson, Workmen’s Compensation Law, § 27.22 (1952), are replete with illustrations of the lengths to which employees may be expected to go in pursuit of public good will. A number of courts have gone to considerable lengths in upholding awards for injuries occurring in the course of miscellaneous good Samaritan activities by employees, on the theory that the employer ultimately profited as a result of the good will thus created. In Lewis v. Kentucky Cent. Life Insurance Co., 20 N.C. App. 267, 201 S.W. 2d 228 (1973), an insurance collector and salesman was struck by an out of control automobile, while entering his own car after aiding a policy-holder whose automobile had stalled. He was held to have been in the course of his employment at the time of the accident. The test as applied by the North Carolina court is whether the employee was acting for the benefit of his employer or for his own benefit. The court held in that case that specific personal relations essential in the industry were promoted, as was also general good will.
In Carey v. Stadther, 219 N.W. 2d 76 (Minn. 1974), the widow of the deceased employee sought to recover depen dency compensation benefits for the death of her husband, a feed salesman, who had died while trying to rescue a man from a cesspool. The Supreme Court of Minnesota reversed the Workmen’s Compensation Commission denial of benefits, and held that, when the deceased’s employer encouraged this type of community service Carey had done that day, and looked upon such activities as an essential sales technique, the salesman’s death arose out of and in the course of his employment, and his dependents were entitled to dependency benefits under the Workmen’s Compensation Act.
The good-will rule attained its ultimate expression in Gross v. Davey Tree Expert Company, 248 App. Div. 838, 290 N.Y. 168 (1936). In that case a tree trimmer who observed a lady in distress descended from his immediate duties to assist the lady in getting her car started. In so doing, he was injured. The court held he was entitled to benefits under his practice of helping those in distress and the policy of the employer to do everything possible to encourage good will.
The Commission in the case before us found appellee was entitled to benefits under the Arkansas Workers’ Compensation Act.
We find there is substantial evidence to support this conclusion.
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Frank Holt, Justice.
Appellant was notified by letter dated December 27, 1977, that his services with the City of Little Rock’s Fire Department were terminated because of his unauthorized removal of personal property from a privately owned automobile. In the same letter, he was informed of his right to appeal and was referred to § 55, Article 15 of the Rules and Regulations of the Department: “Conduct prejudicial to the public service.” Pursuant to Ark. Stat. Ann. § 19-1605.1 (Repl. 1968), an evidentiary hearing was held before the Little Rock Civil Service Commission on March 30, 1978, with three of the five members present. After a 4 and Vi hour hearing, the commission members present upheld the termination. Appellant appealed to the circuit court where the appellant and counsel appeared in person and the matter was submitted, without additional evidence, upon the transcript and record of the commission proceeding. The trial court also heard arguments by counsel. The circuit court affirmed. Thereupon present counsel was employed to perfect this appeal.
Appellant asserts that the court erred in upholding the order of the commission, which was not supported by substantial evidence; it was prejudicial error for the court to affirm a ruling based on a hearing which lacked due process; and it was prejudicial error for the court not to reverse the commission’s ruling because the commission failed to follow its own rules. Appellant’s second and third contentions and subordinate arguments were not raised before the commission or the trial court. This includes appellant’s subordinate argument that the commission failed to make findings of fact and conclusions of law and, further, the commission considered or heard testimony on other incidents without notice that such incidents would be an issue. We do not consider arguments raised for the first time on appeal. Green v. Ferguson, 263 Ark. 602, 567 S.W. 2d 89 (1978). Further, we no longer review termination cases de novo, and on appeal we determine only whether the commission’s finding is supported by substantia] evidence. Petty v. City of Pine Bluff, 239 Ark. 49, 386 S.W. 2d 935 (1965).
In determining the sufficiency of the evidence, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and affirm if there is any substantial evidence to support the finding of the factfinder. Further, upon appellate review, it must appear there is no reasonable probability that the incident occurred as found by the factfinder, and we consider only the evidence of the appellee or that portion of all the evidence which is most favorable to the appellee. Thirfty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304 (1975).
On the night of December 4, 1977, appellant, on duty as captain, proceeded to the scene of an accident where an automobile had been driven off an overpass. The victim, Stanley James, was found in a state trooper’s car being administered first aid. He was dazed, intoxicated, and blinded in both eyes. After a short time, the trooper removed James to a nearby ambulance. Appellant removed a CB radio from the trunk of James’ car. After returning to the fire station, appellant locked the CB in the trunk of his car. The trooper, who had taken James to the ambulance, returned to the scene, saw that the CB was missing, and filed a complaint with the police. On December 9, 1977, Sergeant Troutman, with the Arkansas State Police, went to appellant’s fire station, located appellant and two other firemen, who had been on duty with the appellant the night of the accident, and indicated he wanted to talk to them about the incident. Appellant immediately said: “Oh, you’re here to see about the CB.” “We have it.” Within 10 or 15 minutes, appellant secured and returned the CB to the officer, making a note of the transaction in the station logbook. The district chief, upon learning there was no mention of the CB in the original log entry for the accident, contacted the chief about the irregularity. After appellant was notified of his suspension, he contacted James, who went with him to the personnel office and gave a statement indicating that he had authorized appellant to remove the CB from his car.
It is true that both appellant and James testified that, at the scene, James had made the statement, “Hoss, take care of my stuff.” Appellant also called the hospital several times and got a copy of the accident report in an effort to locate James. Appellant testified that he took the CB to protect it at James’ request. However, the trooper, who was first at the scene of the accident and who removed James from the scene to the ambulance, testified that he was near James at all times and did not hear him make such a statement. James was drunk, dazed, and incoherent at the time. Bandages had been applied for his eye injuries. He would have been unable to see to whom he was talking. Sergeant Troutman testified that James did not remember making the statement when he first spoke with him in the hospital, and James later told him that appellant had told him he would be fired if he did not say that he had authorized appellant to remove the CB.
Appellant testified that he had not been instructed concerning inventory forms, although he had read the rules and regulations of the department and signed a paper so stating. The chief testified that the correct procedure for securing private property at an accident was to give it to the owner, if available, or to the police. If neither action were possible, the fireman should notify his superior and note the property in the logbook. Order 62-11 had been issued in 1962 directing that any personal property removed from an accident scene be listed on a department inventory sheet. Grooms, another captain, testified that he had had the opportunity to read the inventory order on two or three occasions. Johnson, a driver, stated that the inventory of personal property after an accident is the responsibility of the person in charge. New, a firefighter, testified that his understanding of the procedure was that they were to notify their captain, who was to let the policemen secure the valuables.
It was for the commission, as the factfinder, to resolve issues of credibility and conflict in the evidence. When we view the evidence most favorable to the appellee, as we must do on appeal, we hold there is substantial evidence to support the commission’s finding.
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Darrell Hickman, Justice.
The issue before us is the validity of a will. John F. Wilson signed an instrument on the morning of July 7, 1976, while a patient at St. Mary’s Hospital in Russellville. That instrument, which was in the handwriting of his second wife, Lillie, left all his property to her if she survived him. Wilson died a month later.
The validity of that will was contested by the testator’s first wife, Shirley Wilson Greenwood, on behalf of a minor adopted child of the first marriage.
The appellant Greenwood claimed that the instrument was invalid because of undue influence exercised by Lillie Wilson and because of Wilson’s lack of mental capacity to make a will.
The Probate Court of Johnson County held the will valid. On appeal only two issues are raised: Whether the findings of the probate judge were against the preponderance of the evidence and whether the testimony of Lillie Wilson about statements Wilson made regarding his intent were admissible. The first issue requires consideration, the second none because Uniform Rules of Evidence, Rule 803(3), permits such statements concerning present intent. See State v. Abernathy, 265 Ark. 218, 577 S.W. 2d 591 (1979).
The law to be applied to this case has been settled for years. On appeal we review the case de novo and will affirm the order of the probate judge unless it is against the preponderance of the evidence. Orr v. Love, 225 Ark. 505, 283 S.W. 2d 667 (1955); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W. 2d 665 (1963). (Similar cases decided after July 1,1979 will be affirmed unless the findings are clearly erroneous according to Rules of Civil Procedure, Rule 52, which is the same standard as “clearly against the preponderance of the evidence.’’ This review criterion, however, does not affect the burden of proof that is imposed on parties in the trial of certain causes. See Note 2, Reporter’s Notes to Rule 52.)
Generally, the burden of proving undue influence and the lack of mental capacity would be on the party challenging the will. Sullivant v. Sullivant, supra; Orr v. Love, supra. However, because this will was drafted by Lillie Wilson, the primary beneficiary, there is in effect an offsetting rule which places on her the burden to prove beyond a reasonable doubt that her husband had both the mental capacity and the freedom of will and actions required to render a will legally valid.
As early as 1858 we said in McDaniel v. Crosby, 19 Ark. 533 (1858):
When a will is written, or proved to be written by a person benefited by it, or by one standing in the relation of attorney or counsel, and who is also benefited by it, — these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.
Continuing, the Court quoted favorably from a case of another jurisdiction:
... it is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid.
That has been our rule ever since.
In Orr v. Love, supra, we approved this language and also stated:
The presumption of undue influence is not one of law but is a presumption of fact and subject to rebuttal. . . . The question of undue influence and mental capacity are so closely interwoven that they are considered together.
In Sullivant v. Sullivant, supra, we again approved the standard of proof to be one beyond a reasonable doubt.
In the case of Hiler v. Cude, 248 Ark. 1065, 455 S.W. 2d 891 (1970), we were asked to hold that our decision in Orr meant that the burden of proof shifted where a proposed will is drafted by a beneficiary. That same argument is made by the appellant Greenwood. That is, normally a contestant must prove undue influence and mental incapacity; whereas a beneficiary-drawn will must be shown beyond a reasonable doubt to be free from undue influence and made by a mentally capable person.
We clearly held in Hiler that the burden did not shift and that the two rules did not conflict:
We adhere to the rule that the burden of proving mental incompetency, undue influence and fraud which will defeat a will is upon the party contesting it. We hold this burden, in the sense of the ultimate risk of nonpersuasion, never shifts from the contestant. This does not however, conflict with the rule concerning the burden of going forward with the evidence or burden of evidence. As stated in 29 Am.Jur. 2d, 156, Evidence Section 125: ‘In short, the burden of proof, in the sense of the ultimate risk of nonpersuasion, never shifts from the party who has the affirmative of an issue, although the burden of going forward with the evidence may shift at various times during the trial from one side to the other as evidence is introduced by the respective parties.’
Obviously, a proponent of a will, who is a beneficiary and who drafted or caused to be drafted a will, does not enjoy the usual legal advantages given to a document otherwise drawn. For example, a person is presumed to be sane. First Christian Church v. McReynolds, 194 Or. 68, 241 P. 2d 135 (1952). Also, a proponent of a will only has to show by a preponderance of the evidence the necessary and essential matters to get a will admitted to probate. C.J.S., Wills § 383 et seq. (1957); T. Atkinson, Wills § 101 (2d ed. 1953).
In a will such as that before us, because proof of mental capacity and the lack of undue influence must be proved beyond a reasonable doubt, those advantages, which make it relatively easy to admit a will to probate, obviously do not exist.
It is a burden that one ought to have who is a primary beneficiary of a document drafted or caused to be drafted by that beneficiary. As we said in McDaniel v. Crosby, supra, “. . . these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.”
Lillie Wilson admitted she wrote out the will because she said John Wilson’s hands were shaky and he had an I. V. (intravenous tube) in his hand.
Wilson was hospitalized on July 5th for liver failure. She wrote the will on July the 6th, and it was signed on the morning of July 7th. It reads:
I, John F. Wilson being of sound mind hereby tells that this is my last will and Testamony. This is to disregard any other wills made before. To my wife Lillie F. Wilson I leave all my property 78.2 Acres more or less and personal possions. She is to be responsible for the estate of my unborn child due Sept. 1976. In the event she dies my brother Jimmy D. Wilson is to be over my childs estate. If the child dies my nieses Deanna Wilson and Donna Wilsons will be last aires excluding 4 acres of land to my mother and Fatherinlaw — Betty Underwood shall have two acres & Charlie Woodard two acres. Jimmy D. Wilson will be in charge. This being of course if Lillie is not living. To my adopted son Antonnty Jack Wilson I leave the sum of one dollar because he has been took care of with settlements & my social security.
/s/ John F. Wilson (illegible) 7/7/76
/s/ Cheryll A. Shinn, Medical Records 7/7/76
/s/ Sharon C. Bell, Medical Records 7/7/76
There is no doubt the burden was on the appellee to prove beyond a reasonable doubt that John Wilson was not unduly influenced and that he had the mental capacity to make this will.
Undue influence has been defined this way:
As we understand the rule, the fraud and undue influence which is required to avoid a will must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution. (Quoting from 3 Elliott on Evidence, § 2696): ‘The influence of the husband over the wife, that of the wife over the husband, of the parents over the children, and of the children over the parents, are legitimate, so long as they do not extend to positive dictation and control over the mind of the testator. ’ Puryear v. Puryear, 192 Ark. 692, 700 (1936).
Mental or testamentary capacity has been uniformly defined as:
... (a) the ability on the part of the testator to retain in memory without prompting the extent and condition of property to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him of those whom he excludes from his will. Hiler v. Cude, supra, 1076.
We find the appellee did not prove beyond a reasonable doubt Wilson had the mental capacity to execute a valid will. The chancellor’s findings in that regard are against the preponderance of the evidence.
Four witnesses testified for the appellee, two employees of the hospital, a doctor and the appellee, Lillie Wilson.
Lillie Wilson testified that she and John Wilson were married in February, 1975, and that she gave birth to his childin October, 1976,55 days after Wilson’s death. She said Wilson was sick and she had him admitted to the hospital on the 5th of July, 1976. He told her he wanted a will and she wrote down on a piece of paper what he told her. She talked to a lawyer the morning of the 6th and received some advice after which she drafted the will, which we have reproduced, in her own handwriting. She said she was told by the lawyer that Wilson could not be under the influence of drugs when he signed the will.
She called Dr. Ernest King and told him that her husband wanted to make a will and he could not be under the influence of drugs when he signed the will. She said the doctor replied “ O.K. ” and agreed to meet her at the hospital early the next morning. She said she arrived at 8:00 a.m. and saw a sign on the door which read, “Withhold Wilson. ’ ’ The doctor came in about 8:30 a.m. and said he would send two secretaries to witness the signature. She said the secretaries had to come back three times because Wilson had diarrhea and was in the bathroom. She said she read the will to Wilson and he signed it.
She was not asked specifically about Wilson’s mental condition.
The two secretaries testified that they both signed the document at Dr. King’s request.
Cheryll Shinn, a medical transcriptionist, said she signed it sometime between 9:15 and 9:45 a.m. She said that her boss, Sharon Bell, was there and another woman whom she could not identify. She was asked:
* * *
Q. Did he appear to be of sound mind at the time he signed this?
A. I really couldn’t answer that.
Q. Was there anything he did or said —?
* * *
A. I really couldn’t answer that.
Q. Was there anything he said or did that indicated to you that he was not of sound mind?
A. No, sir.
Q. Did he appear to be under any undue influence or coercion at the time he signed this document?
A. No, sir, he did not. . . .
Shinn said she was present only two or three minutes. She testified she did ask Wilson if that was exactly what he wanted to do and he replied it was.
Sharon Bell, a medical records administrator, testified that she was present three or four minutes and could not recall any conversation. She could not identify the wife as being present although she thought there was another person in the room. She said this was the only time she saw this patient.
Dr. Ernest King, who did not admit Wilson to the hospital but treated him while he was there, said Wilson was suffering from severe hepatic failure — liver failure. He said that Wilson was ‘ ‘ acutely ill, critically ill, morbidly ill. ” King testified that he went to Wilson’s room between 8 and 9 a.m. on the 7th of July and talked to Wilson about ten minutes. He said he did not give him a physical examination but he was satisfied that Wilson had the capacity to make a will. That is, that he knew about his property and knew what he wanted to do with it. He was not present later when the will was signed in the presence of the secretaries.
He admitted during cross-examination that Wilson was very ill the night before and had had hallucinations. Dr. King said his knowledge about Wilson’s hallucinations prompted him to order a consultation with a psychiatrist for the 8th of July. He said he had seen him in the afternoon of the 6th but not during the night. He said he did not remember or “have in his information” the fact that early the morning of the 7th Wilson was walking the halls and picking bugs off the wall. He verified that Wilson was given 50 milligrams of Demerol and 50 milligrams of Visteril the morning of the 7th. Demerol is a narcotic and Visteril is a tranquilizer.
He admitted the records showed that on the morning of the 7th at 7:30 there was a note that Wilson was out of bed, walking the halls, confused and picking bugs off the bed table, in a condition that King agreed would make Wilson incapable of making a valid will. Dr. King said that he did not think Wilson was confused when he talked to him thirty minutes or so later.
He was asked about a nurse’s written observation that at 11:00 a.m. on the morning of the 7th, Wilson was “shaking all over, continues to be confused. Dr. King notified.” He agreed Wilson would not have been competent at 11:00 a.m. He said he did not remember seeing Wilson that morning; he did not think he did because he had seen him off and on for several days and this was nothing new. He said it had been two years since the event and he could not recall any conversation that took place with Wilson on the morning of the 7th. Other doctors also attended Wilson.
Barbara Hays, a nurse who came on duty about 6:30 a.m. on the morning of the 7th, made the 7:30 a.m. note. It read:
Out of bed. Walking in halls. Confused. Picking bugs off bed table when no bugs seen by . . . personnel.
She observed this conduct personally. She confirmed that the record showed that at 5:50 a.m. on the morning of the 7th Wilson received 50 milligrams of Demerol and 50 milligrams of Visteril. She testified that the records showed that on the afternoon Wilson was admitted, which was the 5th of July, he had a convulsion. The record reflected that several times the I. V. tube had been pulled out on the 6th and 7th of July. Wilson also had a bowel movement in his bed.
She made the medical observation and note that at 11:00 a.m. on the 7th he was shaking all over and continued to be confused. She personally observed this conduct. She noted that Dr. King was notified. She made the note at 10:30 on the 8th of July that Dr. Linda Bell, a psychiatrist, was notified of a consultation. She noted that on the 9th of July he continued to be confused. On the 10th of July she made the note that Wilson was coherent when she spoke to him.
There is no doubt that Wilson, when admitted to the hospital, not only suffered from severe physical problems but also from withdrawal symptoms commonly known as the D. T. ’ s. One report stated that he had been using a half gallon of wine a day; another two gallons of wine a week.
Dr. Steven Bradley Finch, a specialist in psychiatry, was called as an expert witness by the appellant. His conclusion, after studying the medical reports and record, was:
A. I have formed a conclusion from my examination of the medical records. My conclusion is that this man in all likelihood was suffering from an organic psychosis as well as his physical disorders and that this was probably related to an alcohol ingestion. It is my further opinion that between the date of admission on July the 5th until the evening of July the 9th or the morning of July the 10th, that the patient was unable to carry a stream of thought to its logical conclusion. And that his judgment was impaired to the extent that he probably could not make a logical judgment.
Reviewing the evidence, it is undisputed that Wilson suffered severely and suffered from hallucinations. A person may hallucinate without outward signs of hallucination. Dr. King admitted he was not competent at 7:30 a.m. and 11:00 a.m. according to hospital records. The great weight of the evidence is he was not mentally competent on the morning of the 7th to make a valid will.
It is possible that he had a lucid interval when he signed the will. Yet the preponderance of the evidence is otherwise. Dr. King, the only witness for appellant on mental capacity, was not present when the will was signed. Neither attesting witness nor Lillie Wilson testified positively about his mental capacity.
The medical records, the testimony of the nurse and Dr. Finch’s testimony clearly demonstrate Wilson’s condition.
The question must be asked then, where is the evidence beyond a reasonable doubt that Wilson had the mental capacity to make a will? It is not present. We would have to presume that Wilson was in a lucid interval, not confused or suffering from hallucinations or drugs at the precise time he signed the document. We are unwilling to make that presumption in the face of the evidence in this case.
The probate judge’s findings are against the preponderance of the evidence and the cause is reversed with directions to dismiss the order admitting the will to probate.
Reversed.
Harris, C.J., not participating.
Byrd, J. dissents. | [
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Mehaity, J.
This action was instituted by the appellant to recover certain property held under mortgage. On October 31, 1936, the appellee, Melvin E. Whitworth, applied to the appellant to borrow $150. He executed a promissory note for $259.11, and on the same day to secure the payment of said note, he executed a chattel mortgage conveying a Plymouth automobile and certain household goods. He had paid on the note $64.80. Before the appellant would lend the money he required appel-lee to take a policy of insurance for $3,500, the annual premium on which was $84.07. In addition to this premium, appellee was charged with $3.30 for insurance on his automobile, $4.50 service fee, and $12.24 discount. The insurance premium and other charges added to the $150, amounted to $259.11.
Suit was originally filed in the municipal court. Thé case was appealed to the circuit court, and the appellee filed an answer charging that the contract was usurious.
Porter Wilson, the lender, testified as to the loan and the charges and the amount paid. It appeared, however, from his testimony that he knew nothing about the facts except what he learned from the record. His agent, Mr. Vollman, made the contract with appellee, but Voll-man did not testify. One of the requirements when loans were made was that the applicant take out life insurance, and the insurance must be taken out in the Pyramid Life Insurance Company. Mr. Wilson, the lender, was an agent for the life insurance company. When Wilson was asked how much he got of the $84.70 premium, appellant objected, and the objection was sustained. The witness answered, however, that he could not see where that would make any difference. When objection was made to this testimony, witness was asked how much Mr. Vollman got of the premium, and the witness answered that that was immaterial and objection was made by appellant’s attorney, and was sustained. Mr. Wilson testified, however, that he did not make a loan, unless the applicant took out life insurance. That he let Mr. Whitworth have $150 and took his note for $269.11. It also appears from the evidence that the appellant took out insurance on the automobile included in the mortgage, and this, of course, was charged to ap-pellee. The record does not disclose why Mr. Vollman who made the arrangements with Mr. Whitworth did not testify. While appellant charged $3.30 for automobile insurance, the insurance policy on the automobile was not introduced, and appears to have been missing from the files. When asked what was the meaning of the $12.24 charged as discount, appellant said it was a charge to take care of the loan'.
Appellee, Whitworth, testified that the note and mortgage were -both blank when he signed them; that he did not understand that he was to pay all the charges or amounts that he is now charged with. He only got $150 and gave a note and mortgage for $259.11. Appellee testified that he did not know what the amount would be when he signed the blank note; that he had paid $64.80 and.owed $85.20 which he was willing to pay. When ap-pellee was asked if he had figured the interest to see how much he was charged for the loan, objection was made, and sustained. Witness, also, testified that when he learned the facts he offered the check back and did not want to take the insurance, but that the lender refused to take it back.
Witness was corroborated in his statements about the loan by his father, J. F. Whitworth.
Appellee testified that lie worked for the Chicago Mill & Lumber Company in West Helena, where he lived; that he had worked for this company about eight years, and that he received 22 cents an Lour; worked on an average from five to eight hours a day. The evidence shows that the appellant made an investigation to learn about appellee’s moral character and financial standing, and he, of course, learned these facts.
Each party requested the court to direct a verdict in his favor. The court then directed the jury to find for the defendant, which it did, and .judgment was entered for the defendant. The case is here on appeal.
Under our constitution, all contracts for a greater rate of interest than 10 per centum per annum are void as to principal and interest. Article 19, § 13, Constitution of the state of Arkansas.
In this case the appellee desired to borrow $150, and applied to Mr. Wilson, who was in the 'business of lending money. Mr. Wilson was also agent of the Pyramid Life Insurance Company and required all applicants for loans to take life insurance in his company. Before he would lend $150 to appellee, he required him to take a life insurance policy for $3,500. In addition to this he collected interest and made several other charges and took a note for $259.11, secured by mortgage on personal property. Whitworth, appellee, was earning 22 cents an hour and working on an average of five to eight hours a day. He had been in the employ of the same company for several years.
This court has many times held that collateral contracts entered into contemporaneously with a contract for the lending and borrowing of money, where the collateral agreement is in itself lawful and made in good faith, will not invalidate the contract for the loan of money as usurious, although its effect might be to exact more from the borrower than the sum which would accrue to the lender from a legal rate of interest. But it was recently said, in referring to the above section of the constitution:
‘ ‘ This constitutional inhibition cannot he avoided by any trick or devise, and the courts will closely scrutinize every suspicious transaction in order to ascertain its real nature; and if it appears that the contract is merely one for the loan of money with the intention on the part of the lender to exact more than the lawful rate of interest, the contract will he declared usurious and void.” Hogan v. Thompson, 186 Ark. 497, 54 S. W. 2d 303; Ellenbogen v. Griffey, 55 Ark. 268, 18 S. W. 126; Reeve v. Ladies’ Building Ass’n, 56 Ark. 335, 19 S. W. 917, 18 L. R. A. 129; Dickerson-Reed, etc., Co. v. Stroupe, 169 Ark. 277, 275 S. W. 520; Hershey v. Luce, 56 Ark. 320, 19 S. W. 963, 20 S. W. 6.
The lender in the instant case, of course, knew that a man employed to labor for 22 cents an hour could not possibly earn enough to make a living for his family and pay the premium on $3,500 insurance. The charges that appellee was compelled to pay to get $150 amounted to more than 70 per cent., and as the Kentucky court said: “The statute must be rendered a mere dead letter, or such contracts must be overhaled. In the language of Lord Mansfield on a like occasion, it may be truly said, ‘it is impossible to wink so hard as not- to see,’ what was expected by this contract — that its end was more interest on the money .advanced than the law authorized.” Heytle v. Archibald Logan, 1, A. K. Marsh (Ky.) 529.
It is not necessary for both parties to intend that an unlawful rate of interest shall be charged, but if the lender alone charges or receives more than is lawful, the contract is void. In discussing this question, Judge Mitchell of the Minnesota Supreme Court, speaking for the court, said:
“There are some loose statements in the text-books, and perhaps some judicial authority, to the effect thai to render a contract usurious both parties must be cognizant of the fact constituting usury, and must have a common purpose to evade the law. But it seems to us that it would be contrary both to the language and policy of the usury law to hold any such doctrine, as thus broadly stated. These laws are enacted to protect the weak and necessitous from oppression. The borrower is not parti-ceps criminis with the lender, whatever his knowledge or intention may he. The lender alone is the violator of the law, and against him alone are its penalties enacted. It would he indeed strange if the only party who could violate the law had intentionally done so, and could escape its penalty because hy some device or deception he had so deceived the borrower as to’ conceal from him the fact that he was taking usury.” Lukens v. Hazlett, 37 Minn. 441, 35 S. W. 265.
This court, in an opinion hy the late Chief Justice Hart, approved the rule announced by the Minnesota Supreme Court and several other courts, and stated: “We are of the opinion that the principles announced in these cases are sound and should control here. Therefore, we think the transaction was merely a colorable device to cover usury and should not be upheld.” Doyle v. American Loan Co., 185 Ark. 233, 46 S. W. 2d 803.
“This court has uniformly recognized that borrowing and lending money is indispensable to constitute usury; but that, no matter what the form of the contract may be, no device or shift intended to evade the usury laws will be upheld. The court has also recognized that, while an exhorbitant price- will not of itself constitute usury, yet it is a circumstance to be considered in determining whether the transaction was a bona fide sale of property or was intended for a cover for usury. It has been frequently judicially stated that one of the most usual forms of usury is a pretended sale of goods or other property.” Home Bldg. & Savings Ass’n v. Shotwell, 183 Ark. 750, 38 S. W. 2d 552.
The rules herein announced have been approved by this court many times. Jones v. Phillippe, 135 Ark. 578, 206 S. W. 40; Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. W. 569.
We think the facts in this case show conclusively that it was the intention of the lender to charge and receive more than the lawful rate of interest. When Mr. Wilson was testifying, he was asked on cross-examina tion how much of the insurance premium he received. He said it was immaterial and his attorney objected to the question, which objection was sustained. It must be remembered that Mr. Wilson was the agent, of the insurance company, and it is a matter of common knowledge that the agent gets a considerable portion of the first premium on an insurance policy. In this case, however, we do not know the amount, because the lender declined to answer, but the facts are sufficient to show that the lender was charging and was to receive more than the lawful rate of interest.
If there was any question of fact in this ease, this was settled by the finding of the trial judge. Where each party requests a peremptory instruction, the finding of the trial court is as binding as the verdict of the jury.
The judgment of the circuit court is affirmed.
Smith, C. J., and Humphreys, J., concur; Smith, J., dissents. | [
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John I. Purtle, Justice.
The will of John F. Owen was admitted to probate on June 11, 1976. His widow subsequently elected to take against the will. May 18, 1978, the probate court assigned dower and homestead rights to the widow and directed certain payments be made to her. Certain properties were ordered sold to satisfy the widow’s claims. May 15, 1979, the court directed the executor to comply with the order of May 18,1978. On June 12,1979, the executor appealed from the order of May 15, 1979.
For reversal appellant claims article 9 § 6 of the Constitution of Arkansas is violative of the Fourteenth Amendment to the Constitution of the United States and further that the following Arkansas statutes are unconstitutional: Ark. Stat. Ann. § 60-501 (Repl. 1971), Ark. Stat. Ann. §§ 61-201, 61-202, 61-203, 61-207, 61-210, 61-228, 61-229 (Repl. 1971), and Ark. Stat. Ann. § 62-2501 (Repl. 1971). The allegation is these statutes are unconstitutional because they arbitrarily discriminate on the basis of gender. We affirm the trial court because a timely appeal was not filed.
The facts reveal John F. Owen executed a will on June 21, 1972, in which he left all his bounty to his wife, Mildred Owen. The will provided, in the event Mildred did not survive him, his bounty would be divided equally between the eight children born to decedent and Mildred. Mildred predeceased the decedent and he married Opal sometime before he died on May 28, 1976. His original will was not revoked during his lifetime. The record as abstracted does not show how long decedent and appellee were married. In any event, his will was admitted to probate on June 11, 1976, at the request of his son, Lee Ray Owen, who had been nominated as executor in the will.
Inventory of the estate was filed on December 7, 1976. The next item abstracted in the record is a memorandum brief filed by appellant on November 8, 1977, in which he alleged the appellee already owned a homestead, left by her former husband. The memorandum also alleged Opal Owen had abandoned the homestead in decedent’s estate. The argument was apparently based upon the provisions of article 9 § 6 of the Constitution of Arkansas. The thrust of the argument contained in the memorandum was that appellee could not claim two homesteads.
November 23, 1977, the court ordered the claimed homestead exonerated from an existing mortgage in view of the solvency of the estate. May 19,1978, the court entered an order pursuant to a final hearing before the court on the petition of Opal Owen for dower and homestead rights in the properties of decedent. This order assigned the widow one-third of all personal properties of the estate and ordered the sale of all real properties, including the selected homestead, and that the widow be paid $2,500 from the proceeds of said sale for the purpose of acquiring another homestead. Also, the order directed payment to the widow of certain sums as her share of rents which had been collected by the estate.
Nothing further appears to have occurred until the order of May 15,1979, wherein the court directed compliance with its former order of May 18, 1978. By this time additional rents had been collected and these were apportioned in accordance with the prior order of the court. The court noted the objections of appellant as to the constitutionality of the dower and homestead statutes. Obviously an appeal was filed although it is not noted in the abstract or brief. The record does not disclose whether the estate has been closed.
Although the appellant makes excellent arguments concerning the constitutionality of certain provisions of the constitution and the laws, we do not reach them because there was no timely appeal. Ark. Stat. Ann. § 62-2016 (Repl. 1971) provides for appeals to the supreme court in matters relating to decedents’ estates:
a.. .
b.. .
c.When an appeal is taken with respect to any appeal-able order in the administration of a decedent’s estate, made prior to the order of final distribution, other than an order admitting or denying the probate of a will or appointing or refusing to appoint a personal representa tive, the Probate Court or Supreme Court may in its discretion order that the appeal be stayed until the order of final distribution is made and that the appeal be heard only as a part of any appeal which may be taken from the order of final distribution. This subsection shall not apply to guardianships.
d. When an appeal is taken from the order of final distribution in the administration of a decedent’s estate, all prior appealable orders and judgments to which the appellant has filed objections in writing within sixty (60) days after the order of judgment was rendered and from which an appeal has not theretofore been taken, except orders admitting or denying the probate of a will or appointing a personal representative shall, at the election of the appellant, be reviewed. The appellant shall indicate such election by clearly stating in the appeal the orders which he desires to have reviewed.
Section (g) provides that appellate procedures applicable to equity cases will be applied except as stated in the act. The exceptions are those stated above.
The order of May 18,1978, was final as to the dower and homestead rights of appellee and was an appealable order. Ark. Stat. Ann. § 27-2101 (Repl. 1979) and Ark. Stat. Ann. § 62-2016 (Repl. 1971). Boyd v. Bradley, 239 Ark. 120, 388 S.W. 2d 107 (1965); Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967); Smith v. Smith, 235 Ark. 932, 362 S.W. 2d 719 (1962); and Watkins v. Watkins, 242 Ark. 200, 412 S.W. 2d 609 (1967).
Whether the 30 day (Ark. Stat. Ann. § 27-2106.1 (Repl. 1979) ) or 60 day (Ark. Stat. Ann § 62-2016 (Repl. 1971)) time limit for appeal applies is of no consequence because appellant complied with neither. Based upon the record before us we have no choice but to affirm the decree of the court entered herein on May 18, 1978.
Affirmed.
Stroud and Mays, JJ, not participating. | [
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George Rose Smith, Justice.
This is a suit by the appellant, Worth James Construction Company, to enjoin the Jacksonville Water Commission from awarding a construction contract to S & S Construction Company (also a defendant). Worth James contends that it should be awarded the contract,, because it was admittedly the low bidder among the six contractors bidding for the job. The chancellor denied relief on several grounds, one of them being that Worth James has no standing to sue and another that the Commission was justified, in the city’s best interest, in not awarding the contract to the lowest bidder.
The letting of the contract was governed by Ark. Stat. Ann. § 14-612 (Repl. 1979). That statute, as we have said about a different law, does not provide “that the contract shall be let to the person whose bid is lowest in terms of money.” Street Improvement Dist. No. 130 of Hot Springs v. Crockett, 181 Ark. 869, 28 S.W. 2d 331 (1930). Instead, the present statute directs that the advertisement for bids contain a statement (as this one did) that the Commission reserves the right “to reject any or all bids.” The statute also provides that after the Commission has opened and compared the bids, it shall award the contract to the lowest responsible bidder, “provided that [the Commission] be of the opinion that the best interests of the taxing unit would be served thereby.” Here the advertisement for bids tracked that provision by reciting that the Commission reserved the right “to accept the proposal which will best serve the interest of the City of Jacksonville.”
The contract was for the construction of more than two miles of 24-inch water line and almost one mile of 12-inch water line. The specifications provided that the pipe to be furnished by the contractor might be ductile iron pipe, prestressed concrete pipe, or pretensioned concrete pipe. The Commission’s consulting engineers supplied the bidding forms, which contemplated that each bidder would insert in appropriate blanks a price per foot for at least one kind of pipe, extend the lowest unit price for the total footage, and include the resulting figure in the total bid. There were some 20 other items in addition to the pipe, but it is readily apparent that the bottom-line total was the important figure, since the constituent prices might be adjusted by the bidder pretty much at will.
The bids were opened on May 11, 1979. The figures were compiled in detail and certified by the Commission’s engineers. The Worth James bid of $707,586.17 was the lowest of the six bids. Worth James had selected pretensioned concrete pipe for the 24-inch line and ductile iron pipe for the 12-inch line. The appellee S & S’s bid of $714,755.10 was the third lowest bid, but it was the lowest bid specifying ductile iron pipe throughout. (The difference in the two bids lay in the other items, as the S & S bid was actually lower than that of Worth James for each of the three kinds of pipe. This is not really material, however, as it was the grand total that mattered. The only significance of the per-foot unit prices seems to stem from a clause stating that in the final settlement the total bid price will be adjusted for variations from the quantities listed on the form supplied to the bidders.)
After the opening of the bids on May 11, the three Commissioners met on May 16 to award the contract. The Commission’s manager presented a statement strongly recommending the use of ductile iron pipe, because (a) both management and maintenance personnel had working experience with it, (b) it is a proven material in Arkansas, and (c) there is about 40,000 feet of existing ductile iron pipe in the Jacksonville Water System, which was stated to be a very important consideration in view of there being ductile iron maintenance equipment already on hand. The statement recognized that pretensioned concrete pipe was acceptable and in conformity with the specifications, but the manager thought that the $7,186.93 difference between the two bids (about 1%) could be justified for the reasons he gave. Of course, as Worth James points out, all those matters could have been determined before the specifications and bidding forms were prepared. The manager testified at the hearing below that if the difference between the two bids had been $100,000 instead of about $7,000, he could not have justified the use of iron pipe.
At the Commission meeting on May 16, one of the three commissioners moved that the contract be awarded to S & S on the basis of its use of ductile iron pipe. The motion was seconded, but upon an objection by the Worth James attorney, the motion was tabled to permit the Commission’s counsel to research the law. A week later the commissioners met again and were advised by counsel that they could select any bid. They unanimously awarded the contract to S & S. This suit was filed two days later, on May 25.
The chancellor rested his decision in part upon a finding that Worth James has no standing to maintain the suit. The chancellor relied upon Arkansas Democrat Co. v. Press Printing Co., 57 Ark. 322, 21 S.W. 586 (1893), and Bank of Eastern Ark. v. Bank of Forrest City, 94 Ark. 311, 126 S.W. 837 (1910), both holding that the low bidder on a public contract has no standing to question an award to a higher bidder, because the laws requiring competitive bidding are passed for the benefit of the public and can be enforced only at the instance of a taxpayer (or here a ratepayer, as the water line is to be financed by revenue bonds).
We think it best not to explore the question of standing, because an affirmance on that ground might not preclude the maintenance of a rate payer’s suit, with attendant delay. The parties and their counsel have expedited this case, doubtless because incessant inflation is a threat both to the city and to the successful bidder. The entire litigation has taken less than seven months. We have no inclination to decide the case upon a ground that might result in delay.
The chancellor found, upon the merits, that “the proof fails to even suggest that in making this contract award to S & S, [the Commission] acted in bad faith, with favoritism, or for any reason except a determination that [the use of iron pipe] was in the best interest of the City. I conclude the statute gives it this discretion, and that this determination is neither unlawful or arbitrary. ’ ’ There is actually no evidence to the contrary; so the issue narrows down to one of law.
As we have seen, both the statute and the advertisement for bids gave notice that the Commission could reject any or all bids and that the Commission reserved the right to accept the bid that would best serve the interest of the city. There is much authority to support the view that the Commission acted within the limits contemplated by the statute. The following statement in an annotation on the subject in 27 A.L.R. 2d 917, 924 (1953), is supported by many citations:
Where the public officials have the right to reject any and all bids for a public contract, the view is generally taken that they may consider the differences or variations in the character or quality of the materials, articles, or work proposed to be furnished by the various bidders, in determining whether to accept any of the bids, or which bid to accept.
Of course the rejection of the lowest bid must be, as it was here, for good cause and in good faith.
Worth James’s real grievance, one that has given us much concern, is that the Commission should have asserted its preference for ductile iron pipe at the very beginning, by requiring truly alternate bids (as North Little Rock did in the letting of a companion contract for part of the same project). See McQuillin, Municipal Corporations, § 29.55 (3d ed., 1966 revision). Instead, the forms for bidding led the bidders to believe that the Commission had no preference among the three specified kinds of pipe. Had Worth James known about the preference for iron pipe, it might, it argues, have submitted an overall bid with a lower figure than the one it inserted as its unit price for 24-inch iron pipe.
Even so, we are unwilling to say as a matter of law that in the circumstances the Commission was without any choice except to accept the Worth James bid, which specified pretensioned concrete pipe. The fact remains that Worth James did insert in its bid a figure for ductile iron 24-inch pipe, which, if extended, would have made its bid $74,558.17 more than the one submitted by S & S. Moreover, Worth James has made no offer in its pleadings or testimony to supply iron pipe either for the amount of its own bid or for that of the S & S bid. Thus we cannot say with confidence that Worth James was actually misled to its detriment.
Affirmed.
Harris, C.J., not participating.
Byrd, J., dissents. | [
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Frank Holt, Justice.
Appellee is a commercial grower of tomatoes and appellant is a distributor and seller of tomato seed. Appellee brought this action to recover damages for breach of warranty by appellant in the sale of tomato seed. When the trial court overruled appellant’s demurrer to appellee’s complaint, as amended, the appellant refused to plead further. Thereupon the trial court, sitting as a jury, proceeded to award damages to the appellee, after taking evidence upon this issue.
The appellant first contends that it was error for the trial court to overrule its demurrer to the complaint as amended. This contention is based upon the premise that appellee did not purchase a product sold by the appellant. In his complaint appellee asserts that appellant packaged, labeled and sold tomato seed as “Green’s Pink Shipper” variety, knowing the seed would be purchased by the public to raise and sell “Pink Shipper Tomatoes” for a profit; that this seed was so represented and sold to Brown Seed Store, which retailer then so represented and sold the seed to Guy Jones (who is engaged in the business of growing tomato seedlings and selling the plants to commercial tomato growers); that appellee purchased, from Jones, plants grown from this particular seed, transplanted and raised them “in accordance with accepted standards of farming” on three-fourths of an acre of his farm; that appellant represented and warranted the seed from which the tomato plants were grown as being “Green’s Pink Shipper” tomato seed, when, in fact, it was some unknown variety of tomato seed which produced an inferior tomato; that appellant expressly and impliedly warranted to appellee, through Brown and Jones, that its product was “Pink Shipper” variety of merchantable quality and fit for intended purposes; and that because of breach of warranty, the appellee was unable to market his tomatoes which spoiled in the field, resulting in a crop loss of $900 caused by the alleged breach of warranty.
In testing the sufficiency of a complaint against a general demurrer, all well pleaded allegations and all inferences that can be reasonably drawn therefrom are admitted to be true. United Interchange, Inc. v. Rowe, 230 Ark. 905, 327 S.W. 2d 547 (1959). Every reasonable intendment and presumption is to be made in favor of the complaint and a general demurrer should be overruled if the facts stated, together with every reasonable inference, constitute a cause of action. Donham, Commissioner v. Neely Co., 235 Ark. 710, 361 S.W. 2d 650 (1962); U. S. F. & G. Co. v. Moore, 233 Ark. 703, 346 S.W. 2d 524 (1961).
A cause of action exists, based upon a breach of warranty, where one sells seed to an immediate purchaser upon a misrepresentation of a certain variety and fitness, and the purchaser, who relied upon the warranty, is entitled to recover damages from the seller for tho breach of warranty. Earle v. Boyer, 172 Ark. 534, 289 S.W. 490 (1927). And the same is true where inferior plants are sold and the purchaser relies upon a warranty of fitness. Smeltzer v. Tippin, 109 Ark. 275, 160 S.W. 221 (1913).
Appellant, however, argues that appellee’s cause of action, if any, is against the seller of the tomato plants and cannot reach the appellant because it sold appellee nothing. Appellant contends that it has made no warranty, express or implied, with respect to the tomato plants purchased by appellee and that its warranty, with respect to the seed, does not extend to and reach appellee, a remote purchaser, because appellee is a purchaser of the tomato plant and not the seed which was distributed by the appellant. We think appellant’s argument is without merit.
The defense or shield of lack of privity is now removed where an action is brought against a seller of goods to recover damages for breach of warranty. Ark. Stat. Ann. § 85-2-318.1 (Supp. 1967). That statute reads:
“The lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence, although the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods.”
Plainly, a seller of tomato seed might reasonably expect a commercial grower of tomatoes (as appellee in the case at bar) to use or be affected by the seeds distributed and sold on the market by the seller. The appellee is an integral part of the distributive chain for production purposes.
According to the allegations, which are admitted as being true, appellee purchased tomato plants and raised tomatoes from plants which were grown from the very seed distributed, warranted and sold by appellant as “Green’s Pink Shipper” variety, when, in fact, the seed was of an inferior and unknown variety. To be sure, the seed changed in natural form into plants after appellant placed it into channels of commerce. Yet, such transformation was an expected result by the laws of nature and not by the hand of man. We hold that when a seller of tomato seed warrants it to be of particular fitness and variety, the warranty extends in the distributive chain to a purchaser of tomato plants which are grown from the seed for commercial purposes.
Appellant next asserts that the complaint is defective because it does not contain an allegation of notice to the appellant with respect to the claimed breach of warranty. This contention is based upon Ark. Stat. Ann. § 85-2-607(3) (a) (Add. 1961) which requires a buyer to give notice of a breach of warranty to the seller within a reasonable time after the buyer discovers, or should have discovered, the alleged breach. We must agree with the appellant that' the appellee’s complaint is subject to a demurrer since it does not contain an allegation of notice.
The issue of allegation of notice, under this section, seems to be one of first impression in our state. However, it appears that in jurisdictions which have had occasion to interpret this section, the giving of notice must be pleaded as a condition precedent to recovery. See Avant Garde, Inc. v. Armtex, Inc., 4 UCC Rep. Serv. 949 (1967), a decision of a New York Supreme Court; Nolowka v. York Farm Bureau Coop. Assn., 2 UCC Rep. Serv. 445 (1963), a decision by a Pennsylvania trial court. In Avant Garde the court said: * * * While plaintiff alleges unfitness, there is no allegation of notice of defect given within a reasonable time or at any time (Uniform Commercial Code, § 2-607[3] [a]).” The court held the complaint failed to state a cause of action for failure to allege notice. The pleading of notice was required in United States v. American Radiator & Stan. San. Corp., 115 F. Supp. 422 (Dist. Ct. Minn. 1953) in an action for breach of implied warranty brought by the United States against suppliers of a subcontractor on a construction project. Further, this requirement appears to be the majority view under the Uniform Sales Act, or where there is a statutory requirement of notice. Smith v. Pizitz of Bessemer, Inc., 122 So. 2d 591 (Ala. 1960). There the court said:
“* * * it appears that a majority of the American courts which have considered the problem have held the notice requirement applicable in a case of the nature now before this court and that such notice should be alleged in the complaint as a condition precedent to recovery. [citing cases]”
See, also, Maxwell Co. v. Southern Oregon Cas Corp., 158 Ore. 168, 74 P. 2d 594, 114 A.L.R. 697 (1937); Mawhinney v. Jensen, 120 Utah 142, 232 P. 2d 769 (1951); Sweetheart Baby Needs v. Texilon Co., 166 N.Y.S. 2d 838 (1957); Hellenbrand v. Bowar, 16 Wis. 2d 264, 114 N.W. 2d 418 (1962); Nekuda v. Allis-Chalmers Mfg. Co., 175 Neb. 396, 121 N.W. 2d 819 (1963); Salecki v. Coca Cola Bottling Co. of Hartford, 20 Conn. Supp. 143, 127 A. 2d 497 (1956); Title Ins. & Trust Co. v. Affiliated Gas Equipment, 12 Cal. Rptr. 729 (1961); Faucette v. Lucky Stores, Inc., 33 Cal. Rptr. 215 (1963).
The Committee Comment following § 85-2-607 reflects that it also intended that notice be a condition precedent to any recovery since it refers to the notice as the “notification which saves the buyer’s rights.” The purpose of the statutory requirement of notice to the seller of breach of warranty is to enable the seller to minimize damages in some manner, such as correcting the defect, and also to give the seller some immunity against stale claims. Of course, the sufficiency of notice and what is considered to be a reasonable time within which to give notice of breach of warranty are ordinarily questions of fact for the jury, based upon the circumstances in each case. See Committee Com ment, UCC § 85-2-607 and Uniform Laws, Annotated (UCC) § 2-607.
The appellee relies upon Donham, Commissioner v. Neely Co., supra, where we said that a complaint was not fatally defective because it did not specifically allege that a taxpayer had complied with certain rules and regulations of our statutes and that any noncompliance was a question of fact and an affirmative defense which could be raised by proper plea or answer. We do not consider this case applicable. The case at bar is a breach of warranty action. We have held, in an action based upon a breach of warranty, that where a notice of defect is required, it is necessary for a buyer to allege and prove, as a condition precedent to a recovery, that there was compliance with the requirement of notice. Williams v. Newkirk, 121 Ark. 439, 181 S.W. 304 (1915). See, also, Carle v. Avery Power Machinery Co., 185 Ark. 799, 49 S.W. 2d 599 (1932).
We hold that the giving of reasonable notice is a condition precedent to recovery in this action and that the giving of notice must be alleged in the complaint in order to state a cause of action.
Nexi appellant argues that the damages [$746.16] allowed to the appellee by the court, sitting as a jury, arc excessive and unwarranted by the evidence. We do not agree. Inasmuch as we find it necessary to reverse this case for failure to allege notice of breach of warranty, we deem it unnecessary to discuss this point. However, we think it proper to observe that Ark. Stat. Ann. §§ 85-2-714 and 85-2-715 provide for the recovery of damages, including consequential damages, resulting from a seller’s breach of warranty. In a Committee Comment on our Uniform Commercial Code (§ 85-2-715) we find:
“4. The burden of proving the extent of loss incurred by way of consequential damage is on the buyer, but the section on liberal administration of remedies rejects any doctrine of certainty which requires almost mathematical precision in the proof of loss. Loss may be determined in any manner which is reasonable under the circumstances. ’ ’
The judgment is reversed and the cause remanded with the right of the appellee to amend his complaint to contain the allegation of notice. Otherwise, the demurrer will be sustained.
Fogleman and Jones, JJ., concur. | [
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Conley Byrd, Justice.
During the conspiracy to murder trial of Rodney Coston, and out of the hearing of the jury, respondent Henry M. Britt, Circuit Judge, excluded the public and the press from a “Denno” hearing conducted pursuant to Ark. Stat. Ann. § 43-2105 (Repl. 1977). The respondent, on one other occasion during a proffer for the record of testimony held to be inadmissible, ruled that petitioner Ginger Shiras could remain present during the proffer only upon condition that the respondent could censor any story written about the proffer. Petitioner would not submit to the censorship, and was accordingly excluded during the proffer. This petition was brought to challenge the actions of respondent.
We have reviewed the petition for mandamus, as an after-the-fact situation, for the reasons set forth in Commercial Printing Co. & Tosca v. Lee, 262 Ark. 87, 553 S.W. 2d 270 (1977).
During oral argument, it was conceded by petitioner that she had no greater rights to attend the trial than any other member of the public. Consequently, we shall only deal with the rights of petitioner as a member of the public.
In asking for the issuance of a writ, petitioners contend that the exclusion from the “Denno” hearing, Ark. Stat. Ann. § 43-2105 (Repl. 1977), and the proffer of proof by the witness was a violation of Ark. Stat. Ann. § 22-109 (Repl. 1962) and Art. 2 § 6 of the Constitution of Arkansas and the First and Fourteenth Amendments to the Constitution of the United States. Respondent asserts that petitioner’s legal rights were not violated since the press has only a limited right of access to in camera hearings and that the challenged action of respondent advanced the public interest in a fair and prompt criminal trial in which the rights of the accused were protected.
Most of the briefs of both petitioner and respondent are centered around her alleged Federal constitutional rights and the recent case of Gannett Co., Inc. v. DePasquale, County Court Judge of Seneca County, N.Y., U.S., 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). However, we need not reach those issues, because as we view the issues before us, they are controlled by Ark. Stat. Ann. § 22-109 (Repl. 1962) which provides:
“The sittings of every court shall be public, and every person may freely attend the same.”
In Commercial Printing Co., & Tosca v. Lee, supra, after pointing to Ark. Stat. Ann. § 22-109 (Repl. 1962), and the fact that the Constitution of Arkansas does not guarantee a private trial, we stated:
This is no new premise. Probably the best known legal writer of all time, Sir William Blackstone, a member of His Majesty’s Court of Common Pleas during the 18th Century, in his Commentaries on the Laws of England, Volume 4, Page 1428, Paragraph 5 (Lewis’ Edition), stated:
‘Public wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community in its social aggregate capacity.’
Lay citizens, in criticizing courts in reversing or dismissing criminal cases because of the state’s failure to comply with some legal requirement (though perhaps thought to be technical), frequently comment that the courts scrupulously observe every right of a defendant, but sometimes seem to overlook that the public also is directly affected by criminal acts and has a direct interest in the outcome of the proceedings.
Additionally, the courthouses are paid for with public funds; the judges, jurors, state’s attorney (and defense attorneys who have been appointed by the court because of the indigency of their clients) are paid with public funds. The public has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice, and it would require unusual circumstances for this right to be held subordinate to the contention of a defendant that he is prejudiced by a public trial (or any part thereof).
As stated previously, we have only one question before us, viz, was the court’s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic ‘No!’ ”
Respondent contends that the challenged action actually advanced the public interest in a fair trial by protecting the rights of the accused. In this connection he points out that the most damaging outside information in a criminal trial comes from suppression hearings. He acknowledges that society benefits when there is access to all open court proceedings but concludes that the State’s obligation to protect the right of the accused to a constitutionally fair, speedy and impartial trial must be given even greater consideration.
We cannot agree with respondent’s emphasis on the rights of the accused for to do so puts the courts in the position of letting the tail wag the dog. Courts operate for the benefit of the public and like Caesar’s wife should appear to be above reproach. When the public loses confidence in the ability of the courts to fully and impartially deal with those accused of crime, the public has a tendency to take the law into its own hands. In that case all of society is the loser because the innocent have no way of protecting themselves from their accusers.
Furthermore, the handling of the public’s business in secret and behind closed doors not only causes the public to view the results with distrust, but it deprives the public of sufficient knowledge to make adjustments or reform in the law or the judiciary. Just recently a farmer by trade introduced and put through the General Assembly a judicial redistricting of the several judicial circuits and districts in this State. Needless to say, we have concluded that the rights of the accused to a fair and impartial trial do not exceed the rights of the public to observe justice in progress.
Writ granted. | [
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David Newbern, Judge.
In this replevin action the appellee sought return of her pickup truck and some clothing in the truck she alleged had been taken by the appellants. She also sought damages of $1700.00 resulting from the alleged wrongful detention of and injury to her property. A jury verdict awarded the appellee possession of the property and damages of $2500.00. The damage award was reduced to $1700.00 to conform to the prayer in the complaint, and a judgment was entered upon the verdict. The appellants’ first point for reversal is “that the evidence was insufficient to support a finding by a preponderance of the evidence that appellant had wrongfully detained the property of appellee. ’ ’
We assume the appellants realize we cannot reverse on the basis of our own determination of the preponderance of the evidence, as it was the prerogative of the jury to deter mine that. We will affirm if there was any substantial evidence in support of the verdict. Boyd v. Reddick, 264 Ark. 671, 573 S.W. 2d 634 (1978), and Love, et al v. H. F. Construction Co., 261 Ark. 831, 552 S.W. 2d 15 (1977).
If we assume the appellants are not asking us to determine the preponderance of the evidence, their first point must be that the evidence was not sufficient to have been allowed to go to the jury. As Rule 50 (e) of the Arkansas Rules of Civil Procedure was not in effect at the time this case was tried, we will review the matter, reluctantly, although the abstract does not show that a motion was made for directed verdict, judgment n.o.v. or new trial. Our reluctance is heightened in that appellants’ counsel does not cite one case which supports the notion that insufficiency of the evidence may be a basis of appeal or reversal in the circumstances presented here.
It is enough for us to say that the evidence in this case was in great conflict, but the appellee’s testimony thkt she had left her truck on the appellant Eoff s property only three and 1/2 hours while assisting her mother, who was one of Eoff s tenants, was clearly sufficient to controvert the evidence presented by the appellants on their primary theory of the case, which was that the appellee had abandoned her truck and clothing for some 30 days on the appellant Eoff s property. The question clearly was for the jury to decide.
As his second point, appellants’ counsel asserts that Gilbow, who was the agent of Eoff, allegedly acting upon Eoff s instruction, could not be liable in this matter because he was acting solely as the agent of Eoff. The appellants’ counsel sought and was denied an instruction to that effect.
The trial court did not err in refusing the requested instruction. The only cases cited by the appellants are to the effect that a principal is not liable where an agent exceeds his authority. It is elementary agency law that the liability of a principal for his agent’s act does not absolve the agent. Burt v. Missouri Pac. R. Co., 294 F. 911 (E.D. Ark. 1924), Sell, Law of Agency, §§ 195 and 198 (1975), and Mechem,Law of Agency, §§ 1455 and 1456 (1914).
Affirmed.
The case was appealed to the Arkansas Supreme Court and assigned to us in accordance with Rule 29(3). | [
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George K. Cracraft, Chief Judge.
Searcy Steel Company appeals from an order of the circuit court holding that service of their writ of garnishment upon Mercantile Bank of Jonesboro was not proper and therefore the bank had no obligation to respond to the writ. Appellant contends that the trial court erred in ruling that the writ was not properly served and denying it judgment against the appellee in the amount of the judgment debtor’s deposit with appellee on the date the writ of garnishment was served. We agree.
This case was submitted to the trial court on a stipulation of fact. It was stipulated that on July 16, 1982, the appellant obtained a judgment against Big Mac Construction Company in the amount of $78,288.00 plus interest. On July 27,1982, a writ of garnishment in proper form was issued by the clerk of the Craighead County Circuit Court naming the appellee as garnishee and containing the required allegations and interrogatories concerning appellee’s indebtedness to the judgment-debtor. The Craighead County Sheriff attempted to serve the writ on the appellee on July 27,1982, by delivering a copy to an employee of the appellee. It was stipulated that that employee was a part-time employee with a job in “marketing, development, and public relations,” a position he had occupied for approximately five years. According to the stipulation, the employee, Hugh Atwood, had all the appearances of a corporate officer but was not one, and had never been given specific written or oral authorization to accept service on behalf of the appellee.
It was further stipulated, however, that on at least four prior occasions the sheriffs office had served writs of garnishment on appellee by delivering the documents to Atwood and that on each of those occasions the bank had filed responsive pleadings.
It was further stipulated that when service was attempted the judgment-debtor had monies deposited in the appellee bank totalling $72,666.91. On the same day the writ of garnishment was presented to the bank, the judgment-debtor filed a superse-deas bond pursuant to Rule 8 of the Arkansas Rules of Appellate Procedure and obtained an order superseding the judgment entered in the circuit court.
Although service of the writ was had upon Atwood, its delivery was known to the president and chief executive officer of appellee within a short period of time after the attempted service and a hold was placed upon the debtor’s bank accounts. Copies of the supersedeas documents were also delivered to appellee’s president shortly after they were filed. The following morning, appellee’s president issued a memorandum instructing the appel-lee’s employees to “release the hold on the two accounts in the name of the judgment-debtor,” stating as his reason that the order for supersedeas cancelled the writ of garnishment and allowed the accounts to proceed as if they had never been garnished. Pursuant to the memorandum, the hold on the judgment-debtor’s accounts was released and the accounts were thereafter completely depleted. No response was filed by the bank to the writ of garnishment. It was further stipulated that the judgment-debtor’s appeal from the judgment was dismissed in January of 1983 for failure to file a timely record and that the judgment-debtor and his surety on the supersedeas bond became bankrupt on February 22, 1983, and were subsequently discharged in bankruptcy. No payments on the appellee’s judgment were made through the bankruptcy court or otherwise. On these stipulated facts the trial court held that the writ had not been properly served upon the appellee; that the delivery of the writ to Atwood did not constitute service of process; and that appellant should take nothing from the appellee by virtue of the writ.
Appellant does not contend that Atwood was a proper person to receive service of the writ on the corporation under the provisions of ARCP Rule 4(d)(5) or any applicable statute referred to in that rule. He clearly was not. Appellant argues that as Mr. Atwood had at least apparent authority, the service should be sustained. The view we take of the case does not require us to address that issue.
Our court has declared that writs of garnishment must meet all the requirements applicable to summonses in civil cases, both as to the formalities of its issuance and the extent that it gives notice which is reasonably calculated to make the defendant aware of his duty to take action or risk entry of a default judgment. Terminal Truck Brokers v. Memphis Truck & Trailer, Inc., 279 Ark. 427, 652 S.W.2d 34 (1983); Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). Here it was stipulated that the writ of garnishment met those requirements and was in proper form duly issued by the clerk of the court rendering the judgment. The only argument advanced is that there was a defect in the service of the writ upon the appellee. It has long been a well-settled general rule that any objection to irregularities or defects in the service of process is waived unless made properly and diligently and that defective service of process may be sufficient to constitute legal notice of a suit and support a judgment therein so long as the service actually gives the party served notice of the proceedings. Irregularity in service of process may make a judgment voidable but not void. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). Defects in the service thereof are cured or waived by appearance of the defendant without raising an objection and he is precluded from thereafter taking advantage of the defect. Id.
Prior to the adoption of our present rules of civil procedure, objections to defects in service or process were required to be made by special appearance, and any subsequent appearance or pleading which did not preserve the special nature of the appearance was deemed an entry of appearance for all purposes. Our present ARCP Rule 12(b) requires that every defense in law and in fact to the claim for relief shall be asserted in a responsive pleading if one is required, except that certain listed defenses, including lack of jurisdiction over the person, may be made by motion. It further provides that no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. Commentary to this rule points out that the distinction between general and special appearance is abolished and that it is not now necessary to make a “special appearance” in order to challenge the jurisdiction of the person, process, or venue.
Although that distinction has now been relaxed or abolished, it does not mean that the question must not still be specifically raised in the trial court. ARCP Rule 12(h)(1) provides that the defenses of lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process are waived if they are neither made by motion under this rule nor included in the responsive pleading or amendment thereto.
The record submitted to us does not contain any of the pleadings. It contains only the stipulation of the parties, judgment of the trial court, and the notice of appeal. It was conceded by appellee in oral argument, however, that no motion questioning the service of process or jurisdiction of the person was ever filed in the trial court.
The stipulation of fact filed in this case contains the following statement: “Comes now the plaintiff, Searcy Steel Company, and the garnishee, Mercantile Bank of Jonesboro, Arkansas, who stipulate that the plaintiffs claim against the garnishee should be submitted to the court on the following facts:
We conclude that the appellee waived any defect or irregularity in the service of process both by its failure to file a motion to dismiss for lack of jurisdiction of the person under Rule 12(b) and (h) and by submitting the case to the court on the merits without having filed such a motion. By the failure to move to dismiss, the defects were waived and, by submitting the case to the court on the merits, the appellee submitted itself to the jurisdiction of the court for all purposes.
The appellee contends that, even if service of the writ is deemed waived, the trial court’s declaration that appellant take nothing under its writ is correct for another reason. Appellee argues that the supersedeas issued by the clerk of the court had the effect of releasing and discharging the lien of the writ.
The effect of a supersedeas on a judgment was discussed by our court as early as Fowler v. Scott, 11 Ark. 675 (1850), which declared that the function of a supersedeas is to stay the execution of the judgment pending the period it is superseded, but the validity of the judgment is not effected by the stay. It is merely a legal prohibition from execution on the judgment until that prohibition has been removed by operation of law or a judgment of the supreme court. In Miller v. Nuckolls, 16 Ark. 485, 89 S.W. 88 (1905), the court reaffirmed its declaration in Fowler and restated that the supersedeas does not have the effect of vacating the judgment but only stays proceedings to enforce it.
Neither party has cited us a case from this jurisdiction in which a declaration has been made of the effect of a supersedeas on a writ of execution or garnishment which was served before the supersedeas was issued. Appellee cites cases from several sister states which have held that the supersedeas serves to discharge the lien of such a writ previously served. From our examination of the cases, this rule is a minority view and in some cases was mandated by statutory enactments modifying common-law rules. From our examination of the cases cited in an annotation at 90 A.L.R.2d 483 (1963), we conclude that the better-reasoned rule to apply is that stated in 4A C.J.S. Appeal & Error § 667 (1957), as follows:
At common law a supersedeas does not destroy the lien effected by the previous levy of an execution or effect a stay of further proceedings thereon; but, under the statutes providing for the allowance and perfecting of a superse-deas on the execution of a prescribed bond, the common-law rule and the theory that the levy and sale under an execution are indivisible and that the execution must be regarded as fully executed from the time of the levy are changed, and the general rule now is that a supersedeas becomes effective notwithstanding a levy, and stays further proceedings thereunder, or the court, either trial or appellate, may, in its discretion, make an order recalling or staying proceedings under the execution until the determination of the appeal or writ of error.
The view we take is that the issuance of a supersedeas does not have the effect of vacating the judgment but only stays proceedings thereunder to maintain the status quo until the legal prohibition contained in the supersedeas has been removed. If no writ for the execution of the judgment has been issued at the time the supersedeas is filed, no writ may be issued. If, at the time the supersedeas becomes effective, the lien of a writ has already attached, it has only the effect of prohibiting further proceedings to enforce the lien.
When the judgment-debtor’s appeal was dismissed, the prohibition of the supersedeas against further proceedings under the writ of garnishment was removed. Ark. Stat. Ann. §31-507 (Repl. 1962) provides that where a banking institution fails to answer a writ of garnishment before the return day, judgment shall be entered for an amount not exceeding the full amount of the judgment and also not exceeding the amount in which the garnishee was indebted to the judgment-debtor at the time the writ was served and thereafter up to the return date. As it was stipulated that at the time the writ was served appellee was indebted to the judgment-debtor in the amount of $72,266.91, judgment should have been entered for that amount. The order appealed from is reversed and the cause remanded with directions to enter a judgment not inconsistent with this opinion.
Corbin and Mayfield, JJ., agree. | [
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Tom Glaze, Judge.
Appellant, the owner of appellee-employer, appeals from a Workers’ Compensation Commission decision which reversed the administrative law judge’s award of benefits on the basis that appellant had failed to file a written notice that he intended to be included in the definition of an employee for the purposes of coverage under the Workers’ Compensation Act. For reversal, appellant contends that he was not statutorily required to file such notice. We affirm.
At the hearing, the parties stipulated that appellee-employer is a sole proprietorship. Appellant was injured on January 23, 1985, when a tree limb fell, striking him on the head. At the time of the injury, a Workers’ Compensation policy issued by CIGNA to appellee-employer was in effect. At issue before us is whether appellant, as owner, was covered under the policy.
Appellee contends that appellant was not covered because he failed to comply with Ark. Stat. Ann. § 81-1302(b) (Supp. 1985), which provides, in pertinent part:
The term “employee” shall also include a sole proprietor or a partner who devotes full time to the proprietorship or partnership and who elects to be included in the definition of “employee” by filing written notice thereof with the Division of Worker’s [sic] Compensation.
The notice required under § 81 -1302(b) is filed with the Commission on a form known as an A-18. Appellant never filed an A-18, either at the time of or subsequent to the issuance of the policy. However, he contends that he was not required to file the form because of the following language contained in Ark. Stat. Ann. § 81-1320(a) (Supp. 1985):
Provided, however that any officer of a corporation or self-employed employer who is not a subcontractor and who owns and operates his own business may by agreement or contract exclude himself from coverage or waive his right to coverage or compensation under the Act. [Emphasis added.]
Therefore, under § 81-1302(b), a “sole proprietor” must file written notice with the Commission to be included in the definition of an “employee,” while under § 81-1320(a), a “self-employed employer” may agree or contract to exclude himself from coverage. Both parties’ arguments in this case are, to a considerable extent, premised on the notion that there is a conflict in the statutes. However, in construing seemingly contradictory statutes, it is our duty, so far as practical, to reconcile different provisions so as to make them consistent, harmonious, and sensible. Southern Wooden Box Co. v. Smith, 5 Ark. App. 14, 631 S.W.2d 620 (1982). Here we simply fail to find a conflict, and we make this assessment on a fundamental basis, viz., the terms “sole proprietor” and “self-employed employer,” as used in the Workers’ Compensation Act, are neither synonymous nor interchangeable.
Our research reveals only two cases which have applied §81-1320(a) since it was added by the General Assembly in 1971 Ark. Acts 162. They are Prudential Insurance Co. of America v. Jones, 1 Ark. App. 51, 613 S.W.2d 114 (1981), and Queen v. Royal Service Co., 6 Ark. App. 149, 645 S.W.2d 343 (1982). In both cases, the employers were corporations in which the appellants and their wives owned all of the stock. In no case has the pertinent language of § 81-1320(a) been applied to anything other than a corporation.
We conclude that § 81-1320(a) clearly applies only to corporations, and therefore, “self-employed employers” must be corporate officers. To interpret it otherwise would result in an ambiguity. The supreme court has held that it is permissible to read the word “or” as “and” when the context in which it is used requires that it be done to effectuate a manifest intention or when not to do so would render the meaning of the clause ambiguous or result in an absurdity. Pickens-Bond Construction Co. v. North Little Rock Electric Co., 249 Ark. 389,459 S.W.2d 549 (1970). Here, the obvious intention is that § 81-1320(a) apply to persons who are both officers of corporations and self-employed employers.
In the instant case, it was stipulated that appelleeemployer is a sole proprietorship. We therefore hold that § 81-1302(b) is applicable, and that appellant was required to file an A-18 to be included within the definition of an “employee” under the Act. Since he did not do so, he is not covered, and we must affirm the Commission.
Affirmed.
Cracraft, C.J., and Cooper, J., agree.
Rehearing Denied November 26, 1986
719 S.W.2d 284
Per Curiam.
Rehearing is denied.
Cracraft, C.J., concurs.
Cloninger, Corbin, and Mayfield, JJ., would grant rehearing. | [
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Tom Glaze, Judge.
The issue in this divorce case involves the settlement proceeds resulting from the appellee’s injury when he was employed by Kansas City Southern Railway Company. Appellant and appellee were married at the time of appellee’s injury and settled their claim with appellee’s employer for $250,000.00. At the time of the divorce, $ 110,000.00 of the initial lump-sum payment was in a certificate of deposit in the names of “Mr. or Mrs. Joe McDonald, Sr.,” and two additional separate installments of $50,000.00 each were to be subsequently paid.
The chancellor found that the certificate of deposit and the two future installments were marital property within the meaning of Ark. Stat. Ann. Section 34-1214 (Supp. 1985), but he divided these proceeds unequally. He awarded appellant $25,000.00 of the certificate of deposit, and appellee was given the balance of the certificate of deposit as well as the two installments. In making the division, the chancellor stated that he considered all the factors set out in Section 34-1214(A)(l) and specifically looked at the severity of appellee’s injury and the unlikely prospects for his future employability compared with the health and ability of appellant to work.
We disagree with the chancellor with respect to the question of the division of the $110,000.00 certificate of deposit. Ark. Stat. Ann. Section 67-552(C) (Supp. 1985) provides that, if a certificate of deposit is in the names of persons who denominate themselves to the banking institution as husband and wife, then such certificate of deposit and all additions thereto shall be the property of such persons as tenants by the entirety. As previously noted, that was the situation here since the parties’ certificate of deposit was titled in the names of “Mr. or Mrs. Joe McDonald, Sr.” Because the parties’ certificate of deposit was held as tenants by the entirety, it was required to be divided pursuant to Ark. Stat. Ann. Section 34-1215 (Supp. 1985). That statute provides that, when any chancery court renders a final decree of divorce, any estate by the entirety in real or personal property held by the parties to the divorce shall be automatically dissolved, and parties shall be treated as tenants in common.
The supreme court, in Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981) set out the rule for the division of property held as tenants by the entirety. The court stated:
We have traditionally recognized two categories of property in divorce cases. One category has been divided pursuant to the general property division statute which has been codified as Ark. Stat. Ann. Section 34-1214 in the 1947 publication, the 1962 replacement and the various supplements prior to 1979. The other category, property held in tenancies by the entireties, has never been divided pursuant to the general property division statute.
By Act 340 of 1947, Ark. Stat. Ann. Section 34-1215 (Repl. 1962), the General Assembly gave courts the authority to convert marital survivorship estates to a tenancy in common. . . .
This statute is the only authority for dividing estates by the entirety, and it provides for the equal division of property without regard to gender or fault. . . .
We hold that Act 705 of 1979, Section 34-1214 (Supp. 1979), is not applicable to property owned as tenants by the entirety.
Id. at 530-34. See also Bramlett v. Bramlett, 5 Ark. App. 217, 636 S.W.2d 294 (1982); Askins v. Askins, 5 Ark. App. 64, 632 S.W.2d 249 (1982).
On de novo review in chancery cases we do not reverse unless we find the chancellor’s findings of fact and conclusions of law to be erroneous, and when we do find error and the record is fully developed where we can plainly see where the equities lie, we do not remand for further proceedings but enter here the decree which ought to have been entered by the chancellor. Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984); see also Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). In accordance with the clear directives in Warren, we hold that the $110,000.00 certificate of deposit should have been divided equally and modify the decree to direct the equal division of that certificate between the parties.
Appellant contends that she also is entitled to half of the two installments of $50,000.00 remaining to be paid on the parties’ claim for appellee’s injury. We hold that Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986) is controlling here. In Liles, the appellant argued that the chancellor erred in classifying appellant’s personal injury settlement as marital property. As in the present case, a portion of the award in Liles had been paid to appellant at the time of the divorce, and the remainder was to be received in future installments. The Arkansas Supreme Court, in upholding the chancellor’s decision that such funds constitute marital property, stated:
The appellant contends we should be guided by our decision in Lowery v. Lowery, 260 Ark. 128, 538 S.W.2d 36 (1976), in which we held that a Jones Act claim was not “personal property” and thus was not subject to division pursuant to the predecessor of the current Ark. Stat. Ann. Section 34-1214 (Supp. 1985). In Goode v. Goode, 286 Ark. 463,692 S.W.2d 757 (1985), we noted that Lowery v. Lowery, supra, no longer governs with respect to the question whether a personal injury judgment could be marital property, as it was decided long before the landmark case of Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), where we emphasized that all property acquired by either spouse subsequent to marriage becomes marital property unless it is specifically excepted by the statute. Moreover, in Lowery v. Lowery, supra, we were considering whether a wholly unliquidated Jones Act claim was subject to the marital rights of the spouse of the claimant upon divorce. Here, the claim is liquidated, but part of the judgment is to be received in the future pursuant to the structured settlement. The amount to be received from Aetna is more “liquidated” than was the workers’ compensation claim we held to have been marital property in Goode v. Goode, supra.
Nor does it concern us that some of the money comprising the judgment may have been to compensate Tommy for the harm to his body, as opposed to lost wages and medical expenses. We pointed out in Goode v. Goode, supra, that the chancellor may take into consideration the health of the parties in dividing marital property in accordance with the statute.
Id. at 168-69.
In view of Liles, the chancellor here clearly was correct in finding the two future installments marital property, which leads us to appellant’s final argument: whether the chancellor properly considered the factors under Section 34-1214(A)(l) in awarding those installments unequally, i.e., entirely to appellee. We hold that he did.'
In Jones v. Jones, 17 Ark. App. 144, 705 S.W.2d 447 (1986), we upheld when the chancellor, in dividing marital property unequally, stated he was relying on the reasons cited in Section 34-1214(A)(l), and stated the main reasons were that it was appellee who contributed to the acquisition of her own pension plan and individual retirement account, and appellant was able to support himself. Here, as pointed out earlier, the chancellor recited the factors set forth in Section 34-1214(A)(1), and particularly mentioned the severity of appellee’s injury and the likelihood he would not work again while appellant maintained her ability to work. We believe the chancellor’s analysis was sufficient, and his refusal to award appellant any portion of the two installments is not against the preponderance of the evidence. Warren v. Warren, supra.
Affirmed as modified.
Cracraft, C.J., and Cloninger, J., agree. | [
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Melvin Mayfield, Judge.
Appellant, Dixie Furniture Company, has appealed a decision of the Phillips County Chancery Court granting partial summary judgment to appellee, holding that appellee had acquired a prescriptive easement over lands of the appellant and that the appellant and its predecessors in title knew or should have known the lands were being used adversely.
Summary judgment is an extreme remedy and should be granted only when it is clear that there is no genuine question of fact in issue. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984). In the present case, oral testimony was taken in addition to the affidavits and pleadings; however, ARCP Rule 56 does not permit supplementation of the pleadings, depositions, answers to interrogatories, admissions and affidavits with oral testimony in considering whether summary judgment is appropriate. Sikes v. Segers, 263 Ark. 164, 563 S.W.2d 441 (1978). Therefore, in keeping with the procedure followed in Montgomery Ward & Co. v. Credit, 274 Ark. 66, 621 S.W.2d 855 (1981), we do not consider the oral testimony included in the record in this case.
An affidavit filed in support of appellee’s motion for summary judgment stated that appellee had constructed a transmission line across appellant’s land in 1945 and that it had been maintained and operated by appellee since that time. The affidavit also stated that a support structure, presently in place and use, was installed in 1967, is over 90 feet tall, and is fairly obvious from the subject property. These allegations were not denied by the affidavit filed by appellant and it had the duty to meet them with sworn allegations of its own that showed there was a genuine issue of fact for trial. Chick v. Rebsamen Insurance-Springdale, 8 Ark. App. 157, 649 S.W.2d 196 (1983).
The chancellor’s memorandum opinion relied upon Hannah v. Daniel, 221 Ark. 105, 252 S.W.2d 548 (1952), where the court stated:
We announced the rule in this language in Waller v. Dansby, 145 Ark. 306,224 S.W. 615: “The general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it.”
In the case of French v. Richardson, 246 Ark. 497, 438 S.W.2d 714 (1969), the appellants had purchased a twenty-five acre tract of land which was burdened with a servitude represented by an unrecorded easement allowing appellees’ radio station to maintain a tower on and transmission lines across the Frenchs’ property. The Arkansas Supreme Court held:
The law governing the respective rights of the parties in that situation is well settled. The prevailing rule is found in Am. Jur., Easements, § 156 (1957):
It has often been said that in order to affect the purchaser of a servient estate the easement if unrecorded, must be one that is apparent as well as necessary and continuous, or the marks of the servitude must be open and visible. Accordingly, it is held that if the servitude cannot be discovered by an inspection of the premises, the purchaser is not charged with notice of its existence, except in so far as he may be charged with constructive notice under the recording laws. On the other hand, the proposition that a purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises is sound beyond question.
246 Ark. at 499.
More recently, the Court of Appeals has reiterated these rules in Childress v. Richardson, 12 Ark. App. 62, 670 S.W.2d 475 (1984).
In Sebastian Lake Development, Inc. v. United Telephone Co., 240 Ark. 76,398 S.W.2d 208 (1966), the telephone company sought an injunction to prevent the construction of a dam which would result in the flooding of existing telephone poles and lines on appellant’s property, claiming it held an easement by prescription. The court agreed that the evidence showed the land had been used adversely under claim of right for more than seven years and, under Ark. Stat. Ann. § 35-101 (Repl. 1962), compensation for the property taken was barred by the statute of limitations.
Under the law set out above, we believe the affidavits before the trial judge in the present case demonstrated that there was no genuine issue of fact to be tried concerning the existence of the appellee’s prescriptive easement.
Appellant cites LeCroy v. Sigman, 209 Ark. 469, 191 S.W.2d 461 (1945), and Bridwell v. Arkansas Power & Light Co., 191 Ark. 227, 85 S.W.2d 712 (1935), in support of its argument that, since its land was unenclosed, there is a presumption that the easement across the property was permissive. However, we cannot agree. The cases cited by appellant deal with passage over land and not with structures on land. Appellant’s cases rely upon Boullioun v. Constantine, 186 Ark. 625, 54 S.W.2d 986 (1932), where the court cited 9 R.C.L., Easements, § 39, and said:
[T]he rule that the use of uninclosed lands for passage is to be presumed permissive and not adverse is stated to be that supported by the weight of authority and based on the fact that it was not the custom in this country, or the habit of the people, to object to persons enjoying such privilege until there is a desire to inclose.
186 Ark. at 629.
Neither do we agree with appellant’s argument that even if it had been aware of the existence of appellee’s power lines and tower, it would have assumed them to be on adjacent property because there was no recorded easement, and because it was unaware of where its actual boundary lines were located. If, as stated in Hamah v. Daniels, and French v. Richardson, supra, a purchaser is charged with notice of an easement or encroachment where its existence is apparent upon an ordinary inspection of the property, it follows that a property owner is charged with knowledge of where his boundaries are located and whether the encumbrance is on his property or adjacent property. See also Smotherman v. Blackwell, 222 Ark. 526, 261 S.W.2d 782 (1953), in which it was held that the purchasers took subject to an equitable right of reformation by their neighbor who was in possession of part of the property purchased. There the court stated:
Had the Blackwells taken the precaution of having a survey made before they bought Lot 1 they would have learned of Smotherman’s hostile possession, and they are charged with knowledge of such facts as would have been disclosed by a diligent investigation of his claim. Such an investigation would have led to the discovery of the past events that now entitle him to the relief prayed.
We believe the chancellor was correct in granting the summary judgment in the instant case.
Affirmed.
Cloninger and Corbin, JJ., agree.
Appellant’s request for injunction to prevent appellee from using the property for any purpose was denied. This was an appealable order, Rules of Appellate Procedure, Rule 2(a)(6), even though the court’s order stated that “a factual issue still remains as to the exact width of the defendant’s prescription easement.” | [
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James R. Cooper, Judge.
The appellees purchased from the appellant a standard homeowner’s policy to cover their home and three outbuildings on thirteen acres in Boone County, Arkansas. The policy language which defined coverage stated that the policy did not cover “structures used to any extent for business purposes” and defined “business” as “any full time or part time trade, profession or occupation.” The appellees’ barn was damaged by a windstorm, and they filed a claim. The appellant denied coverage because, subsequent to purchasing the policy, the appellees purchased eleven head of cattle which they kept on the premises, and they allowed their son to keep nine head of cattle on the premises. Shelter contended that the appellees were in the cattle business and that there was no coverage for a loss to structures used for business purposes. The trial court, sitting as the finder of fact, found that the limited number of cattle owned by the appellees did not constitute a “business” under the terms of the policy; that there was no evidence that the barn was used in business and awarded a judgment to the appellee for $1,743.00, twelve percent statutory penalty plus their costs and attorney’s fees of $500.00. From this judgment, the appellant appeals, contending that the trial court’s findings that the business exclusion did not apply is clearly erroneous. We disagree and affirm by memorandum opinion pursuant to section (a) of our per curiam In re Memorandum Opinions, 16 Ark. App. 301, 700 S.W.2d 63 (1985).
The law in Arkansas is that a loss suffered by an insured is a covered one unless it is excluded by an exception. Allstate Insurance Co. v. Martens, 5 Ark. App. 157, 633 S.W.2d 715 (1982). Courts are required to strictly interpret exclusions to insurance coverage and to resolve all reasonable doubts in favor of an insured. Geurin Contractors, Inc. v. Bituminous Casualty Corp., 5 Ark. App. 229, 636 S.W.2d 638 (1982). Whether an activity is a business pursuit is almost always a factual question presented for the determination by a court. U. S. Fire Insurance Co. v. Reynolds, 11 Ark. App. 141, 667 S.W.2d 664 (1984).
Here, the appellant contends that, because the appellee Carl Hudson gave the response “admitted” to the appellant’s request “[p] lease admit that the barn described in the plaintiff’s complaint was used to help raise cattle,” he acknowledged that the barn was used for business purposes. The appellee Hudson, however, did not admit he raised the cattle for business purposes but testified that he purchased eleven cows for grass control purposes and that, when the grass began getting thin, he sold part of them. He also stated that he did not receive rent from his son for allowing him to keep his cows on the property, and, although he could not say that he had not fed the cattle hay from the barn, basically the barn was not used in raising the cattle. The only evidence the appellant introduced to dispute Hudson’s testimony was the appellees’ 1984 tax return, which indicated that the appellees made a $325.00 profit on their farming operation and took a $6,995.00 farming deduction.
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 opportunity of the trial court to judge the credibility of the witnesses and the weight to be given to their testimony. Jones v. Innkeepers, Inc., 12 Ark. App. 364, 676 S.W.2d 761 (1984); ARCP Rule 52(a).
In the case at bar, the trial court made two primary findings of fact: first, that the appellee was not in “business,” and second, that the barn was not used in a “business.” There is clear and uncontradicted testimony that the barn was not used in any business. No witness testified that the barn was used in any business. The only substantive evidence that the appellees were involved in the cattle business was provided by the appellees’ 1984 income tax return. The conflict in the evidence was for the finder of fact to resolve.
We do not find that the trial court’s decision was clearly erroneous or against the preponderance of the evidence.
Affirmed.
Glaze, J., dissents. | [
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Lawson Cloninger, Judge.
This appeal arises from the Workers’ Compensation Commission’s finding that appellant’s second gastric bypass surgery was not compensable. Appellant argues that the Commission’s decision was barred by res judicata and, in the alternative, that the Commission’s findings were not supported by substantial evidence. Although we disagree with appellant’s first argument we do find that the Commission’s findings are not supported by substantial evidence and reverse and remand.
Appellant, Nonie Perry, sustained a compensable injury while employed as a licensed practical nurse with appellee, Leisure Lodges. On June 12, 1981, appellant was assisting a patient to the dining room when the patient became violent and pushed appellant over a wheelchair, causing appellant to injure her back. At the time appellant was five feet four inches tall and weighed about 294 pounds. Because of her obesity, appellant’s back injury was difficult to diagnose and treat, and her physician recommended that she undergo surgery which would greatly decrease the size of her stomach. The surgery was performed in January of 1982, and in October of 1982 the surgery was found to be necessary and reasonable and appellant was awarded benefits.
Appellant lost approximately 99 pounds as a result of the surgery. In July of 1984, appellant began gaining back some of the lost weight and having problems with her stomach. An x-ray revealed that some of the staples used in the gastric bypass surgery had become loose. Her doctor, Dr. Harold Chakales, felt that appellant should have surgery again to correct the problem with the gastric bypass. Appellant returned to the doctor who had done the first surgery, Dr. Moisés Menendez, but he felt that there were too many complications to risk surgery. Dr. Chakales then sent appellant to Dr. William F. Hayden, who recommended that the gastric bypass be revised and that appellant have a vagotomy and pyloroplasty, which would help prevent ulcers. Appellant had both of these procedures done plus Dr. Hayden corrected an incisional hernia.
In its opinion, the Commission found that appellant’s volitional overeating caused the disruption of the staples and was an independent and intervening cause. The Commission found that appellant’s second surgery was not compensable and that her first healing period had ended on July 12,1982. The Commission did award appellant a four week period of temporary total disability covering the period of time she was hospitalized for epidural injections.
Appellant’s first argument, that the Commission’s finding is barred by res judicata, is without merit. It is appellant’s contention that, since the first gastric bypass surgery was found to be compensable, then the law of the case requires a finding that the second surgery is also compensable.
Generally speaking, res judicata applies where there has been a final adjudication on the merits of an issue by a court of competent jurisdiction on all matters litigated and those matters necessarily within the issue which might have been litigated. Gwin v. R.D. Hall Tank Co., 10 Ark. App. 12, 660 S.W.2d 947 (1983). Even though the Workers’ Compensation Commission is not a court, its awards are in the nature of judgments, and the doctrine of res judicata applies to its decisions. Gwin, supra.
Since it would have been impossible at the first hearing on compensability in October of 1982 to determine that appellant would need a second bypass, this is not an issue that could have been litigated at that time. Even though the surgical procedures are similar and the purpose was appellant’s weight reduction, the issues were entirely different. The first time the issue was whether the procedure was reasonable and necessary medical treatment in light of appellant’s injury. At the hearing which is now before us on appeal the issue was whether the second procedure was a natural and incidental consequence of the first procedure.
Appellant’s next argument concerns whether the Commission’s finding that appellant’s volitional overeating caused the failure of the first surgery is supported by substantial evidence. We agree with appellant’s contention that it is not.
On appeal, it is the duty of the appellate court to review the evidence in the light most favorable to the Commission’s decision and uphold that decision if supported by substantial evidence. Black v. Riverside Furniture Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982). Before the appellate court may reversea decision of the Commission, the court must be convinced that fairminded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Black, supra.
The Commission based its decision, that appellant’s overeating caused the rupture in the staple line, on the testimony of Dr. Menendez and Dr. Hayden. Both of the doctors testified that the most common reason that the staples fail is overeating by the patient. However, both of these doctors were testifying in generalities. Neither doctor specifically stated that the cause of appellant’s ruptured staples was overeating. In fact, Dr. Hayden stated that he did not know what caused appellant’s staples to loosen. He further stated that the staples can come out from vomiting or from a fall. Appellant testified that both of these things had happened to her several times. The only medical evidence in the record pertaining to appellant’s eating habits is from Dr. Hayden, who stated that appellant told him she didn’t eat very much.
These generalities that the Commission relied on are not sufficient to support its finding that appellant’s overeating was an independent, intervening cause. The Commission has taken the statements the doctors gave about common causes of staple disruption and speculated that this is what caused appellant’s staples to loosen. Based on this evidence we do not think that fairminded persons would reach the Commission’s conclusion.
Appellant next argues that the Commission’s finding that the second surgery was not made necessary by complications of the first surgery is not supported by substantial evidence and again we agree.
The Commission apparently based this finding on the fact that Dr. Menendez refused to perform the procedure the second time and on Dr. Hayden’s testimony that the first procedure was technically correct.
Again, the Commission seems to ignore other evidence that the second surgery was necessary because of complications from the first. When Dr. Hayden performed the surgery a second time, he not only redid the gastric bypass, but also performed a procedure designed to control ulcers and corrected an incisional hernia. Dr. Hayden stated unequivocally that he would have performed surgery to correct the hernia even if the other procedures were not involved. He continued, stating that in obese people, the tissue becomes weakened and hernias are more likely to occur along the lines of surgical incisions, and that it is the weakened tissue pulling apart, not overeating, that causes these hernias. Even though Dr. Menendez testified that he would not have performed surgery to correct appellant’s hernia, in an earlier deposition he stated that such hernias should always be repaired, and in fact, he had performed surgery on appellant to correct other hernias.
Dr. Hayden also explained that he performed the procedure to prevent ulcers because of the staple line disruption. He stated that when the staples became loose, the increased acid in the closed off area was allowed to free flow from that part of the stomach to the other and could erode the mucosa, causing an ulcer. Although appellees attempted to show that the ulcer condition existed before the first surgery, the report of an EGD performed by Dr. Jones for Dr. Menendez did not disclose the existence of any ulcerated areas.
Dr. Chakales, the physician treating appellant’s back, felt that the control of appellant’s weight was imperative to her back condition. Appellant conceded that the weight loss she attained had not cured her back, but that it did lessen the pain and made it possible for her to function without narcotic pain medication. Appellant’s obesity was a preexisting infirmity and the Commission’s finding that appellant’s overeating caused her subsequent problems is not supported by substantial evidence. See Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (1979).
We remand this case to the Commission with directions to enter an order not inconsistent with this opinion and to accordingly set the healing period and determine the issue of disability.
Reversed and remanded.
Wright, Special Judge, and Cooper, J., agree. | [
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George K. Cracraft, Chief Judge.
David Duffner appeals from an order of the Sebastian County Chancery Court enforcing a covenant not to compete and enjoining him from the practice of medicine within a radius of thirty miles from the offices of Joe Paul Alberty and John Wideman for a period of twelve months from the date of entry of the order. The appellant contends that the covenant is void and unenforceable because it violates the public policy of this state which prohibits unreasonable restraints of trade. We agree.
Covenants not to compete are not looked upon with favor by the law. In order for such a covenant to be enforceable, three requirements must be met: (1) the covenantee must have a valid interest to protect; (2) the geographical restriction must not be overly broad; and (3) a reasonable time limit must be imposed. Rebsamen Ins. v. Milton, 269 Ark. 737, 600 S.W.2d 441 (Ark. App. 1980). It is not argued that the geographic restriction was overbroad or that the time limitation was unreasonable. Appellant contends only that there was not a sufficient interference with appellees’ business interests to warrant enforcement of the covenant. It is clear that such covenants will not be enforced unless a covenantee had a legitimate interest to be protected by such an agreement and that the law will not enforce a contract merely to prohibit ordinary competition. Import Motors, Inc. v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (1980). The test of reasonableness of contracts in restraint of trade is that the restraint imposed upon one party must not be greater than is reasonably necessary for the protection of the other, and not so great as to injure a public interest.
Contracts in partial restraint of trade, where ancillary to a sale of a business or profession with its goodwill, are valid to the extent reasonably necessary to the purchaser’s protection, and are looked upon with greater favor than such an agreement ancillary to an employer-employee or professional association relationship. Madison Bank & Trust v. First National Bank of Huntsville, 276 Ark. 405, 635 S.W.2d 268 (1982); Marshall v. Irby, 203 Ark. 795, 158 S.W.2d 693 (1942); Easley v. Sky, Inc., 15 Ark. App. 64, 689 S.W.2d 356 (1985). Where the covenant grows out of an employment or other associational relationship, the courts have found an interest sufficient to warrant enforcement of the covenant only in those cases where the covenantee provided special training, or made available trade secrets, confi dential business information or customer lists, and then only if it is found that the associate was able to use information so obtained to gain an unfair competitive advantage. See Orkin Exterminating Co., Inc. v. Weaver, 257 Ark. 926, 521 S.W.2d 69 (1975); Rector-Phillips-Morse, Inc. v. Vroman, 253 Ark. 750, 489 S.W.2d 1 (1973); All-State Supply, Inc. v. Fisher, 252 Ark. 963, 483 S.W.2d 210 (1972); Girard v. Rebsamen Ins. Co., 14 Ark. App. 154, 685 S.W.2d 526 (1985). The validity of these covenants depends upon the facts and circumstances of each particular case. Evans Laboratories, Inc. v. Melder, 262 Ark. 868, 562 S.W.2d 62 (1978).
Here, Dr. Joe Paul Alberty and Dr. John Wideman were orthopedic surgeons who had been engaged in the practice of their profession in Fort Smith, Arkansas, as partners for many years. Appellant completed his residency training in orthopedic surgery in June of 1984, at a clinic in Temple, Texas, and afterwards determined to locate in Fort Smith and associate himself with the appellees. The terms and conditions of appellant’s association with the appellees’ practice was reduced to a letter agreement. It is not questioned that all of those involved were fully aware of the document’s provisions. Under the terms of the agreement the appellees agreed to pay all general expenses and certain specific expenses listed in the agreement were to be paid by the physician who incurred them. Each physician was assigned a private office and paid rent to the Alberty-Wideman partnership. Certain portions of the office and the medical equipment owned by the partnership were to be used in common and the practice would be organized as an association of individual professional associations, but appellant would initially practice as a sole proprietorship. Call schedules would be shared equally. At the end of one year the appellant would arrange financing to buy his share of the equity in the furniture and equipment and would have an option to purchase an interest in the condominium offices. The agreement contained a covenant that should the appellant desire to leave the group he would not practice within a radius of thirty miles of the offices of the appellees for a period of one year from the date of termination. It was agreed that the appellant would be furnished rent and overhead at no expense for the first three months, at one-third the normal rate during the fourth month, and two-thirds that rate in the fifth month. Appellant would begin paying his equal share beginning with the sixth month. There was no agreement to share income or new patients with the appellant and individual billings were made and collected for services rendered by each physician. Appellant practiced with appellees under this arrangement until late in the spring of 1985, when he joined another orthopedic clinic which conducted its practice in the same building in which the appellees’ offices were located.
During the twelve-month period following the commencement of the association, the appellant treated 1207 patients and it was undisputed that during the first nine months of that association his personal receipts were in excess of $300,000.00. After leaving the association with appellees, the appellant requested of them the files on twenty-eight patients, which he testified had been treated by him while the association continued and were receiving follow-up medical attention only. The chancellor specifically found that during the continuance of the agreement the appellant “had access to the confidential patient files of the plaintiffs, had use of plaintiffs’ office furniture and equipment, and utilized for his own benefit the good professional reputation and goodwill of the plaintiffs.” The chancellor found the restrictive covenant to be reasonable and that the appellees had a valid and enforceable right to protect their substantial investment in their medical practice, and to protect their established medical clientele. An injunction was entered restraining the appellant from engaging in the practice of medicine within a radius of thirty miles from appellees’ offices for a period of twelve months commencing on the date of the decree.
Although contracts between individuals ought not to be entered into lightly, all other considerations must give way where matters of public policy are involved. From our review of all the facts and circumstances, we are of the opinion that the contract provision prohibiting appellant from practicing medicine within thirty miles of the City of Fort Smith constitutes an undue interference with the interests of the public right of availability of the orthopedic surgeon it prefers to use and that the covenant’s enforcement would result in an unreasonable restraint of trade.
Here the contract did not relate to the sale of a business and its goodwill. The appellees’ goodwill remained with them. The benefits which the appellant obtained from the reputation and goodwill of his former associates would be no greater than that of an employee in any other established business. It is only in those instances where goodwill has, for valid consideration, been transferred that the purchaser has a legitimate pecuniary interest in protecting against its being drained by competition from the seller.
Nor were any trade secrets, formulas, methods, or devices which gave appellant an advantage over the appellees involved here. At the time he joined the association he had received his training and skills elsewhere and brought them with him. There is nothing in the record to indicate that he learned any trade secret or surgical procedures from the appellees which were not readily available to other orthopedic surgeons. To the contrary, the record reflects that while in the association he performed some orthopedic surgical procedures which the appellees did not perform.
Although the chancellor found that the appellant had access to appellees’ confidential patient files, there was no evidence that he attempted to memorize them or use information from those files to entice any of their former patients to become patients of his new association. Although there was evidence that he obtained the files on twenty-eight persons from the appellees, it was explained that these were not new patients but those who were receiving follow-up medical attention after having undergone surgery by the appellant during his association with the appellees. Other than those twenty-eight persons receiving post-operative care, he testified that he had not seen more than two of appellees’ former patients.
We cannot conclude from the evidence that appellant maintained a personal relationship or acquaintance with appellees’ patients or that their “stock of patients” was appropriated by the appellant when he left their offices. There was also evidence that appellees’ income increased after appellant left the association. We conclude that the enforcement of this covenant would do no more than prohibit ordinary competition.
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James R. Cooper, Judge.
This is an appeal from a decision of the Faulkner County Chancery Court, changing custody of the parties’ son Russell (Rusty) Carter, age three at the time of trial, from appellant to appellee. The appellant argues that the chancellor erred because there was insufficient evidence of a change in circumstances and no evidence as to the best interest of the child. The appellant also contends that the court erred in changing custody instead of making a finding of contempt if he found that the appellant had unreasonably violated the visitation order. We agree with the appellant’s first point and, therefore, reverse the chancellor’s decision.
The parties were divorced March 20, 1985, and a consent decree was entered whereby custody of the parties’ son was granted to the appellant, reasonable visitation rights were granted to the appellee, and the appellee was ordered to pay the appellant $50.50 a week as child support. On July 1, 1985, the appellee filed a petition for contempt and to establish specific visitation, alleging that the appellant had denied him visitation. The court entered an order on July 24,1985, making no finding as to contempt and awarding the appellee visitation every other weekend and certain holidays, including Christmas day and the week thereafter. On November 26, 1985, the appellant filed a petition for emergency relief, stating that the child was afraid to go to the father’s home, alleging physical injuries and symptoms, and requesting the restriction of overnight visitation until the problem was solved. On December 2, 1985, the appellant filed a motion requesting the appellee be held in contempt for failure to make weekly child support payments pursuant to the earlier order. The appellee alleged in his response to the petition for emergency relief that the appellant had attempted to totally deprive him of any visitation with the child and he claimed that any fear the child felt was instilled by the appellant, as the child did not exhibit any fear to him. The appellee requested that, due to financial difficulty on his part in making the weekly payments, they be lowered to $35.00 a week, in accordance with the family support chart, and that the appellant’s petition be dismissed. The appellee requested in the alternative that custody be changed to him because of the appellant’s persistent attempts to prevent him from seeing his son and because of her attempts to instill fear and hatred in the minor child toward him. In his response to the appellant’s petition for contempt, the appellee requested its dismissal, contending it was merely a form of ongoing harassment, and for its consolidation with the petition for emergency relief. This was apparently done.
The chancellor heard evidence on December 30th on the petition and made the following oral findings at the end of the case:
All right. In this case, as in all cases, the Court is going to do what it feels is in the best interest of the minor child. The child is obviously being disturbed and upset everytime it comes to a situation of visitation. The proof brought by the plaintiff, Dixie Carter, in here is insufficient to restrict any form of visitation.
. . . fWJhich leaves the Court with the situation that the plaintiff, Dixie Carter, has not proven her case in what is in the best interest of the child.
It’s the sort of thing the Court hopes the parties will . . . resolve between themselves. We know that Mrs. Carter selected Mr. Carter to be the father of this child and vice versa. They must have felt that they were good parents. Yet, after the divorce, the situation has changed. Simply because they’re divorced, Mr. Carter is no longer a good parent. We do not have a situation where the court can be on top of a visitation situation at all times. The only thing that we can look at is the situation that we have today is not working.
The Court grants Mr. Carter’s petition for change of custody.
(Emphasis added).
The chancellor made the following findings in his written order:
1. That the allegations of the plaintiff [appellant] are unfounded and unsubstantiated.
2. That defendant [appellee] is found to be free from guilt and is not in contempt of this Court.
3. That the Court further finds from the testimony ore tenus the facts and circumstances are such that it is in the best interest of the said minor child be placed with the defendant.
While chancery cases are tried de novo, the chancellor’s decision will not be reversed unless it is shown that his decision is clearly against the preponderance of the evidence. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986); Ark. R. Civ. P. 52(a). Because there are no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties and their witnesses carry as great a weight as one involving the custody of children, we defer to the chancellor’s determination as to the credibility of the witnesses. Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981).
While the primary consideration in a change of custody suit is the welfare and best interest of the child, an order changing custody cannot be made without proof showing a change in circumstances from those existing at the time the original order was made. Sweat v. Sweat, 9 Ark. App. 326, 659 S.W.2d 516 (1983). If there is no showing of a material change of facts, there must be a showing of facts affecting the child’s best interest that were not presented to or known by the court at the time the original custody order was entered. See Kennedy v. Kennedy, 19 Ark. App. 1, 715 S. W.2d 460 (1986). This is because the original decree constitutes a final adjudication that the appellant, not the appellee, was the proper party to have the child, and before an order can be made changing the status, there must be proof justifying a change of custody. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986). Here, the chancellor’s oral findings indicate that he improperly placed upon the appellant the burden of proving that the change was not in the child’s best interest, rather than requiring the appellee to show a change of circumstances. Furthermore, he made no mention or finding of any such change. Looking at the evidence, giving due deference to the chancellor’s determination of credibility, applying the correct law and burden of proof, we find there to be insufficient evidence to show a material change in circumstances justifying a change of custody.
The appellee testified that, every time he tried to pick up Rusty, it seemed like the appellant had some reason for not letting him have the child. The first time was because of dust at the rodeo, the next time was because of the bad people and drinking at the rodeo, and another time because of allegations he was leaving Rusty unattended at the rodeo, which he denied. He stated that his current wife had watched after the boy while he was riding bulls. However, the only specific time he testified to being denied visitation was on December 13,1985. When he arrived to pick up his son, Rusty was crying and saying he did not want to go. He said the appellant told him that he could not have the boy while he was crying. He also testified that Rusty told his wife that the appellant did not like her.
The appellant testified that Rusty had had no problems with visiting his father for the first three months after the divorce, but that, starting about June, he began coming home to her hateful, as if he did not like her anymore, and began to cry when he heard his daddy was supposed to come, saying he did not want to go. The appellant testified that Rusty did not explain his feelings. She stated she had tried to talk with the appellee about the problem, but that he refused to talk about it. She said that, by the time the appellee arrived, Rusty was generally all right and would go with his father. She admitted to denying the appellee visitation three times. The first was in the summer after Rusty had sustained a knot on his head during a visit with the appellee, after falling and bumping heads with his stepbrother. The appellant testified that the next time she refused visitation was when the child was running a fever of 103 degrees and the appellee wanted to take him to a rodeo. The last time she refused visitation was on December 13th, when he was crying, and she had tried for ten minutes to talk him into visiting with his daddy. She offered to let the appellee come in to talk with the child. She said he told her that he paid child support to see him and he was taking him. The appellant said Rusty was pulling on her shirt to keep from going.
The appellant also testified that the child told her his daddy and stepmother were good to him, but that Brad, his eight-year-old stepbrother, was not. She also discussed a nightmare the child had where he kept saying that he did not do it and for Brad to stop kicking him. Her brother testified that Rusty had told him that Brad was mean to him, hitting him and pushing him and not letting him have any toys. He said the child said the reason that he had not told anyone was because he wasn’t supposed to tell on his brother. He testified he noticed a change of attitude in Rusty since his stepbrother had come back from Texas. The appellant’s brother and father testified that Rusty came home with a sore groin the next week. The father testified that Rusty said he told the appellee that Brad had hit him and the appellee told him not to tell on his brother.
The appellant and her family denied saying anything to the child to prejudice him against his father and uniformly testified that they were doing all in their power to get him to go with the appellee. They did admit to having regular discussions about why Rusty did not want to go with his dad.
The appellee and his family denied that Brad was abusing Rusty, testifying that the boys got along well together. The appellee denied ever trying to turn the boy against the appellant’s family. He explained the bump on Rusty’s head and said he watched the boy for three hours after the injury to make sure his pupils did not change. He denied that Rusty had ever told him anything about a kick in the groin. He also testified that he would not deny the appellant visitation if he had custody.
While the appellee testified generally that he was denied visitation everytime he went after the child, he could only testify as to being denied visitation one time. The appellant admitted to denying the appellee visitation three times. The only testimony regarding the instillation of fear or hate in the child was that the child once told his stepmother that his mother did not like her. The appellee additionally testified that he thought the appellant’s family was putting it into the child’s mind that Brad was hurting him. This was denied by the appellant’s family and there was no evidence to support his conclusion. The chancellor’s finding that the child was obviously upset and disturbed every time visitation came around is supported by the evidence. However, his conclusion that custody should be changed is not. There is no evidence to support a finding that the appellant is intentionally trying to prevent the child from seeing his father. Custody is not to be changed merely to punish or reward a parent. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975). If the chancellor felt the appellant and her family were trying to thwart the child’s visitation with his father or trying to teach the child to dislike the appellee and his family, he had the power to hold her and her family in contempt for failure to comply with the visitation orders. Such contempt powers should be used prior to the more drastic measure of changing custody in order to resolve visitation problems and insure some stability in the child’s life.
Because we review equity cases de novo upon the record made in the chancery court, we resolve the issues based on that record; the fact that the chancellor based his decision on an erroneous conclusion does not preclude us from reviewing the entire case de novo. Ferguson v. Green, 266 Ark. 556, 587 S. W.2d 18(1979). When the evidence in the case has been fully developed and we can determine the equities of the parties, as is the case here, we should decide the case without remanding it to the chancery court. Id., accord, Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1980). Because the chancellor changed custody, he did not address the appellee’s alternate request for a reduction in child support. Both sides presented evidence from which we can reach a decision on this issue. Therefore, we will look to see whether the chancellor should have granted the appellee’s request that the court reduce his child support payments.
It is settled law that a modification in the amount of child support to be paid must be based upon the showing of changed conditions since the entry of the decree. See Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953). The assumption in considering a petition for modification of child support is that the chancellor fixed the proper amount of support in the original decree. Eubanks v. Eubanks, 5 Ark. App. 50, 632 S.W.2d 242 (1982). The party seeking the modification has the burden of showing a change in circumstances sufficient to require modification. Id.
The appellant testified that she worked for the San Antonio Shoe Company since before the divorce and was bringing home $150-$250 per week and that, other than child support, she had no other means of support. The appellee testified that he wanted his child support reduced to an amount commensurate with the amount recommended for his income level on the support schedule, to be paid once a month. He testified that, currently, he brought home $300.00 a week or $16,000.00 a year. Upon cross-examination, he testified that his income had decreased a little since the entry of the divorce agreement. He did not testify to the degree of reduction or to any material increase in expenses that would prevent him from paying the amount of support originally awarded. The appellee failed to present evidence demonstrating a material change in the circumstances of the parties, and therefore, his petition for reduced child support must be denied.
In summary, we hold that the chancellor erred in requiring the appellant to prove that a change of custody was not in the child’s best interest and that his decision changing custody was clearly erroneous and against the preponderance of the evidence. Therefore, we reverse, directing that custody of the child be restored to the appellant and denying the appellee’s petition for reduced child support.
Reversed.
Cloninger, J., and Wright, Special Judge, agree. | [
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Donald L. Corbin, Chief Judge.
Appellant, Jimmy R. Marrable, appeals from a decision of the Arkansas Workers’ Compensation Commission, which reversed and vacated an opinion of the Administrative Law Judge that awarded appellant permanent total disability benefits and a controverted attorney’s fee thereóft. We affirm.
It is undisputed that appellant sustained a compensable injury on June 11, 1977, and was awarded 45% permanent partial disability benefits (25 % anatomical and 20% wage loss) on March 30, 1982. In 1986, appellant sought permanent total disability benefits which were granted by the Administrative Law Judge. This award was appealed to the full Commission. The Commission’s order dated June 17,1987, recited its findings and concluded that appellant had not established a sufficient change in physical condition to justify an increase in disability benefits under Ark. Code Ann. § 11-9-713 (1987) (formerly Ark. Stat. Ann. § 81-1326 (Repl. 1976)).
For reversal, appellant argues that the full Commission erred when it overturned the decision of the Administrative Law Judge and held that claimant failed to prove by a preponderance of the evidence that his condition had worsened.
In support of his argument, appellant contends that it was the duty of the Commission to make findings of fact based on the preponderance of the evidence. While the Commission is required to make findings by that standard, on appellate review we seek only to determine whether its findings are supported by substantial evidence. In reviewing the evidence, we give it its strongest probative force in favor of the Commission’s findings and will affirm if fair-minded persons with the same set of facts before them could have reached the conclusion reached by the Commission. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983). Moreover, the question for the appellate court is not whether the evidence would have supported findings contrary to the ones made by the Commission, but whether the evidence supports the findings made. Massey Ferguson, Inc. v. Flenoy, 270 Ark. 126, 603 S.W.2d 463 (1980).
Appellant acknowledges that a decision of the Workers’ Compensation Commission is entitled to the weight of a jury verdict, Cooper Industrial Products, Inc. v. Worth, 256 Ark. 394, 508 S.W.2d 59 (1974); however, he argues that like a jury verdict, the decision of the Commission cannot be sustained if based solely upon speculation and conjecture. Thomas v. Southside Contractors, Inc., 260 Ark. 694, 543 S.W.2d 917 (1976). Here, appellant first asserts that the Commission’s decision is based purely on speculation and conjecture because the medical evidence was not carefully analyzed.
The medical evidence of record reveals that in 1985, appellant’s attorney requested a medical assessment of appellant’s disability rating. Pursuant to this request, Dr. W.S. Bundrick, appellant’s treating physician, and Dr. John L. Wilson examined appellant in February/March of 1985. Dr. Bundrick opined that appellant’s original 25 % impairment rating was correct while Dr. Wilson opined that appellant’s rating was 40 %. Approximately one year later on March 3,1986, Dr. Bundrick responded to another inquiry from appellant’s attorney stating that appellant’s rating “could be” increased up to 30-35 % due to persistent arachnoiditis with nerve root deficit in the right leg, along with degenerative disc changes.
In making its findings, the Commission pointed out that Dr. Bundrick had the opportunity to observe appellant over a period of years while Dr. Wilson had never seen appellant prior to the 1985 examination. The Commission found both doctors credible but noted that the different degrees of anatomical impairments assessed by each doctor in 1985 represented a difference of medical opinion. The Commission did not accept Dr. Bundrick’s 1986 report as persuasive medical evidence of a changed physical condition because appellant’s leg injury is a scheduled injury not apportionable to the body as a whole without permanent total disability. Secondly, the Commission stated that the degenerative disc changes discussed in this report are part of the normal aging process and not compensable. The Commission was not persuaded that Dr. Bundrick definitely intended to increase appellant’s rating because he used the phrase “could be” increased which the Commission felt was a concession made to placate counsel.
It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Wasson v. Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984). The testimony of medical experts is an aid to the Commission in its duty to resolve issues of fact. It has a duty to use its experience and expertise in translating that testimony into findings of fact. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted; and when it does so, its findings have the force and effect of a jury verdict. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). Although the Commission did give consideration to the medical reports, there was other evidence from which it could, and did, find that appellant had not established a change in physical condition sufficient to reopen his claim. In reversing the decision of the ALJ, the Commission stated:
In addition to the medical evidence, Marrable testified regarding his condition, and it was stipulated that his wife would have corroborated his testimony. Marrable insists that he now feels “worse” in general but admitted that he no longer uses a back brace or TENS units. Although he now undergoes cortisone injections, he has dropped the physical therapy sessions. He takes the same medication that he was taking originally. His testimony about his daily activities indicates that his lifestyle is markedly similar to that described at the 1980 hearing. While there have been some changes, they are either insignificant or due to reasons other than the injury. For example, he no longer helps his children get dressed, but that is because they are now old enough to dress themselves. Since his wife works, he is still the person mainly responsible for preparing breakfast for the children and getting them ready for school. He still helps with the housework. He gave up deer hunting but instituted a walking program. He mainly sits or lies around the house all day now and mainly sat or lay around the house all day in 1980. He says he is in constant pain now, and he was in constant pain then. In short, we are unable to find that Marrable’s condition has changed.
Viewing all evidence in the light most favorable to the Commission’s findings, we find substantial evidence to support the Commission’s conclusion.
Appellant also argues that the Commission did not give him the benefit of the doubt in making factual determinations. We find appellant’s argument without merit in light of Act 10 of 1986. The pertinent provisions of the Act state:
(3) Administrative law judges, the commission, and any reviewing courts shall construe the provisions of this chapter liberally, in accordance with the chapter’s remedial purposes.
(4) In determining whether a party has met the burden of proof on an issue, administrative law judges and the commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party.
Act 10 of 1986 (2nd Ex. Sess.) (codified as amended at Ark. Code Ann. § ll-9-704(c)(3), (4) (1987) (formerly Ark. Stat. Ann. § 81-1323(c) (Supp. 1985)).
In the present case, appellant’s injury occurred, and his claim was filed, prior to the effective date of the act; however, the decisions in question of the Administrative Law Judge and Commission were rendered after the effective date of the Act. This court recently addressed this issue in Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). In Fowler, the Commission reversed the Administrative Law Judge and held that the claimant’s heart attack was not compensable. In reaching its decision, the Commission stated that it “weighed the evidence impartially and without giving the benefit of the doubt to any party in conformity with Act 10 of 1986.” This court affirmed the Commission’s decision finding that the change brought about by the amendment is fairly characterized as procedural. Further, it was stated that procedural changes are generally held to be immediately applicable to existing causes of action and not only to those which may arise in the future unless a contrary intent is expressed in the statute. The Fowler court recognized that prior to 1986, the Commission was obligated to give the claimant the benefit of the doubt in making factual determinations. However, application of the amendment to cases heard after the passage of the act, where the injury occurred prior to passage, was held appropriate. Additionally, it was noted that if the legislature intended that the new rule apply only to cases filed after the effective date, it could have so stated. Applying Act 10 of 1986 and its construction in Fowler to the case at bar, we conclude that appellant has failed to demonstrate that the Commission did other than weigh the evidence impartially and without giving the benefit of the doubt to any party.
Affirmed.
Mayfield, J., dissents. | [
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Melvin Mayfield, Judge.
Appellant was found guilty by a jury of the crime of attempted burglary. He was sentenced as an habitual offender to a term of 10 years in the Arkansas Department of Correction and fined $5,000.
Joy Butler, who lived directly across the street from Meadors Lumber Company, in Alma, Arkansas, testified that on the night of December 18,1986, her husband, who had taken the dog out, came back into the house and told her that the lumberyard burglar alarm was going off. She stepped out on her front porch and saw a man trying to climb over the fence that enclosed the lumberyard. He was on the inside, trying to get out. Mrs. Butler told her son, Jerry Adamson, who had been sitting in the living room with her, what she saw, and he went outside and yelled at the man. The man climbed down off the fence and started running. While Mrs. Butler called the police, her son chased the man across some railroad tracks and through a produce shed to where he was arrested by a police officer. At trial, Adamson was not able to identify the man he saw running down the street but testified that the man climbing over the fence was the man the police arrested.
Officer Harris testified that he arrested the appellant pursuant to a call he had received. He said he observed appellant running south coming onto Fayetteville Street, and he chased appellant in his unit and on foot. He testified that appellant was running down the street with gloves on, holding a crowbar, and that appellant dropped the crowbar and the gloves and came to a complete stop just prior to his arrest. Harris patted appellant down and found a knife in his pants pocket. This was about 8:30 p.m.
Russell White, of the Alma Police Department, was called to assist Officer Harris. He saw a white, 1976 Ford parked just off the alley behind the old bank building in the area of the lumberyard. After appellant was advised of his rights, he told Officer White that he had driven the vehicle to where it was sitting behind the bank building.
Steve Meadors, who worked for Meadors Lumber Company, testified that on the morning of December 19, he discovered a two-foot by two-foot hole in the back wall of the office and that the hole went all the way through the wall. He said the wall consisted of Sheetrock with insulation and insulation board on the outside. He said Sheetrock was on a desk beneath the hole in the wall, and insulation was scattered on the floor beneath the hole. Meadors said they have a burglar alarm that is set off by motion inside the office. He did not know the appellant and had not given him permission to be in the lumberyard on the night of December 18, 1986.
Carlos Brown testified that the appellant had worked for him on December 18, 1986. Appellant got off work about 6:30 p.m. His job was helping to measure, cut, and hang Sheetrock.
On appeal, appellant argues the trial court erred in failing to grant his motion for a directed verdict made at the conclusion of the state’s testimony and renewed at the close of all the testimony. This motion was a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). In resolving the question of the sufficiency of the evidence in a criminal case, the appellate court views the evidence in the light most favorable to the appellee and affirms the judgment if there is substantial evidence to support the finding of the trier of fact. Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986). Substantial evidence is that which is of sufficient force and character that it will with reasonable and material certainty and precision compel a conclusion one way or the other, without resorting to speculation or conjecture. Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). The fact that evidence is circumstantial does not render it insubstantial. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982). When circumstantial evidence alone is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis; whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury. Murry v. State, 276 Ark. 372, 635 S.W.2d 237 (1982). It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985). Also, the action of an accused in fleeing from the scene of a crime is a circumstance that may be considered with other evidence in determining probable guilt. Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973).
Arkansas Statutes Annotated § 41-701 (Repl. 1977) [Ark. Code Ann. § 5-3-201 (1987)] provides:
(1) A person attempts to commit an offense if he:
(b) purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.
Section 41-2002 (Repl. 1977) [Ark. Code Ann. § 5-39-201 (1987)] provides:
(1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.
Although the appellant was convicted of attempted burglary, it was nevertheless necessary to prove that he attempted to enter an occupiable structure with the purpose of committing therein an offense punishable by imprisonment. A building where people assembled for social activities, religious sessions, and classroom meetings has been held to be an occupiable structure regardless of whether anyone was occupying it at the time. Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977). See also Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978) (defendant went into a seed company building when it was not open for regular business). The real question in the present case is whether the evidence is sufficient to support a finding that the appellant entered the lumber company’s office building with the intent to commit an offense punishable by imprisonment.
In Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980), the court said that the United States Supreme Court’s decisions in Mullaney v. Wilbur, 421 U.S. 684 (1975), and Patterson v. New York, 432 U.S. 197 (1977), held that due process requires the prosecution to prove beyond a reasonable doubt every element of the crime charged. The Norton opinion also stated that specific criminal intent and illegal entry are both elements of the crime of burglary and that existence of the intent cannot be presumed from a mere showing of the illegal entry. A conviction for burglary was reversed in Norton because, the court said, “[a]t most, the evidence revealed that appellant was standing inside the doorway of an office building which he had illegally entered and from which nothing was taken, speaking to his friends passing by.” See also Wortham v. State, 5 Ark. App. 161, 634 S.W.2d 141 (1982) (conviction for burglary reversed where the defendant was discovered standing in a doorway in a house, but there was no proof that he had attempted to harm anyone, take anything, or commit any other crime).
Recognizing the proof requirements set out in Norton, we believe the appellant’s conviction must be affirmed in the present case. First, we have evidence from which the jury could find that the burglar alarm was activated when the Sheetrock and insulation fell into the office from the hole made through the office wall. The jury could find that the appellant then ran from the building, climbed the fence, and tried to run away from Jerry Adamson and Officer Harris. In Grays v. State, supra, a man who entered a business building in the night, when the business was not open, ran from the building when police officers inside the building shined a light on him and told him to “freeze.” The appellate court specifically cited Patterson v. New York, supra, and its requirement that the state must prove every material element of the offense charged and held that the trial court did not err in refusing to instruct the jury on the lesser included offense of criminal trespass because “[e]ven when we consider the facts in the light most favorable to appellant we can find no rational basis for a verdict acquitting appellant of the offense of Burglary ....” The Norton case distinguished Grays on the basis that the defendant in Grays ran when he was discovered in the building by the police officers and the defendant in Norton did not. The opinion states: “We have consistently suggested that the flight of an accused to avoid arrest is evidence of his felonious intent.” See 271 Ark. at 454. So, in the present case we have the evidence that this appellant ran from the building and from Officer Harris for some distance before he stopped.
In the second place, in Grays the appellate court could “find no rational basis” for the defendant in that case to enter the building during the night that would acquit him of burglary. This reasoning applies in the present case. The appellant here did not testify but we cannot think of any rational reason to explain his conduct except an attempt to commit burglary. As the court in Grays said, “the fundamental theory, in absence of evidence of other intent or explanation for breaking or entering an occupiable structure at night, is that the usual object or purpose of burglarizing an occupiable structure at night is theft.” This point marks a difference between this case and Wortham v. State, supra, where the opinion states that the defendant in that case had, on a prior occasion, talked to the girls who lived in the house which he entered without seeking permission. The opinion says that while that appellant may have intended to commit some crime when he entered the open door, “it is equally reasonable” to believe that he wanted only to talk to the girls again. See also Washington v. State, 268 Ark. 1117, 599 S.W.2d 408 (Ark. App. 1980), where the court in reversing a burglary conviction said, “an innocent purpose would not be inconsistent with the circumstances shown.” 268 Ark. at 1121.
The existence of criminal intent or purpose is “a question of fact for the jury when the evidence shows facts from which it may reasonably be inferred.” Grays, 264 Ark. at 570 (quoting from Cassady v. State, 247 Ark. 690, 447 S.W.2d 144 (1969)). We think there is substantial evidence to support the jury’s verdict in the present case.
Affirmed.
Jennings and Coulson, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this eminent domain case, the Arkansas State Highway Commission, brought an action for condemnation of 7.33 acres of the appellees’ 8.8 acre tract in Hot Springs, Arkansas. The appellees filed a counterclaim alleging that the Highway Department’s estimated compensation was inadequate, and seeking just compensation for the taking of their property. The jury fixed the landowners’ damages at $1,363,000.00. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in denying its motion to strike the landowner/appellee’s testimony with respect to the value of the land and improvements. We affirm.
The condemned property, acquired by the appellant because of highway construction, was zoned for commercial use and bordered on Highway 7 in Hot Springs. Several improvements are located on the property, including flea market stalls, a warehouse, a workshop, two cottages, and a 4,900 square foot residence. Jack Pakis, the landowner, testified that, in his opinion, the value of the property was $2,083,526.00. That figure included approximately $1,437,000.00 for the land itself, computed on the basis of its value as commercial property; $45,000.00 for the flea market stalls; and $390,000.00 for the residence.
The appellant argues first that Mr. Pakis improperly combined residential and commercial values in his value testimony and that the trial court erred in denying its motion to strike the testimony. The Arkansas Supreme Court has held that it was error for the trial court to refuse to strike the testimony of three witnesses who testified that the highest and best use of the property was commercial, but who intermingled residential and commercial values in their opinions of just compensation for the entire property. Arkansas State Highway Commission v. Toffelmire, 247 Ark. 74, 444 S.W.2d 241 (1969). However, we are not convinced that the landowner in the case at bar combined residential and commercial values in his opinion of the value of the property. Although the $390,070.00 attributable to the residence was added to the $1,437,480.00 attributed to the commercial value of the land in the landowner’s opinion of the property value, the landowner did not state that his opinion of the value of the house was based on its value as a residence, and there was testimony to show that other homes in the area had been converted into restaurants or otherwise used commercially. It is entirely proper to allow evidence of all potential uses of a landowner’s property, Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W.2d 495 (1967), and on this record we cannot say that the landowner’s testimony improperly combined commercial and residential values.
Next, the appellant contends that the landowner failed to depreciate the value of the improvements, and that the trial court erred in refusing to strike the landowner’s testimony on that basis. On cross-examination, Mr. Pakis stated that he did not depreciate the improvements in determining their value; in addition, he stated that, although he included an estimate of the value of the improvements in the flea market area in his opinion of the overall value of the property, he did not believe that those improvements contributed any additional value to the land.
Proper deduction must be made for depreciation by wear and tear when evidence of the construction and cost of buildings is admitted as relevant to the extent to which the buildings enhance the market value of the real estate. Arkansas State Highway Commission v. Person, 258 Ark. 379, 525 S.W.2d 77 (1975). In Person, the Supreme Court held that a landowner’s testimony making no deduction for wear and tear was properly admitted where the landowner gave reasons for his belief that there was no functional or economic depreciation. Person, 258 Ark. at 387. In the present case, Mr. Pakis testified that he did not apply depreciation to the residence, warehouse, or flea market area because he did regular maintenance which kept the structures in “perfect shape.” An appraiser testifying on behalf of the Highway Department testified that it was readily apparent from his examination of the residence that a very stringent maintenance program had been followed. We think that Mr. Pakis offered a reasonable basis for concluding that no deduction for wear and tear was proper in this case, and we find no abuse of discretion in the trial court’s denial of the appellant’s motion to strike the testimony on this ground. See Person, supra. Nor do we think that the trial court erred in denying the motion to strike on the theory that the landowner improperly included the value of the flea market structures in his opinion of the overall value of the land. A landowner expressing an opinion based on his familiarity with the property has more leeway in fixing values than does an expert, and, to demonstrate error in the trial court’s refusal to strike such testimony, the adverse party must show that there was no reasonable or logical basis for the landowner’s opinion. Arkansas State Highway Commission v. Person, supra. A landowner need not be shown to be an expert on values or even to be acquainted with the market value of such property; instead, his qualification to give estimates of his property’s value is based on his relationship to the property as owner. Arkansas State Highway Commission v. Mullens, 255 Ark. 796, 502 S.W.2d 626 (1973). If the landowner’s values are shown on cross-examination to be founded on a questionable basis, that fact bears on the weight to be given to his testimony. Id. Here, the structural value of the flea market buildings was only one element of the value the landowner assigned to the entire property before the taking. Although Mr. Pakis’ testimony that he did not believe the flea market buildings enhanced the market value of the property should be considered in determining the weight to be given his overall evaluation of his property’s value, the trial court was not required to strike his testimony. See Person, supra.
Affirmed.
Coulson and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with aggravated robbery, a violation of Ark. Stat. Ann. § 41-2102 (Supp. 1985) [Ark. Code Ann. § 5-12-103 (1987)]. After a non-jury trial, the court found the appellant guilty of that charge and sentenced him to ten years in the Arkansas Department of Correction. From that conviction, comes this appeal.
For reversal, the appellant contends that his aggravated robbery conviction is not supported by substantial evidence because there was no evidence to show that he knew his accomplices intended to employ a deadly weapon in the robbery. He also contends that the evidence is insufficient to support a conviction even for the lesser included offense of robbery.
We first address the appellant’s contention that the evidence was insufficient to support a conviction for the lesser included offense of robbery. A person commits robbery when he employs or threatens to employ physical force upon another with the purpose of committing a theft. Ark. Stat. Ann. § 41-2103 (Repl. 1977) [Ark. Code Ann. § 5-12-102 (1987)]. The charges against the appellant were based on the theory that he participated in the crime as an accomplice. Accomplice liability is governed by Ark. Stat. Ann. § 41-303 (Repl. 1977) [Ark. Code Ann. § 5-2-403 (1987)], which provides that:
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he: (a) solicits, advises, encourages or coerces the other person to commit it; or (b) aids, agrees to aid, or attempts to aid the other person in planning or committing it. . . .
There was evidence at trial to show that Richard Hessee, the manager of a Pizza Hut restaurant, was robbed at approximately midnight on December 4,1986. Keith Williams testified that he was present at and participated in the robbery. He also stated that Ricky Cooper was told, by a girlfriend who was formerly employed at the Pizza Hut, that the manager left the restaurant with money bags after locking up. Cooper relayed this information to Williams. Williams further stated that, on December 4, 1986, he, Cooper, and the appellant discussed getting a pizza and drove past the Pizza Hut three or four times in the appellant’s car. They then drove to an apartment complex one or two blocks away from the Pizza Hut, where Cooper and Williams knocked on a girlfriend’s door. Williams testified that the appellant told him and Cooper to “go get it from the manager,” and remained in the car while Cooper and Williams walked to the back of the Pizza Hut; that, when Mr. Hessee came out of the restaurant, Cooper pointed a gun at him; and that they robbed Hessee of his briefcase, ran back to the apartment complex, and drove off with the appellant in the appellant’s car. Hessee also testified, stating that he had been robbed in the Pizza Hut parking lot by two men on December 4, 1986; that one of the men pointed a revolver at him while the other frisked him; and that they ran from the parking lot after taking his briefcase, keys, and billfold. Finally, a statement made by the appellant was introduced into evidence. In his statement, the appellant admitted being with Williams and Cooper on the night of the robbery. He stated that the three of them were together at Cooper’s girlfriend’s house at 11:30 p.m. on December 3,1986, and that he had overheard Cooper talking about robbing the manager of the Pizza Hut. He also stated that he told Williams and Cooper that he would go with them to the Pizza Hut, but that he would not participate in a robbery; that he took Williams and Cooper to the Pizza Hut shortly after midnight; that he parked about two blocks away from the restaurant; that Williams and Cooper got out of the car, walked toward the Pizza Hut, and came running back to the car fifteen minutes later; that Cooper had twelve dollars in his hand when he returned, and complained because “that guy only had twelve dollars;” and that the three men then left, with Cooper driving the appellant’s car.
We first address the question of the sufficiency of the accomplice’s (Williams) statement. The testimony of an accomplice on which a conviction is based must be corroborated by other evidence which is substantial, is independent of the statement of the accomplice, and tends to connect the defendant with the commission of the crime. Kennel v. State, 15 Ark. App. 45, 689 S.W.2d 5 (1985). The corroborating evidence need not be sufficient to support a conviction in and of itself. Id. In this case, the appellant’s statement and Hessee’s testimony adequately establish that a crime was committed, and the appellant’s admission that he drove Williams and Cooper to and from the Pizza Hut despite his knowledge that a robbery had been planned connects the appellant with the commission of the crime. Thus, we would find no merit in a contention of insufficient corroboration even had the issue been argued by the appellant.
In reviewing criminal convictions by a court sitting without a jury, we view the evidence and all permissible inferences to be drawn from it in the light most favorable to the State, and we affirm if there is substantial evidence to support the conviction. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985); Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985). Substantial evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). The appellant in the case at bar has admitted hearing a plan to rob the Pizza Hut discussed, and that he nevertheless drove Williams and Cooper to and from the restaurant. In light of this evidence, and the testimony to the effect that the appellant told the other men to “go get it from the manager,” we think the evidence is sufficient to support a conviction for the lesser included offense of robbery. We are unpersuaded by the argument that the appellant’s statement to “go get it from the manager” meant only that the appellant wanted Williams and Cooper to go get a pizza. This interpretation of the phrase loses plausibility in light of the appellant’s trial testimony that he thought the Pizza Hut was closed when the three men initially drove past it. We think that on this evidence the trier of fact could, without resorting to conjecture, find that the appellant purposefully aided and encouraged Williams to commit robbery.
The appellant next contends that his conviction for aggravated robbery is not supported by substantial evidence. He argues that there was no evidence that he was aware that his accomplices intended to use a gun in the robbery, and that such knowledge is a necessary element of accomplice liability for aggravated robbery. We do not agree.
Aggravated robbery is defined as robbery committed by a person armed with a deadly weapon, or by one who represents himself to be so armed. Ark. Stat. Ann. § 41-2102 (Supp. 1985) [Ark. Code Ann. § 5-12-103 (1987)]. Like the appellant in the case at bar, the appellant in Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983), was convicted of being an accomplice to aggravated robbery but denied knowledge that his accomplice who entered and robbed the store had a weapon. On appeal, he argued that the trial court erred in refusing to instruct the jury on the lesser included offense of robbery. In Savannah we noted that:
For purposes of this case, aggravated robbery is distinguished from robbery because in the former, the person is, or represents he is, armed with a deadly weapon. In robbery, the person employs or threatens to employ physical force. See Ark. Stat. Ann. § 41-2102 and -2103 (Repl. 1977). In the instant case, this distinction becomes important if the evidence showed that appellant aided or advised another in planning or committing a robbery but that the other person committed the greater inclusive offense of aggravated robbery. Under these circumstances, appellant’s liability would be limited to the lesser included offense of robbery. See Ark. Stat. Ann. § 41-303 (Repl. 1977) and its Commentary.
Id., 645 S.W.2d at 696. However, we think that Savannah is distinguishable from the situation presented in the case at bar. At issue in Savannah was whether, in a jury trial, it was error to refuse to instruct the jury on the lesser included offense of robbery. The essential question there was whether the evidence would permit a finding that the appellant therein intended only to aid or advise another to commit the lesser offense. In contrast, the case at bar arose from a bench trial and presents no question regarding jury instructions; here the question is whether the evidence was insufficient for the fact-finder to find that the appellant aided or advised others in the commission of the greater offense of aggravated robbery.
The Commentary to Ark. Stat. Ann. § 41-303 (Repl. 1977), cited in Savannah, supra, contains the following language:
If the crime actually committed is a greater inclusive offense of the offense planned, accomplice liability respecting the intended lesser included offense attaches in connection with the aider or advisor.
Accomplice liability is thus defined in terms of the crime which was planned. In the case at bar, there was evidence that a firearm was used in the crime; that the appellant was present when the crime was planned, and that the appellant transported his accomplices to and from the scene. Under these circumstances, we think the evidence was sufficient to permit the fact-finder to infer that the appellant knew that an aggravated robbery was planned, and we hold that the aggravated robbery conviction was supported by substantial evidence.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal results from the chancellor’s refusal to modify appellant’s alimony award and determine the parties’ intent regarding the termination of alimony. We affirm the chancellor on all points.
The parties were divorced on May 13, 1986. On the day of the hearing, the parties’ attorneys dictated a stipulation into the record of the court, whereby appellee, Louis Jarnigan, defendant at trial, agreed to withdraw his answer and counterclaim to appellant’s complaint for divorce and the parties agreed to a division of their marital property. In regard to appellee’s military retirement pay, the parties’ stipulation provided:
In regards to the alimony, [appellee] is a military retiree and receiving military retirement benefits. He agrees to pay, as alimony, to [appellant] one half of that retirement check. . . . [I]n relation to this settlement, then the retirement check will be split fifty-fifty, fifty percent of it going as alimony ....
[There was then a discussion off the record and the stipulation continued:]
In preparing this decree and property settlement, we will have to refer to Federal Regulations in regards to the terminology but it is our intent that this be alimony, at this time, and we will have to get the proper terminology and we will have to plug in however the military retirement people in Denver, Colorado, designate the payment to be made. And I take it, both parties will agree whether the check comes in as one or split between the two ....
At the conclusion of this agreement, appellee’s attorney asked appellant if the stipulation was her agreement as stipulated and she affirmed that it was. The terms of the oral stipulation agreement were incorporated into the divorce decree and it provided in part as follows:
4. That a property settlement agreement which is hereby ratified by the Court is as follows:
(i) [Appellee] is presently a recipient of a military retirement benefit and the [appellee] hereby agrees to pay as alimony 50% of the net military retirement benefits to [appellant], that he agrees to complete all paperwork to that designation as alimony ....
On February 25, 1987, appellant filed a petition to modify the divorce decree alleging that the parties intended that she receive one-half of appellee’s military retirement benefits until appellee’s death and that appellee had mistakenly labeled her half of the benefits as alimony. A hearing was held on appellant’s motion, at the conclusion of which, the chancellor found the divorce decree reflected the parties’ intent that appellant receive fifty percent of the net retirement check as alimony, that there was no misunderstanding on the part of appellant, and that there was no basis for modifying the decree. The court further stated it had grave doubts as to whether it could remake a property settlement agreement between the parties absent a showing of fraud or overreaching. The court declined to make any finding on whether appellant’s alimony would terminate if she remarried, stating that because the event is uncertain, there is no question before the court upon which it can make a finding.
Appellant first argues the chancellor erred in refusing to modify the agreement to reflect that she receive one-half of appellee’s gross retirement pay as her share of marital property. She contends the parties’ stipulation was not an independent agreement and was modifiable by the chancellor, and the case should be remanded to the chancellor to establish the true intentions of the parties.
In Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983), we held that when a stipulation dictated into open court covers all the rights and liabilities of the parties in a total and complete agreement, it will have the full force and effect of a binding agreement, and it will not be modifiable. The stipulation in Linehan is similar to the stipulation in the case at bar. In Linehan, on the day set for the divorce hearing, the parties, through their respective attorneys, negotiated a stipulated agreement. The appellant’s counsel dictated it into the record of open court, and the stipulation covered every facet of the controversy from a division of property down to visitation with the children. The divorce decree incorporated the terms of the stipulated agreement with no variances. On appeal, the appellant contended the stipulated agreement could not qualify as an independent contract because it was not in writing nor signed by the parties. This court, rejecting the appellant’s contention, stated:
Oral stipulations made in open court which are taken down by the reporter and acted upon by the parties and court are valid and binding. Such stipulations are in the nature of a contract. . . . Contractual stipulations affect the subject matter of the lawsuit. They deal with the rights or property at issue and are styled stipulations only because they occur in connection with the litigation. Lawrence v. Lawrence, 217 N.W.2d 792 (N.D. 1974).
... A contractual stipulation can only be withdrawn on grounds for nullifying a contract, i.e., fraud, misrepresentation.
Linehan, 8 Ark. App. at 180-81, 649 S.W.2d at 839.
In the case at bar, appellee’s attorney dictated the stipulation into the record of the court. The stipulation withdrew appellee’s contest of the divorce and provided in detail for a division of the parties’ property. At the conclusion of the stipulation, both parties were asked if the stipulation reflected their agreement and they affirmed that it did. The stipulation was a complete settlement of the parties’ marital rights and was not modifiable by the court.
Furthermore, even if the stipulation was subject to modification, we do not find the chancellor erred in failing to do so. Appellant, at the modification hearing, testified that it was her understanding that she would receive one-half of appellee’s military retirement benefits as property and not alimony, but that she did not care what it was called as long as she received half of the benefits. She stated she agreed to the stipulated property agreement, but she did not understand it. She stated that when she received the proposed decree with the alimony wording in it she voiced her opposition to her attorney but did not file an objection. Appellant’s attorney who represented her at the time the stipulation was dictated but was relieved as her attorney prior to the decree being entered testified that, at the time of the stipulation, he could not recall that it was the parties’ intention that her share of the retirement benefits be considered alimony. Appellee testified he specifically requested his attorney to use the term alimony in the stipulation, because it was not his intention to pay permanent alimony but for it to terminate upon appellant’s remarriage.
At the conclusion of the hearing, the chancellor stated he was wholly persuaded appellant was not misled nor did she misunderstand, and it was entirely clear from the beginning that the parties intended and expressed that appellee’s military retirement benefits should be received by appellant as alimony. He also found that throughout the divorce appellant was represented by or consulted with four separate attorneys and it could not be said that appellant did not have the full opportunity to be informed about the matter.
We review chancery cases de novo on appeal and the chancellor’s findings of fact will not be reversed unless they are clearly against the preponderance of the evidence; we give due regard to the chancellor’s superior opportunity to assess the credibility of the witnesses. Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987).
Appellant further argues that the chancellor erred in not finding her alimony should be based upon fifty percent of appellee’s gross retirement pay. The chancellor noted that the wording of the decree, “[appellee] hereby agrees to pay as alimony 50% of the net military benefits to the [appellant],” differed from the wording of the stipulation, “ [appellee] agrees to pay, as alimony, to [appellant], one half of that retirement check.” The chancellor concluded, however, there was no substantial difference between the decree and stipulation, because under both wordings the alimony would be based upon one-half of the money received by appellee after all the deductions had been subtracted. We agree with the chancellor’s conclusion that, in terms of the dollar amount, the stipulation and decree are the same.
Appellant also contends that the exact amount of the deductions which appellee can elect to withhold from his check should be set to prevent appellee from receiving a windfall by electing to have a larger amount of his check withheld. The chancellor found the decree and stipulation both provided for appellant to receive one-half of appellee’s net retirement benefit, i.e., one-half of appellee’s retirement check as alimony. There is no provision in the stipulation or decree that appellee is not to have deductions withheld from his gross military retirement pay nor do they provide that appellee’s pay is to be split and deductions withheld only from appellee’s portion. While we agree with appellant that appellee could have a larger amount withheld from his check in order to reduce the alimony she receives, it is clear from the parties’ actions that this is not their intent; and there is no evidence appellee has attempted to do so. We therefore find it unnecessary to interpret the parties’ contract where there is no evidence of bad faith or breach on the part of appellee.
We also find no error in the chancellor’s refusal to determine whether appellant’s entitlement to alimony would terminate in the event she remarried. Normally, remarriage is a sufficient basis to terminate alimony. McGaugh v. McGaugh, 19 Ark. App. 348, 721 S.W.2d 677 (1986). However, remarriage of an ex-spouse does not automatically terminate the obligation as there are circumstances under which continued payment to the ex-spouse may be warranted. Frawley v. Smith, 3 Ark. App. 74, 622 S. W.2d 194 (1981). At the time of the hearing appellant had not remarried and the chancellor held the question was not properly before the court.
The case of McGaugh, relied on by appellant, is distinguishable from the case at bar. There, this court reversed and remanded the case to the chancellor to consider evidence showing when the parties intended for the appellee’s alimony to terminate. Although it is not apparent from reading McGaugh, the record filed in this court demonstrates that the appellee in McGaugh had remarried at the time the appellant sought a modification of the divorce decree. Here, appellant had not remarried when she sought a determination from the chancellor; therefore, the issue was premature and not properly before the court. To make a determination under this fact situation would have been tantamount to issuing an advisory opinion, which courts are prohibited from doing. See Traveler’s Indem. Co. v. Olive’s Sporting Goods, Inc., 25 Ark. App. 81, 753 S.W.2d 284 (1988).
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellees in this civil case brought an action against the appellant bank for damages arising from an alleged breach of a trust agreement, to which the appellees were beneficiaries. After a jury trial, a verdict in favor of the appellees was returned, and the trial court entered judgment for the appellees in the amount of $10,000.00 plus six percent interest and costs. From that decision, comes this appeal.
For reversal, the appellant contends that the jury finding that the appellant breached a duty to the appellees was against the weight of the evidence, and that the jury finding on the issue of damages was likewise contrary to the weight of the evidence. The appellant also contends that the trial judge erred in denying its motion for a directed verdict on the ground that the appellees waived their rights under the trust agreement by executing a release of a mortgage to which the trust agreement was irrevocably tied. On cross-appeal, the appellees argue that the trial court erred in ordering a remittitur of the jury verdict from $12,500.00 to $10,000.00. We affirm on both the direct and cross-appeal.
The record shows that, in 1979, the appellees sold a forty-acre farm to David and Norva Coles for $128,000.00. The Coles made a down payment of $50,000.00, and executed a $78,000.00 note and mortgage to the appellees to secure the balance of the purchase price. In October 1979, the Coles asked the appellees to release fifteen of the forty acres from the mortgage. The appellees agreed on the condition that the Coles purchase a $10,000.00 certificate of deposit, which would be held in trust for the benefit of the appellees in the event that the Coles defaulted on the note and mortgage. The Coles subsequently executed an instrument labeled “declaration of trust — revocable,” dated October 31, 1979, whereby the appellant bank acknowledged receipt of a $10,000.00 certificate of deposit and agreed to act as trustee. The trust agreement provided that cash dividends on the certificate of deposit were to be paid to the Coles, but that, should the Coles default as to a material term of their first mortgage with the appellees within eight years of the date of the trust agreement, the trustee was to deliver the certificate of deposit to the appellees. By its own terms, the trust agreement terminated after eight years from its inception, or payment of the mortgage, whichever came first. On November 1, 1979, the appellees released the fifteen acres from the mortgage.
On March 31, 1983, the Coles removed the certificate of deposit from the trust account. There was evidence that the certificate was cashed by the Coles and deposited in the appellees’ account as part of a large mortgage payment intended to reduce the principal balance.
In September 1984, the appellees learned that the $10,000.00 was no longer being held by the appellant in the trust account. The Coles subsequently breached their mortgage agreement with the appellees by failing to make scheduled payments for the first three months of 1985. In March 1985, the appellees agreed to release the first mortgage in return for a $35,000.00 payment from the Coles and an unsecured promissory note for the remaining indebtedness of approximately $5,400.00. At that time, the balance on the original note was approximately $40,000.00. After the property was released, the Coles left the area for parts unknown, and never made a payment on the new unsecured note. The appellees subsequently made demand upon the appellant for the $10,000.00 certificate of deposit which was the corpus of the trust agreement. The appellant denied liability, and this action resulted.
The appellant first contends that the jury finding that the appellant bank breached a duty to the appellees is contrary to the evidence, arguing that, because the instrument was labeled a “revocable trust”, the bank acted properly in releasing the corpus of the trust to the Coles for deposit in the appellees’ account. We think that the question of breach of duty hinges on the terms of the trust, an issue which requires the intent of the parties to be determined.
Where the creation of the trust is evidenced by a written instrument, the terms of the trust include not only express provisions of the instrument, but also whatever may be gathered as to the intention of the settlor with respect to the trust from the language used in the instrument as inter preted in the light of all the circumstances of its creation; but it does not include extrinsic expressions of intention varying the effect of the instrument, since these are inadmissible in evidence because of the parol evidence rule.
IV A. Scott, The Law of Trusts § 330 (3d ed. 1967). In the case at bar, the record shows that the trust terms are based on the first mortgage between the appellees and the Coles, and its creation was prompted by the desire of the Deason’s to have additional security after the release of the fifteen acres. Although the trust was labelled as “revocable”, this term was not repeated in the body of the instrument, and no power of revocation was expressly reserved to the settlors. Under these circumstances, we think that the terms of the trust, and thus the extent of the trustee’s duty, was a question of fact, and, on this record, we cannot say that the jury’s finding that the appellant breached a duty to the appellees by releasing the trust corpus to the settlors, without notice to the beneficiaries, was not supported by the evidence. See Hardy v. Hardy, 217 Ark. 296, 230 S.W.2d 6 (1950).
Next, the appellant contends that the trust operated as an unenforceable liquidated damages provision. We do not reach this issue because it was never presented to the trial court. We do not address issues raised for the first time on appeal. C&L Trucking, Inc. v. Allen, 285 Ark. 243, 686 S.W.2d 399 (1985).
As to the appellant’s argument that the trial court erred in denying its motion for a directed verdict, we also affirm. First, the appellant made a general motion for a directed verdict which did not comply with Civil Procedure Rule 50, which states that “a motion for a directed verdict shall state the specific grounds therefor.” Now, in its reply brief, the appellant argues that the motion should have been granted because the Deason’s released the mortgage and thereby waived their right to rely on the terms of the trust. Initially we note that we do not consider arguments raised for the first time in a reply brief. Shueck Steel, Inc. v. McCarthy Brothers Co., 289 Ark. 436-A, 717 S.W.2d 816 (1986) (supp. op. on reh’g). Even had the appellant raised the issue in his original brief, it is clear that no such contention was expressed to the trial court in the motion for directed verdict and there is nothing in this record to show that the motion was ever acted on. Because the sufficiency of the evidence was not properly questioned, and because there were issues of fact for the jury, we find no error on this point. Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986).
After the trial, the appellant filed a motion titled “Omnibus Motion For Post Judgment Relief.” This was a motion for judgment notwithstanding the verdict pursuant to Civil Procedure Rule 50(b) and was based on the assertion that the jury’s verdict was not supported by substantial evidence. Alternatively, the appellant sought a new trial because it alleged that the damages awarded were excessive, or a remittitur down to the balance owed by the Coles to the appellants, approximately $5,430.00. The trial court found that the jury could find that the Deason’s were damaged by the Bank’s allowing the Certificate of Deposit to be cashed and that a fact question was created as to whether Mr. Deason knew the true facts when he signed the mortgage release. Although the appellant does not argue on appeal that the motion for judgment notwithstanding the verdict should have been granted, we note that even in that motion, the waiver issue was not presented to the trial court.
On cross-appeal, the appellees argue that the trial court erred in ordering either a remittitur down to $10,000.00 from the jury verdict, or a new trial (the appellees accepted the remittitur). Generally, the rule is that, when a plaintiff elects to accept a reduction in his verdict after the trial court has found the verdict to be excessive, he is bound by that decision and may not appeal. See 4 Am. Jur. 2d, Appeal and Error § 245 (1962); see also Annotation, 16 ALR 3d 1327, Party’s Acceptance of Remittitur in Lower Court As Affecting His Right to Complain in Appellate Court As To Amount of Damages for Personal Injury. However, a plaintiff’s election to accept the trial court’s conditional order by consenting to remittitur does not bar the plaintiff from cross-appealing when the defendant appeals. Kroger Co. v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984); See Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).
Since the issue is properly raised on cross-appeal, we will decide it. The trial court held that there was no testimony which would justify the jury’s verdict for $12,500.00. The appellees attempt to justify the verdict by claiming that the jury was attempting to compensate them for the loss of use of the $10,000.00 certificate of deposit. The argument is speculative and we agree with the trial court that the verdict for $12,500.00 was not supported by substantial evidence.
We affirm on direct appeal and on the cross-appeal.
Affirmed.
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Pulaski County Circuit Court, First Division. Appellant, Frank Elmo Sparks II, appeals his conviction of operating a motorboat while intoxicated. We affirm.
A felony information was filed August 6, 1986, charging appellant with manslaughter, a violation of Arkansas Code Annotated § 5-10-104 (1987) (formerly Ark. Stat. Ann. § 41-1504 (Repl. 1977)) and driving a boat while intoxicated, a violation of Arkansas Code Annotated § 27-101 — 202(7) (1987) (formerly Ark. Stat. Ann. § 21-229(b) (Repl. 1968)). These charges resulted from a jet boat accident which occurred on the Little Maumelle River on May 9,1986, in which the passenger in the boat driven by appellant died from injuries sustained when the boat hit a tree. A jury trial was held May 4, 1987, wherein appellant was found not guilty of manslaughter and guilty as charged for driving a boat while intoxicated for which he was sentenced to ten (10) days in jail and a $500.00 fine.
As his only point for reversal, appellant asserts that the trial court erred in denying his motions for a directed verdict in that there was not sufficient evidence to support a conviction for driving a boat while intoxicated. We disagree.
Arkansas Code Annotated § 27-101 — 202(7) requires that:
No person shall operate any motorboat or vessel or manipulate any water skis, aquaplane, or similar device while intoxicated or under the influence of any narcotic drug, barbiturate, or marijuana or while under any physical or mental disability so as to be incapable of operating the motorboat or vessel safely under the prevailing circumstances.
In this case, the jury was instructed on the definition of “intoxication” as defined in Arkansas Code Annotated § 5-65-102 (1987) (formerly Ark. Stat. Ann. § 75-2502(a) (Supp. 1985)) as:
(1) “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians;
Appellant asserts that there was insufficient evidence presented at trial to establish that he was intoxicated. The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). On appeal in a criminal case, whether tried by a judge or jury, we will affirm if there is substantial evidence to support the finding of the trier of fact. Gullett v. State, 18 Ark. App. 97, 711 S.W.2d 836 (1986). Substantial evidence is that evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another; it must force the mind to pass beyond suspicion or conjecture. Jimenez v. State, 12 Ark. App. 315, 675 S.W.2d 853 (1984). The appellate court need only consider testimony lending support to the jury verdict and may disregard any testimony that could have been rejected by the jury on the basis of credibility. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).
At trial, appellant successfully objected to an instruction regarding the presumptions a jury may or may not make based upon the blood alcohol content in a person’s blood, urine, breath, or other bodily substance as set out in Arkansas Code Annotated § 5-65-206 (1987) (formerly Ark. Stat. Ann. § 75-1031.1 (Supp. 1985)). Appellant alleges that the presumptions do not apply since this is not a motor vehicle case. On appeal, appellant argues that, without these presumptions, the State should have produced an expert witness to explain the legal significance of appellant’s blood alcohol level to the jury. Appellant asserts that the blood alcohol content is meaningless without such testimony. We disagree. Expert testimony explaining the meaning of blood alcohol content is not required to prove intoxication. In fact, one may be convicted of driving while intoxicated without the use of a blood alcohol test. See, e.g., Whaley v. State, 11 Ark. App. 248, 669 S.W.2d 502 (1984).
Here, not only did the jury have the benefit of knowing that appellant’s blood alcohol content was 0.16% two and one-half hours after the accident, it was also presented with ample other evidence from which it could have concluded that appellant was guilty of driving his boat while intoxicated.
Although there was conflicting evidence in the case at bar, reviewing the evidence in the light most favorable to the State, we find substantial evidence to support the jury verdict. Appellant testified that he had a beer and a Chivas and water during lunch on the day of the accident. He testified that he sipped from the decedent’s glass of wine while going to check on his boat. Also, appellant admitted that he stopped at a liquor store on the way to the river and purchased two magnums of champagne for himself and the deceased. Further, appellant testified that he was drinking in the boat prior to the collision. There was evidence presented that after the collision, a Chivas bottle and cork which could have come from a champagne bottle were found in the boat, and an ice chest and other debris were floating in the water nearby. Evidence was presented that the area where the accident occurred is a narrow strip of the river containing many stumps and trees. The State presented an abundance of testimony from people who witnessed appellant’s behavior on the river prior to the accident.
Jack Harris, owner of the River Valley Marina, testified that appellant came through the “no wake” area at the Marina traveling approximately forty (40) miles per hour. Mr. Harris stated that appellant’s boat was in a plane and caused a substantial wake.
George Reeves was on his boat at the Little Maumelle River Marina when he heard a high speed boat approaching. His testimony reveals that appellant was driving the boat in an erratic manner by accelerating and then backing off the accelerator. Mr. Reeves further testified that appellant was driving at a high rate of speed in a wooded area causing a wake which created enough force to push his boat into the pilings at the marina.
William Durham was on his party barge on May 9,1986. He testified that appellant came around a curve toward him at a “terrific” rate of speed and veered the jet boat toward some cattle standing in the river causing them to flee to the shore. Mr. Durham testified that he yelled at appellant to slow down.
Willie Douglas was fishing on the Little Maumelle and heard a boat approaching. Mr. Douglas testified that appellant drove his boat toward him at “quite a bit of speed” but suddenly turned the boat in another direction. Moments later Mr. Douglas heard a “thud” when appellant’s boat struck the tree, and he then responded to appellant’s cry for help.
The paramedic who accompanied appellant to the hospital testified that appellant admitted he was drinking while driving the boat and struck the tree while driving approximately forty-five to sixty miles per hour.
In the case at bar, the evidence indicates that the jury could have utilized their common knowledge and experience to conclude that appellant’s reactions, motor skills and judgment were substantially altered so as to cause a clear and substantial danger of physical injury or death to himself and others. Ark. Code Ann. § 5-65-102.
We find substantial evidence in the record to support appellant’s conviction; therefore, we affirm.
Affirmed.
Cracraft and Coulson, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was convicted by a jury of theft by receiving, and after a finding that he was an habitual offender, he was sentenced to fifteen years in the Arkansas Department of Correction. On appeal he argues that the trial court erred in not granting his motion to suppress evidence he claims was seized pursuant to an invalid arrest and that the trial court should have also suppressed a statement he made after his allegedly invalid arrest. We affirm.
The appellant had been employed by Apache Van Lines. Apache reported to the Pine Bluff Police Department that several thefts had occurred when the appellant was working on moves. Sergeant Roy L. Ryan discovered that the appellant had pawned a man’s gold wedding band, later identified by the owner, which had been reported as stolen by Apache. Sergeant Ryan and Detective Mack Cook then went to the appellant’s home. Detective Cook testified that they did not have a warrant and that they went to the appellant’s house specifically to arrest him.
Detective Cook stated that they got to the appellant’s house at about 8:00 a.m. on May 9, 1986. Sergeant Ryan went to the back of the house and Detective Cook knocked on the front door. The door was answered by the appellant’s wife. According to Detective Cook, he identified himself as a police officer and asked if the appellant was there. Sergeant Ryan joined Detective Cook at the front door. Detective Cook stated that Mrs. Alexander invited them into the house and went to get the appellant.
When the appellant appeared in the living room, he was not dressed. Sergeant Ryan told the appellant that he was under arrest and told him to get dressed. The bedroom was next to the living room, and when the appellant went into the bedroom, Sergeant Ryan followed him and stood in the doorway. While waiting for the appellant to gather up his clothes, Sergeant Ryan noticed a pearl necklace in a clear plastic case on the dresser. Recalling that a similar necklace had also been reported as stolen, Sergeant Ryan seized the necklace. This necklace is the piece of evidence that the appellant argues should have been suppressed.
The fourth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Payton v. New York, 445 U.S. 573 (1980). However, here there was no forcible entry into the appellant’s home. Instead there was a consensual entry of the type that is not barred by Payton. Davis v. State, 27 5 Ark. 264, 630 S.W.2d 1 (1982). In Lamb v. State, 23 Ark. App. 115, 743 S.W.2d 399 (1988), the arrest was found to be invalid because the arrest warrant was not authorized by a judge. The State’s argument that the arrest was a valid warrantless arrest was found to be without merit because Lamb was arrested at his home and there was no evidence that anyone residing in the home consented to the entry by police officers. That is not the situation in the case at bar; the appellant’s wife consented to the entry. See United States v. Purham, 725 F.2d 450 (8th Cir. 1984). Because the necklace was seized pursuant to a valid warrantless arrest and was in plain view, it was proper for the trial court to refuse to suppress it.
Because the appellant’s arrest was valid, the incriminating statement that he made after his arrest is also admissible, and we find no error in trial court’s refusing to suppress it. Davis, supra.
Affirmed.
Coulson and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case appealed her municipal court conviction of second-offense DWI to the Circuit Court of Pulaski County. After a de novo bench trial she was again convicted of that offense. From that conviction, comes this appeal.
For reversal, the appellant contends that the trial court subjected her to double jeopardy by entering a judgment of conviction after finding her not guilty. We agree, and we reverse and dismiss.
The record shows that, at trial on March 20, 1987, the appellant moved to suppress the results of an intoxilyzer breath examination on the ground that she had not been continuously observed for twenty minutes before taking the test. The trial judge took the motion under advisement, the trial continued, and the City concluded its case. After the City rested, the appellant moved for acquittal on several grounds, including the intoxilyzer issue which was the subject of the earlier motion to suppress. The .trial judge requested briefs on that issue and ordered a continuance, stating that he would inform the attorneys of his decision by letter, and would notify them if the appellant’s presence would be required for further proceedings.
In a letter to counsel dated April 1, 1987, the trial judge granted the motion to suppress. The letter concluded with the following statements:
I hold the blood test to be inadmissible. In the absence of other evidence justifying finding the defendant guilty, Ms. Reaves is found not guilty.
An entry in the circuit court docket book reflected that the appellant was acquitted on April 1, 1987.
Before a judgment had been signed by the trial judge, the City discovered authority supporting its contention that the intoxilyzer results were in fact admissible, and filed a motion to reconsider the ruling on May 11,1987, the motion was granted, the appellant rested without presenting additional evidence, and she was found guilty and sentenced.
The appellant contends that the trial court’s letter finding her not guilty was an acquittal, and that the subsequent reopening of the case and conviction constituted double jeopardy. The appellee, however, contends that the conclusion expressed in the trial court’s letter should not be treated as an acquittal, but rather as a holding based on an evidentiary ruling which the City could have appealed under Ark. R. Crim. P. Rule 36.10(b). Thus, argues the appellee, there was no violation of the prohibition against double jeopardy because “the termination of the proceedings occurred as a result of the defendant’s actions on a collateral point not related to the factual determination of guilt or innocence.” It is clear that the parties agree that the crucial issue in this case is whether the finding in the trial court’s letter was an acquittal for double jeopardy purposes.
In United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), the United States Supreme Court said:
Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that “[a] verdict of acquittal. . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U.S. 662, 671 (1896). . . [W]e have emphasized that what constitutes an “acquittal” is not to be controlled by the form of the judge’s action. United States v. Sisson, supra, at270;cf. United States v. Wilson, 420 U.S., at 336. Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.
430 U.S. at 571 (emphasis supplied). Our determination of what constitutes an acquittal, for double jeopardy purposes, must be guided by the decisions of the United States Supreme Court. For example, in Smalis v. Pennsylvania, 476 U.S. 140 (1986), the Court held that the Pennsylvania trial court’s grant of a defendant’s demurrer at the close of the prosecution’s case was an acquittal under the double jeopardy clause of the United States Constitution. The Court rejected the Pennsylvania Supreme Court’s holding that a defendant who demurs at this point in the trial “elects to seek dismissal on grounds unrelated to his factual guilt or innocence,” and said that “what the demurring defendant seeks is a ruling that as a matter of law the State’s evidence is insufficient to establish his factual guilt.” 476 U.S. at 144. The appellant in Green v. United States, 355 U.S. 184 (1957), was tried for murder in a United States District Court for the District of Columbia. The jury was instructed that it could find him guilty of either first or second degree murder, and its verdict was silent on the charge of first degree murder. This verdict was accepted by the trial judge, the jury was dismissed, and the defendant was sentenced to imprisonment. The defendant’s conviction was reversed on appeal and the case was remanded for a new trial. On retrial, the defendant was found guilty of first degree murder. The United States Supreme Court held that his second trial for first degree murder placed him twice in jeopardy for the same offense in violation of the fifth amendment. The Court said:
In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: “We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.”
355 U.S. at 191.
In the case at bar, we think that the decisions of the United States Supreme Court require us to hold that the trial court’s letter finding the appellant not guilty was based upon a factual determination of the insufficiency of the evidence, and therefore constituted an acquittal for double jeopardy purposes. We need not address the correctness of the trial court’s initial ruling on the admissibility of the intoxilyzer results, because an acquittal bars further jeopardy even where the acquittal is based on an erroneous legal foundation. Sanabria v. United States, 437 U.S. 54 (1978).
Reversed and dismissed.
Jennings and Mayfield, JJ., agree. | [
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Sam Bird, Judge.
Farmers Insurance Company, Inc., appeals from a decision of the Crittenden County Circuit Court, which granted a partial summary judgment to appellee, Buddy Suiter, finding that appellant had a duty to defend appellee under a policy of homeowner’s insurance. We reverse.
On June 5, 1992, Vera Simonetti filed a complaint against appellee Suiter alleging that appellee had placed numerous anonymous telephone calls to her for the purpose of harassing, threatening, and frightening her, and seeking damages for causing humiliation, mental anguish, and emotional and physical distress. At the time of the alleged telephone calls, appellee was the insured under a policy of homeowner’s insurance issued by appellant. By virtue of that insurance policy, the appellant initially hired the Blytheville law firm of Reid, Burge, Prevallet & Coleman (hereinafter Reid law firm) to provide appellee with a defense to Simo-netti’s claims, but reserved the right to terminate its defense if it determined that, under the policy, no coverage existed to Simo-netti’s claims. Appellant later contended that, based upon the allegations of Simonetti’s complaint, no possibility of coverage existed for those claims and it had no duty to defend appellee against Simonetti’s claims or to pay any judgment that might be rendered against appellee. Thereafter, Reid law firm attempted to withdraw as attorneys for appellee, alleging that appellant had no duty to defend. The court at first entered an order that permitted the withdrawal, but it later set aside that order after learning that Simonetti had filed an amended complaint alleging that even though appellee’s conduct in making the telephone calls was intentional, appellee “may not have intended the results,” and that in the alternative, Simonetti’s damages were “negligently inflicted, should the jury find that they were not intentionally inflicted.”
On May 20, 1993, appellee filed a third-party complaint against appellant seeking to establish that his homeowner’s policy provided coverage for Simonetti’s claims and that appellant had a duty to defend him against those claims. Appellant denied that its policy imposed upon it a duty to provide either. On July 7, 1996, appellant filed a motion for summary judgment on the third-party complaint, arguing that based upon the definition of the word “occurrence” contained in the policy and the language of the policy stating that it provided no coverage for intentional acts, it had neither a duty to defend nor a duty to pay damages. Appellee responded that there were questions of fact as to whether the policy provided coverage, and he also filed a motion for partial summary judgment on the issue of appellant’s duty to defend. The court entered an order granting appellee’s motion for partial summary judgment and denying the appellant’s motion for summary judgment. The court severed the issues of the duty to defend and the duty to pay damages, ordering that appellant had a duty to provide a defense, but holding in abeyance the issue of appellant’s duty to pay damages until the resolution of Simonetti’s claim against appellee. The court ordered that appellee’s own personal attorney be paid by the appellant.
On October 14, 1995, a jury returned a verdict in favor of Simonetti and against appellee and awarded compensatory damages of $1,000 and punitive damages of $10,000. On November 18, 1996, the appellant renewed its motion for summary judgment, contending that there was no duty to pay damages in the amount of the judgment against appellee, and for reconsideration of the court’s order granting partial summary judgment in favor of appellee on the issue of whether appellant had a duty to defend. On April 28, 1997, the court granted the appellant’s summary judgment motion on the issue of duty to pay damages but denied the appellant’s motion for reconsideration of his previous order finding that appellant owed a duty to defend.
Appellant filed its notice of appeal from the April 28 order, alleging that the court erred in finding that the appellant had a duty to defend because the insurance policy did not cover intentional torts. Further, appellant contends that “This amendment to [the] complaint occurred after it was apparent there was no coverage and would be no defense and was clearly intended to attempt to trigger coverage.”
It is a well-settled rule that summary judgment is an extreme remedy and is only proper when the pleadings and proof show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981). The standard of review for appealing the grant of summary judgment is weh-established: this court need only decide if the granting of the summary judgment was appropriate based upon whether the evidentiary items presented by the moving party left a material question of fact unanswered. The moving party has the burden of sustaining the motion for summary judgment. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997). See also Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).
The general rule is that the pleadings against the insured determine the insurance company’s duty to defend. Madden v. Continental Cas. Co., 53 Ark. App. 250, 922 S.W.2d 731 (1996). The duty to defend is broader than the duty to pay damages, and the duty to defend arises if there is a possibility that the damage may fall within the policy coverage. Id. This court construes the language of an insurance policy in its clear, ordinary, and popular sense. Tri-State Ins. Co. v. Sing, 41 Ark. App. 142, 850 S.W.2d 6 (1993).
Simonetti first alleged that the appellee intentionally made harassing phone calls with the intent to cause her to suffer humiliation, mental anguish, and emotional and physical distress. Further, she alleged “such calls were made with knowledge that Simonetti would become emotionally and physically distressed and with the intent to harass, disturb, annoy, and molest Simonetti. Such calls were made with a wanton and reckless disregard of the consequences to Simonetti.” She later amended her complaint to state that appellee intended to make the calls but may not have intended the results that the calls produced.
The language of the policy in question reads: “We shall pay all damages from an occurrence which the insured is legally liable to pay because of bodily injury or property damage covered by this policy.” Occurrence is defined in the policy as “a sudden event, including repeated or continuous exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured.”
This issue has been presented to the courts before; however, the factual basis has been different. In Talley v. MFA Mutual Ins. Co., supra, three teenagers were attending a party when a fight ensued. One of the teenagers, who had been drinking, left the party and procured a shotgun. Fie came back and shot out the windows of one of the cars in the driveway. Then he drove around the block, and during that time, the two other teenagers came outside and hid behind the cars. The teenager with the shotgun fired again, hitting the others, but claiming that he did not know they were outside and, because it was at night, he could not see them hiding behind the cars. The supreme court held that the trial court erred in granting summary judgment because “a fact issue exists as to whether he intended to hit or injure [the-victims]. Many acts are intentional in one sense or another; however, unintentional results often flow from intentional acts.” Id. at 274, 620 S.W.2d at 263. The court distinguished unintentional acts from intentional acts and stated, “we see no violation of public policy in allowing recovery in circumstances in which it is shown that results were accidental or unintended.” Id. The court also held that the trial court had erred in granting summary judgment against the insureds, the parents of the teenager firing the shots, because the result of the act was not expected or intended when looked at from the standpoint of the insureds. Id.
In CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984), the court reversed a court of appeals decision that affirmed a ruling by the trial court that there was coverage under a homeowner’s insurance policy where even though the acts of sexual assaults and abuse inflicted by a man against his stepdaughter were intentional, the results of such abuse were not intentional. The court wrote that the test is “what a plain ordinary person would expect and intend to result from a mature man’s deliberately debauching his six-year-old stepdaughter and continuing to do so for years,” and concluded that “it flies in the face of all reason, common sense, and experience” for the perpetrator to claim that he did not intend by his actions to cause injury to the child. Id. at 93, 666 S.W.2d at 691.
Talley and McGinnis are clearly distinguishable from each other. In Talley v. MFA Mutual Ins. Co., supra, the supreme court upheld a trial court’s determination that there was a fact question as to whether the injury to the two teenagers was the unintentional result of an intentional act where the teenager firing the shots contended that he could not see that the victims were outside since it was dark and they were hiding behind the car. However, in CNA Ins. Co. v. McGinnis, supra, the insured clearly intended the results of his actions. He was cognizant of what he was doing and could not have reasonably believed that no harm would occur.
We find the case at bar to be controlled by CNA Ins. Co. v McGinnis, supra. The appellee in this case intentionally made numerous anonymous telephone calls to Simonetti. Like the supreme court in McGinnis, we find it hard to say that a plain ordinary person would not expect and intend both emotional and physical distress to result from a continuing barrage of harassing telephone calls. For the appellee to declare that he did not intend to cause injury “flies in the face of all reason, common sense and experience.” CNA Ins. Co. v. McGinnis, supra. Therefore, we find that the trial court erred in granting appellee’s motion for summary judgment and in denying appellant’s motion for summary judgment. We reverse and order the trial court to enter an order consistent with this opinion.
Reversed.
Meads and Roaf, JJ., agree.
Because of the obvious conflict of interest created for the Reid law firm as a result of the filing of this third-party complaint, the court allowed Reid law firm to withdraw as attorneys of record for appellee without prejudice to appellee’s claims that appellant owed him a defense and the duty to pay damages under his homeowner’s policy. | [
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Olly Neal, Judge.
This one-brief case involves a petition for paternity and child support brought by the appellant in 1992. After he failed to appear at the paternity hearing, the appellee was found to be father of the child, had a judgment for past support entered against him and was ordered to pay future support. Subsequently, a judgment for arrearage was entered against him. A DNA test was ordered on March 18, 1996, and based upon the results, the trial court entered an order that had the effect of excluding Mr. Mitchell as the father of the child. The chancellor vacated the judgment of paternity on equitable grounds and laches, equitable estoppel and for fraud practiced by the mother in obtaining the judgment. All orders predicated upon the original finding of paternity were deemed unenforceable. On appeal, the appellant, to which the mother assigned her support rights, argues that the chancellor had no authority to invalidate the original order of paternity because the appellee failed to present sufficient proof that the child’s mother practiced extrinsic fraud upon the trial court in procuring the judgment. We agree that the appellee failed to present sufficient proof on the fraud question.
On September 21, 1992, the Arkansas Human Services Department, on behalf of Cheryl Mauldin filed a petition for paternity and child support in which it alleged that appellee was the father of Ms. Mauldin’s minor child born May 26, 1992. The appellant requested both a “prospective and retrospective” order for support, lying-in expenses, and that appellee be required to reimburse the State for its expenditures and attorney’s fees. On March 15, 1993, after appellee failed to appear for the January 25, 1993, hearing, the chancellor entered a judgment of paternity by default, and ordered $25 per week withheld from Mr. Mitchell’s wages and twenty-five percent withheld from any unemployment compensation to which he was entitled. The chancellor also directed the bureau of vital statistics to “correct” the child’s birth certificate to reflect that appellant was the child’s father.
Upon the State’s motion, the chancellor entered an order on February 24, 1994, directing Mr. Mitchell to appear on April 25, 1994, and show cause why he should not be held in contempt for failure to comply with the existing order of support. Mr. Mitchell failed to appear for the show-cause hearing, and the chancellor found him to be in contempt of court, remanded him to the cus tody of the county sheriff, entered a judgment affirming the previous support order, and granted the appellant an additional judgment in the amount of $1,308 plus $200 as costs. The order of contempt also directed the parties to submit to paternity testing, and ordered Mr. Mitchell to prepay for the necessary testing.
Appellant filed a second motion for citation on February 9, 1996, requesting that appellee be held in contempt for failure to pay $1,975 accrued arrearages, and that he be detained in the county jail. The parties later reached an agreement which was honored by the chancellor, who entered an order on March 29, 1996, requiring appellee to pay $200 for his release. Mr. Mitchell submitted to the paternity test on June 10, 1996, and was excluded as the father of Ms. Mauldin’s minor child. The chancellor relied on the test results in his order of August 28, 1996, in which he reversed the finding of paternity.
Mr. Mitchell was again summoned to court on November 8, 1996, after the State filed its third petition for citation against him, this time alleging that he failed to pay the support that accrued between May 10, 1994, and September 6, 1996. The chancellor entered the final decree from which this appeal is taken on February 24, 1997. The court acknowledged the prior judgment of $5,739, but found that at least $2,375 of the accrued arrearages should not be collectable.
For its first argument, appellant correctly contends that the chancellor erred in setting aside the judgment of paternity for fraud practiced on the court in obtaining the judgment. A court may not set aside a judgment after ninety days unless there was some fraud extrinsic to the questions presented for decision, such as where a party is kept away from trial or when a party is corruptly betrayed by his own attorney. Tanbal v. Hall, 317 Ark. 506, 878 S.W.2d 724 (1994). Here, the only “fraud” was the mother’s failure to state in her affidavit that appellee was not the only possible father of the child. Although this was arguably a fraudulent instrument or perjured evidence, it is not extrinsic to the questions decided and does not constitute ground for setting aside the judgment after ninety days.
Appellant next contends that the chancellor erred in denying its request for a judgment of child-support arrearages on the basis of the equitable defenses raised by appellee. It argues that equitable defenses are inapplicable under Ark. Code Ann. § 9-14-234 (Supp. 1995), which provides that:
(b) Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court shall be final judgment subject to writ of garnishment or execution as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.
(c) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion.
However, it has been held that, in a proper case, equitable defenses such as estoppel may apply so as to prevent the coEection of past-due child-support payments. Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993); Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993). These holdings have not been affected by State v. Phillippe, 323 Ark. 434, 914 S.W.2d 752 (1996), because Phillippe was decided on different grounds. The judgment in that case, had been fuUy executed by payment, no equitable defenses were raised and the appeEee therein never attempted to estop enforcement, but instead sought a refund of payments which had already been made.
Although the chanceEor in the case at bar mentioned appeEee’s equitable defenses in his order, we are reluctant to affirm on that basis because it is clear from the record as a whole that the chanceEor believed that the fact that appeEee was not the chEd’s father was itself outcome determinative. This is evinced by the chanceEor’s refusal to permit appeEant to elicit testimony bearing directly on the equities, such as appeEee’s reasons for faEure to comply with court orders. Such matters bear heavüy on whether equity should intervene in a case such as this. See Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991).
Although we have the authority to decide chancery-cases de novo, we may remand where the record is not fully devel- • oped and additional evidence may be required to determine where the equities He. See Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994); McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991). In the case at bar, because the chancellor erroneously relied on Ark. R. Civ. P. 60 (C) (4), and failed to make the necessary findings to support his decision on purely equitable grounds, we think that justice would be better served by remanding the outstanding equitable issues to the chancellor, who may take such additional evidence as is necessary to resolve them.
Reversed and remanded.
Pittman, Griffen, Arey, and Stroud, JJ., agree.
Jennings, J., dissents.
The May 10, 1994, judgment provided that Mr. Mitchell could “purge himself of contempt of court” by paying all outstanding arrearages and the $200 costs and attorney’s fees to the county sheriff. It is unclear from the record when appellee was released from custody or whether he paid the sums stated in the order. | [
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John Mauzy Pittman, Judge.
The appellant, Hubert Ramage, was charged with possession of a controlled substance (cocaine) with intent to deliver. His pretrial motion to suppress evidence was denied. He then entered a conditional plea of guilty pursuant to Ark. R. Crim. P. 24.3(b). On appeal, he contends that the trial court erred in denying his motion to suppress. We affirm.
Officer Michael Coleman of the Pine Bluff Police Department testified that, at approximately 1:00 a.m. on July 10, 1996, he stopped the vehicle that appellant was driving because the license plate was not illuminated as required by law. Appellant was unable to produce a driver’s license, registration for the car, or proof of insurance. The officer also determined that the license plate was fictitious. When appellant went to the passenger side of the car to look in the glove compartment for a registration card and proof of insurance, the officer reached in the driver’s side window and lowered the sun visor in what he described as an “attempt[ ] to assist [appellant] in locating his registration.” A package of cigarettes and a matchbox fell from the visor to the seat. The officer picked up both items and inspected them “to see if there was anything out of the ordinary there.” Apparently, there was nothing unusual about the cigarette package. The officer then shook the matchbox to see if it sounded as though it contained matches. The officer testified that it sounded inconsistent with matches being inside, so he opened the matchbox. Inside, he found crack cocaine.
The trial court denied appellant’s motion to suppress evidence of the cocaine on two grounds: (1) that the officer legally could help appellant look for his papers, the matchbox lawfully came into plain view, and, once the officer’s training and experience told him that the box did not contain matches, he had probable cause to open it; and (2) alternatively, that the evidence would have been inevitably discovered as the result of an inventory anyway, as the officer testified that, without a driver’s license and the necessary paperwork, he would not have allowed appellant to leave in the car but would have impounded it and inventoried its contents. Appellant attacks both of these grounds on appeal. He does not contest the legality of the initial traffic stop.
The State first contends that we should affirm without reaching the merits of appellant’s arguments because appellant failed in his burden of establishing that he had any standing to contest the search. We agree.
Fourth Amendment rights against unreasonable searches and seizures are personal in nature. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997). The pertinent inquiry regarding standing to challenge a search is whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recog nize that expectation as reasonable. McCoy v. State, supra; Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). It is well settled that the defendant, as the proponent of a motion to suppress, bears the burden of establishing that his Fourth Amendment rights have been violated. McCoy v. State, supra; Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). A person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by the search of a third person’s premises or property. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992); Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). A defendant has no standing to question the search of a vehicle unless he can show that he owns the vehicle or that he gained possession of it from the owner or someone else who had authority to grant possession. McCoy v. State, supra; Littlepage v. State, supra; State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). One is not entitled to automatic standing simply because he is present in the area or on the premises searched or because an element of the offense with which he is charged is possession of the thing discovered in the search. United States v. Salvucci, 448 U.S. 83 (1980); see Rakas v. Illinois, 439 U.S. 128 (1978). This court will not reach the constitutionality of a search where the defendant has faded to show that he had a reasonable expectation of privacy in the object of the search. McCoy v. State, supra; Rankin v. State, supra.
Here, the record contains no evidence on which one could base a finding that appellant had standing to contest the search. Appellant presented no proof whatsoever that he had a legitimate expectation of privacy in either the vehicle or the matchbox that fell from the sun visor. Appellant did not testify at the suppression hearing and assert the proprietary or possessory interest necessary to establish standing, although he could have done so without danger of self-incrimination. See Brown v. United States, 411 U.S. 223 (1973); Simmons v. United States, 390 U.S. 377 (1968); Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986). The only witness who testified at the suppression hearing was Officer Coleman, and his testimony demonstrated only that the vehicle bore a fictitious license plate and that appellant could not produce a driver’s license, registration, or proof of insurance for the vehicle. No evidence was offered that appellant either owned or lawfully possessed the vehicle. Nor did appellant ever assert ownership of or a right to possess the matchbox that was found above the sun visor. Because appellant failed to prove lawful possession of the objects of the search, we conclude that he failed in his burden of establishing standing to challenge the search. Therefore, we do not reach the merits of his arguments on appeal. See McCoy v. State, supra.
Affirmed.
Arey, Jennings, and Stroud, JJ., agree.
Neal and Griffen, JJ., dissent.
The dissent contends that, because the State argues appellant’s lack of standing for the first time on appeal, the issue cannot be considered by this court. The three cases cited for that proposition are Arkansas Game & Fish Commission v. Murders, 327 Ark. 426, 938 S.W.2d 854 (1997); Pulaski County v. Carriage Creek Improvement District No. 639, 319 Ark. 12, 888 S.W.2d 652 (1994); and State v. Houpt, 302 Ark. 188, 788 S.W.2d 239 (1990). In each of those cases, however, the appellant raised the appellee’s lack of standing for the first time on appeal in an effort to obtain a reversal. The supreme court held only that lack of standing is not a jurisdictional defect of the sort that will allow an appellant to make an argument for reversal for the first time on appeal. In none of those cases did the court do any violence to the longstanding rule that we may affirm the result reached by the trial court, if correct, even though the reason given by the trial court may have been wrong. See Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987) (trial court’s decision affirmed although the decision should have been based on a different reason, which was not argued by the appellee in the trial court); Garcia v. State, 18 Ark. App. 110, 711 S.W.2d 176 (1986) (trial court’s decision affirmed, albeit for a reason neither relied upon by the trial court nor argued below by the appellee).
The dissent also incorrectly states that the issue of standing was argued to and clearly addressed by the trial court in each of the cases cited in the text of this majority opinion. In fact, the opinions in Dixon v. State, supra; McCoy v. State, supra; Littlepage v. State, supra; and Davasher v. State, supra, do not state that the State argued the issue in the trial court, much less that the trial court ruled on the question. Nevertheless, in each case, the supreme court affirmed the denial of the motion to suppress because the appellant had failed to establish his standing to raise a Fourth Amendment challenge in the first place. In fact, the opinions in McCoy and Littlepage state specifically that the trial court denied the appellants’ motions on the merits of their Fourth Amendment arguments, and indicate only that the State argued on appeal the appellants’ failure to establish standing. See also Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990) (trial court denied motion to suppress because it found challenged search consensual, but supreme court affirmed because appellant failed to establish standing; no indication of what State argued either below or on appeal); Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980) (trial court’s denial of motion to suppress, which was based on merits of the challenge, was affirmed by court of appeals on account of appellants’ lack of standing, “a matter not discussed in the parties’ briefs”). | [
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Judith Rogers, Judge.
Appealing from an order denying his motion for a change of custody, appellant contends that the chancellor’s decision is clearly against the preponderance of the evidence. We disagree and affirm.
Appellant, Jimmy Hepp, and appellee Debbie Byrum, were divorced in September of 1991 when their daughter, Cassandra, was twenty months old. Custody of the child was contested, and the court placed her in the care of appellee. Appellant later petitioned for a change of custody. By order of December 11, 1995, the chancellor denied that petition. The order provided, however, that a change of custody would be forthcoming if appellee associated with or had the child in the presence of a man named Johnny Lee Boggs. The appellant filed another petition for a change of custody in March of 1997. As grounds for this motion, appellant alleged that appellee had constantly been with Mr. Boggs, that she was drinking excessively, and that she was failing to properly care for the child. After a hearing on May 28, 1997, the chancellor denied the motion. This appeal followed.
In deciding this case, we are guided by the following principles. As in all custody cases, the primary consideration is the welfare and best interest of the child involved; all other considerations are secondary. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989). It is well settled that, although this court reviews chancery cases de novo on the record, the chancellor’s findings will not be disturbed unless clearly against the preponderance of the evidence. Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990). Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the superior position of the chancellor, especially so in those cases involving custody. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). Repeatedly our courts have recognized that there are no cases in which the superior position, ability, and unique opportunity to view the parties carry as great a weight as those involving minor children. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).
The first witness called by appellant was Rigmor Mereness, appellee’s supervisor at the health department in Russellville. She testified that appellee worked for $5 an hour as a health-care aide who provides services to persons in their homes. She said that appellee had a good record of service and that she had heard of no complaints having been registered against her by her clients. She stated that appellee had asked for additional hours of work but that none were available.
The child, Cassandra, age seven and in the first grade, responded to questioning as follows. She said that she fives in a trailer with her mother and that she likes it. She testified that she sleeps with her mother and that she sleeps on a pallet on the floor when her mother is sick. Cassandra said that her Aunt Joyce had lived in the trailer for three weeks and that her half-sister, Nakita, also lived there. She said that her mother gets her up in the mornings for school and that she would either eat breakfast at home or at school. She said that she usually ate breakfast at school bfecause her mother gets up too early. Cassandra testified that she preferred to live with her father in that she felt safer with him because he does not leave her alone like her mother does. She said that her mother drinks beer once a week. She stated that being drunk means acting screwed up or weird and said that her mother did not get drunk every week, but that she was once drunk for two weeks. She said that she stays away from her mother when she is drinking because her mother might get rowdy. She also said that her mother has friends over when she is drinking and that they fight. She said that her mother fought with Nakita’s dad and Brent, but she corrected herself to say that Brent was Nakita’s father. When asked about Uncle Terry being one of those friends, she had no response. When prompted, Cassandra said that she liked it when Uncle Terry came over but that she was scared when he drinks. She testified that marijuana was something that you smoke and that her mother smokes marijuana in front of her. She said that her mother had done that only one time, that she had never done it recently, and that her mother had smoked marijuana two weeks ago. She testified that her mother rolled it up in a little box of paper, licked it, and used “plier things” to smoke it. Cassandra was asked to demonstrate this process for the chancellor but the record does not reflect what the demonstration entailed. She said that her mother acts strange when she smokes marijuana. She said that she is never scared when she is with her father and that she sees him one time a week. She said that she had seen her mother so drunk that she could not stand up and that it scared her. She said that her father helps her with her homework and that he gives her $2 when she makes good grades. She said that she sleeps in her own bed when she is with her father. She said that her father picks her up from school, that he buys clothes for her a lot, and that she goes to him when she needs something. She stated that she spends the night sometimes with her mother’s boyfriend, Thomas, who fives in a shed. She said that she sleeps on a pallet when he and her mother are together and that they drink and smoke marijuana.
On cross-examination, Cassandra testified that the only reason she could think of for wanting to five with her father was because he makes her feel safe because he does not leave her alone. She said that her mother leaves her alone for three or four minutes when she goes to the grocery store. She said that her mother tells her and Nakita to lock the door and stay inside while she is gone. She said that her mother had not left her alone any other time. She related that she spends one day a week with her father, on Sundays, and that she spends weekends at her grandparent’s home. She said that her father had worked at Tile Stiles for twelve years and that she had seen Johnny Boggs there, who had come to see her grandfather. She said that Boggs was a friend of her father’s family now and that she likes him. She further testified that she had seen Boggs beat her mother and that she had seen her grandfather pay him money one or two times, but that he did not work at Tile Stiles. She said she was excited about her father’s apartment that he had had for one day, and she agreed that it had a nice swimming pool. Cassandra testified that after school she had playtime, cartoontime, then bathtime and bedtime. She said that her mother had snacks for her after school and that her mother either cooked every night or got something for dinner, like pizza. She said that she makes good grades in school, all A’s. She testified that her sister had a bedroom in the trailer and that she had a room of her own that was now a playroom. She said that she does not sleep there because it is full of toys. She also said that she slept with her grandmother on weekends. She said that there was another bedroom but that it had all of her grandmother’s “grave stuff” in it, saying that it had belonged to an uncle who had died when she was three years old. She testified that she had seen her mother drunk one time since they had moved into the trailer and that her mother had once been drunk for two weeks. She said that her father helped her with her homework but that he did not come over on school nights. She said he helped her with her spelling words on Sundays. She said that her father picks her up from school every Friday, but that sometimes her grandparents picked her up. She said that her grandmother had been picking her up for a long time and that her father had picked her up three times.
On redirect examination, she testified that she had seen Mr. Boggs three times at the tile business and that she had seen her mother drinking not many times, or three or four times.
Johnny Lee Boggs then testified on behalf of the appellant. Boggs stated that he was disabled from a back injury that had resulted from a car accident in 1975 and that he had been receiving disability benefits since July of 1996. He testified that he had met appellee in 1991, that they had dated and had once been engaged. He said that he was aware of the December 1995 order which forbade him from associating with appellee. He testified that appellee did not stay away from him. He said that they began seeing each other on the sly in February of 1996 and that their relationship continued until April of 1997. He said that appellee had been drinking consistently since 1991, that she drank most every weekend that they were together, and that, as far as he knew, she did not attend AA meetings. Boggs testified that he took his ring back from appellee in April because of an incident that had occurred on March 6. He said that appellee came to his home that Thursday, got drunk, and remained that way for two and a half days. Boggs stated that appellee was so drunk that night that she could not speak and that he was afraid that she might die. He said that he tried to get her to check on the children and that he finally got her to do so at around 11:30 that night. He drove her to the trailer, and they found that the children were not there. He said that she left his house on Saturday and that Cassandra was with her grandparents over the weekend, while Nakita stayed with appellee’s sister. Boggs further testified that appellee would visit him during the week and would sometimes get off work by telling her employer that one of the children was sick. He said that appellee fought once with Brent Keeling who was staying with her because none of his family would have him. Boggs stated that appellee felt that the child’s homework was part of the teacher’s job.
When cross-examined, Boggs said that he did not work at Tile Stiles and denied having been paid for his testimony. He said that he had no idea what the previous custody hearing was about, and he said that he did not remember beating appellee in front of the child. He testified that he did not know what the previous court order said. Boggs denied that he had tried to get appellee to come back to him or that he had asked a preacher to speak to appellee about it because he was contemplating suicide. He testi- fled that he drank alcohol off and on, that he was not a heroin addict, but that he was a convicted felon. He said that he had not seen Cassandra since December of 1995, but then he said that he had seen her by accident at the appellant’s shop where he had gone to check on the price of tile and the cost of laying it. He denied having followed appellee’s fiance around and said that he had left notes on appellee’s door because she did not have a phone.
Appellant testified that he had been living at the Shadow Lakes Apartments for a month and that before that he had been living with his grandmother and uncle in Casa, Arkansas. He explained that his grandmother was older and needed help and that he and his uncle got groceries for her and took her to doctor’s appointments. He said that he was self-employed and owned a business called Tile Stiles with his parents and brothers and that they had been in business for twelve years. He works eight to ten, or twelve hours a day, four to six days a week. Appellant testified that appellee had agreed to let Cassandra visit nearly every weekend, rather than every other weekend as provided in the latest order, and that he usually has her more than the six-week period ordered in the summer. He said that appellee sees Cassandra three or four times during the summer. He testified that, because of his work schedule, his mother picks Cassandra up from school on Fridays and that he sometimes allows her to spend Friday evenings with his parents, picking her up on Saturday after work. He said that appellee had reduced his visitation to every other weekend since the fifing of his motion for a change of custody and that appellee had instructed Cassandra’s teachers to refuse him access to the child. Appellant testified that he and Cassandra watch videos, play video games or fish on the weekends. He helps her with her homework and checks on her progress at school. Appellant stated that Cassandra was intelligent but that he had learned that she was doing poorly in spelling and that with his help her grade had improved. As a reward for good grades, he gives her money or treats her to pizza. He said that he paid child support and provided health insurance for Cassandra and that he buys her school clothes and gifts at Christmas and on her birthday. Appellant testified that he filed the petition because he can take better care of Cassandra. He said that appellee had problems with alcohol and substance abuse and that she was sick and needed help. He added that he would approve of appellee having liberal visitation and that he would not keep the child from her.
Appellant denied on cross-examination that he had been accused of fondling a minor child, but he also stated that he had been accused of molesting his step-daughter. He said that the allegation was not true, and he denied telling appellee that it was. He testified that his first wife was fourteen years old when they married, while he was age twenty-four. He said that he had joined the military as a young man and had received a dishonorable discharge. He testified that he had been arrested in 1990 for being absent from the reserves without leave and that he had spent some time in the brig. He admitted that he had pulled a gun on a police officer when he was in high school. Appellant further testified that he had once hit appellee during the marriage, but that he had done so only after she had struck him four times. He said that he did not ask appellee to get an abortion and denied that he had beaten her when she refused. Appellant agreed that one could say that he ran out and got the apartment for purposes of the hearing, and he said that he had told Cassandra about the apartment and the swimming pool after he rented it. He said that he has picked the child up once for visitation since 1995 and that he had never been the one to return her to appellee. He stated that the child spends quite a bit of time with his parents. Appellant thought that appellee allowed more visitation to both foster good relations and to be able to do things on the weekends. Appellant was shown photographs taken by appellee of his parents’ home. Although appellant has failed to include these photographs in his abstract, they reveal a yard that is overgrown with weeds and brush with old vehicles, appliances, and trash scattered about. The photographs of the interior show a home that is filthy and in utter disarray. Appellant testified that the photos were a fair representation of the outside of the house, but he said that the inside was not normally that messy.
In her testimony, appellee stated that she had been an admitted alcoholic since 1990. She said that she rarely has a problem with it because she stays with AA pretty strictly, attending meet ings once or twice a week. She admitted that she had one relapse in March of 1997. She testified that she was driving to work when the clutch on her car went out and that she went to Boggs’s home because it was nearby. She said that he was drinking and that she started drinking. She explained that she was upset because she had recently spent a lot of money having her car repaired. Appellee testified that she does not remember much about that day after twelve or one o’clock in the afternoon, saying that she blacks out when she drinks. She said that she spent the next day recuperating because drinking makes her very sick. She stated that she contacted her sister on Friday to see if her fiance, Thomas Johnston, was angry and to make sure that the children had gotten off to school. Appellee testified that she knew that the children would be cared for by Johnston because he had planned to come over that Thursday afternoon. She said that she and Johnston had been dating since December of 1995 and that they had become engaged in December of 1996. With regard to Boggs, she stated that he contacted her after December of 1995 because he needed a witness for his disability case since his family would not help him. She went with him to Little Rock to consult with an attorney and attended the disability hearing. She said that Boggs had always worked and was unfamiliar with the benefits he could draw and that she helped him obtain food stamps. She said that she was afraid of Boggs and did not want to make him mad because in the past he had been physically violent with her, had threatened to kill her, had held knives to her throat, and had vandalized her apartment and damaged her car. She said that she was familiar with the previous court order and thought that it meant that Boggs was to have no contact with Cassandra since the Hepp family had alleged that Boggs had beaten the child. Appellee further testified that she lived in a three-bedroom, two-bath mobile home with her two children. She said that Cassandra had a bedroom but that Cassandra insists on sleeping with her because she is afraid to sleep alone. She said that the child does not sleep on the floor. She testified that the children get home from school at 3:30 p.m. and that they play, eat supper, do their homework, take a bath and then go to bed. She said that they were occasionally left alone in the afternoon if she works until 3:00 or 3:30 p.m. and that she has instructed them to stay inside with the doors locked. She said that the children might also be left alone when she goes to the market three miles away. Appellee stated that, in addition to her income from work, she receives food stamps and draws a social security check for Nakita on account of her father’s disability. She said that she had no trouble paying her bills or providing food and clothing for the children. Appellee testified that appellant would not make a good parent because he has never been responsible. She said that appellant had not wanted the child and had told her to get an abortion to correct his mistake. She said that whenever she sees the child or calls during appellant’s visitation that she is with his parents. She stated that appellant had never picked up or returned the child from visitation before filing the petition, but that he had since done so two weeks ago and when the child left for summer visitation.
When she was examined by appellant’s counsel, appellee stated that her sister-in-law Joyce was an alcoholic but she denied that Joyce was living with her. She testified that Brent Keeling, Nakita’s father, had mental problems and that he had stayed with them over the Christmas holidays and for several weeks in the summer. She denied that she smoked marijuana and said that she had drunk alcohol only that one time in March. She said that she had gone to Boggs’s home, despite her fear of him, because it was close and she had no car phone. She also admitted that in her deposition she had refused to provide the names of AA members so as to verify her attendance. She said that it was against the rules to divulge the identity of other members, including her sponsor. She testified that she had not taken Cassandra to the doctor since early 1994, but she acknowledged that the child had been sent home from school since then with enlarged tonsils. She testified that it had been discovered that the child had enlarged tonsils during an examination after a car accident, and that on the day in question Cassandra had no fever and was not complaining of a sore throat. Appellee testified that she worked twenty to twenty-five hours a week, that she had approximately $786 a month to spend, and that she saw no reason to work any harder or earn more money. She does not have a telephone, but she said that she had access to a neighbor’s phone in case of emergency. Appellee testified that her fiance lived in an efficiency-type apartment and admitted that she and the children had spent several nights there. She also admitted that she had entered the Hepp’s home to take the photographs that had been introduced during appellant’s testimony, but she testified that the door had been open and that she had always been permitted access to the home to use the telephone.
In his testimony, Thomas Johnston, appellee’s fiance, recalled the night that appellee became intoxicated. He said that it was their arrangement for him to come over every day after work and that he arrived that day at 4:00 p.m. The children were watching cartoons, and he stayed fifteen to twenty minutes before going to the home of appellee’s sister. He returned to the trailer because appellee was not at her sister’s and talked with a neighbor until 7:30 p.m. He took the girls to Sonic for dinner and to his home for the night, where they watched a movie, bathed, and went to bed. Johnston testified that he had been dating appellee since December of 1995 and had become engaged to her a year later. Their wedding was scheduled in June. He said that he had never seen appellee drunk and that what occurred in March had never happened again. Johnston said that appellee was a good mother. He testified that she helps them with their homework, that they always have family time, and that the children bathe and go to bed at the same time every night. He said that he had never spent the night in the trader while the children were present, but that appel-lee and the children had spent several nights at his home.
After hearing the testimony, the chancellor ruled as follows:
Well, gentlemen, since I’m obviously familiar with this case, since the 28th day of March of 1991,1 have had several hearings in this matter. I’m going to find that there is an insufficient change of circumstances to change the custody in this case. And I might add that with the exception of the child’s testimony, who I don’t believe has testified before, there was absolutely no change in the testimony. It’s essentially the same that I’ve heard for at least two times.
It is the appellant’s argument on appeal that appellee is an unfit mother based on testimony revealing that she has abused alcohol and marijuana and that she acted irresponsibly during the admitted drinking binge in March of 1997. Appellant contends that the child’s testimony describing appellee’s actions was more credible than that of appellee, who was lying and not a person to be believed. We find no merit in this argument.
The chancellor in this case was well acquainted with the parties after having presided over two previous hearings concerning custody of the child. It is clear from the record that appellee’s alcoholism was not a new development in the case. Despite appellant’s argument, the chancellor was in a better position to gauge the worth of appellee’s testimony, and he was entitled to believe her testimony that what occurred in March of 1997 was an isolated incident, that she was not presendy drinking, and that she was receiving help and support for her problem by regular attendance at AA meetings. The chancellor was also entitled to believe appellee’s denial that she used marijuana. Thus, the chancellor could find that the child was not at risk in appellee’s custody. In making that determination, the chancellor could also consider the testimony that the child was well cared for and was doing well in school, and he could conclude that the child had suffered no ill-effects from being in appellee’s custody for over five years. Also, while a child’s preference is certainly to be considered, it is not binding on the court. Marler v. Binkley, 29 Ark. App. 73, 715 S.W.2d 218 (1989). Here, the testimony of the seven-year-old child was for the most part the result of leading questions and was laden with inconsistencies. We note that appellee argued with some force at the hearing that the child’s testimony was influenced by appellant and his parents. We thus cannot fault the chancellor for not giving her testimony a full measure of credence. We must also observe that appellant’s character was not without blemish and that there was some suggestion in the record that the child has spent more time with his parents than she has with him during visitation. Nevertheless, the grandparents did not testify at the hearing, even though they had filed a motion to intervene seeking their own visitation with the child. The chancellor denied that petition.
This court has stated numerous times that a material change in circumstances affecting the best interests of the child must be shown before a court may modify an order regarding child custody, and the party seeking modification has the burden of showing such a change in circumstances. Harrington v. Harrington, 55 Ark. App. 22, 928 S.W.2d 806 (1996); Fitzpatrick v. Fitzpatrick, supra. Our reasons for requiring more stringent standards for modification than for initial determinations of custody are to promote stability and continuity in the life of a child, and to discourage repeated litigation of the same issues. Jones v. Jones, 328 Ark. 97, 940 S.W.2d 886 (1997). As was observed by the court in Holt v. Taylor, 242 Ark. 292, 413 S.W.2d 52 (1967):
For a court to choose, in a custody case, between the mother and the father, the respective personalities of the parents are vital. It is in this realm that personal observation is of inestimable value. As was stated in Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500 (1958): “We know of no type of case wherein the personal observation of the court mean more than in a child custody case.” The chancellor’s experience with these parents began in late 1962. In the succeeding years he entered at least ten orders touching on matters of divorce, child custody, and support money. These experiences afforded the chancellor opportunities to reach wise conclusions respecting the moral fiber of these parents. We are certainly justified in assuming that the chancellor’s knowledge which he gained from the initial divorce proceedings, together with his four years’ experience with these people, supports his conclusions with respect to custody. In cases of this nature, particular weight is given to the findings of the chancellor, Cheek v. Cheek, 232 Ark. 1, 334 S.W.2d 669 (1960).
Id. at 296, 413 S.W.2d at 54. Based on our review of this record, we refuse to substitute our judgment for that of the chancellor. It cannot be said that his decision is clearly against a preponderance of the evidence.
As for the concerns of the dissenting judges, proof of changed circumstances alone does not ordinarily justify a change in custody. In order for custody to be changed, there must not only be proof of a material change in circumstances, but that proof must also be accompanied by evidence that the change would be in the child’s best interest. Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990). In finding no material change in circumstances affecting the best interest of the child, the chancellor could conclude that appellee’s association with Boggs had no significant impact on the child, and he could consider that appellant and his family, but not appellee, had exposed the child to Boggs’s presence. With respect to overnight visits with appellee’s fiance, the chancellor could observe that this only occurred on several occasions and that the two were to be married in a few weeks. While our courts have never condoned a parent’s promiscuous conduct or lifestyle when conducted in the presence of the child, we have recognized the distinction between those human weaknesses and indiscretions which do not necessarily affect the welfare of the child, and that moral breakdown leading to promiscuity and depravity which does render one unfit to have custody of a minor child. Hoing v. Hoing, 28 Ark. App. 340, 775 S.W.2d 81 (1989).
Also, that appellee may have violated the court’s previous directives does not compel a change in custody. The fact that a party seeking to retain custody of a child has violated court orders is a factor to be taken into consideration, but it is not so conclusive as to require the court to act contrary to the best interest of the child. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975). To hold otherwise would permit the desire to punish a parent to override the paramount consideration in all custody cases, i.e., the welfare of the child involved. Id. Moreover, to ensure compliance with its orders, a chancellor has at his or her disposal the power of contempt. And, we have said that a court’s contempt powers should be used prior to the more drastic measure of changing custody, Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986), which is in keeping with the principle that custody is not to be changed merely to punish or reward a parent. Harvell v. Harvell, 36 Ark. App. 24, 820 S.W.2d 463 (1991).
Because it cannot be said that the chancellor’s decision is clearly erroneous, we can only conclude that the dissenting judges have succumbed to the temptation to reach down from the appellate bench to overturn a decision that is simply not to their own personal liking. However, our sworn duty is to determine, from the record, whether the decision is clearly against the preponderance of the evidence, giving great weight to the superior ability of the chancellor to assess the credibility of the witnesses with whom he is more intimately familiar. Prom that perspective, we deem it unwise to second-guess the chancellor’s decision that appellant failed to present sufficient proof of any material change in circum stances and that the child’s welfare was not jeopardized by remaining in the custody of appellee.
Pittman, Jennings, and Stroud, JJ., agree.
Robbins, C.J., and Crabtree, J., dissent. | [
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John Mauzy Pittman, Judge.
Appellant in this tort case was injured during an altercation at the appellee’s country-and-western bar and dancing club. She filed suit against the appellee alleging that her injuries resulted from appellee’s negligence in failing to provide adequate security personnel and failing to control a fight between some other patrons. After she presented her case, the appellee made a motion for directed verdict, which was granted by the trial court. From that decision, comes this appeal.
For reversal, appellant contends that the trial court erred in granting appellee’s motion for a directed verdict. We agree, and we reverse and remand.
In ruling on a motion for a directed verdict, the trial court must view the evidence that is most favorable to the non-moving party and give it its highest probative value, taking into account all reasonable inferences deducible from it. Carton v. Missouri Pacific Railroad Company, 303 Ark. 568, 798 S.W.2d 674 (1990). If the evidence is so insubstantial as to require that a jury verdict for the nonmoving party be set aside, then the motion should be granted. If, however, there is substantial evidence to support a jury verdict for the nonmoving party, then it should be denied. Id. Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id. To establish a prima facie case of negligence, a plaintiff must show that damages were sustained, that the defendant breached the standard of care, and that the defendant’s actions were the proximate cause of the damages. Union Pacific Railroad Company v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997).
Viewing the evidence, as we must, in the light most favorable to the appellant, the record shows that appellant and her date, Larry Neyland, were at Boot Scooters on June 4, 1994. A fight broke out while appellant was on the dance floor and Mr. Ney-land was seated at a table. Although the fight broke out at the other end of the building from Mr. Neyland’s table, it soon moved in his direction towards the exit. Mr. Neyland described the fight as “a herd of people” coming his way that “looked like a rugby match.” Mr. Neyland turned in his seat and backed up against the table as far as possible when the fight reached him. Three men, including at least two security men, were escorting another man to the door. They were beating him as they did so, including blows to his face with a flashlight. The security men were not controlling the man being ejected who, although bleeding profusely, began kicking Mr. Neyland. To defend himself, Mr. Neyland picked the man being ejected up by the collar and moved him to the door. The girlfriend of the man being ejected picked up a chair and attempted to hit Mr. Neyland with it. Appellant left the dance floor as she saw the fight approaching the table where Mr. Neyland was seated. As the fight passed her, she saw a woman trying to hit Mr. Neyland from behind with a chair. Appellant, who knew the woman, took the chair, put it down, and tried to calm the woman. Someone in the crowd then pushed appellant into the woman. Appellant fell, and someone in the crowd stepped on her ankle and broke it. Appellant suffered severe pain and was taken to the emergency room. She was hospitalized, underwent surgery, lost a significant amount of wages, and continues to feel the effects of her injury.
We think it clear that there was substantial evidence that appellant sustained damages. With regard to the standard of care owed by a drinking establishment to its patrons, our supreme court has stated that:
The weight of authority supports the view that while a tavern keeper or bar operator is not an insurer of the safety of his patrons, he is under the duty to use reasonable care and vigilance to protect guests or patrons from reasonably foreseeable injury, mistreatment or annoyance at the hands of other patrons. Negligence in such a situation may consist of failure to take appropriate action to eject persons of undesirable character from the premises or knowingly permitting irresponsible, vicious or drunken persons to be in and about the premises or failure to maintain order and sobriety in the establishment. Of course the proprietor is not required to protect the patrons of a bar or tavern from unlikely dangers, or improbable harm, but he is required to take affirmative action to maintain order when harm to patrons is reasonably foreseeable, and certainly whenever the circumstances are such as to indicate that the danger of harm to patrons by other patrons should have been anticipated by one reasonably alert.
Industrial Park Businessmen’s Club v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972). In the case at bar there was substantial evidence to show that the person being ejected from appellee’s establishment was beaten by appellee’s security personnel as they attempted to remove him, but that Mr. Neyland was able to remove him from the establishment with little trouble simply by restraining him. The beating administered to the person being removed by the security men was in contravention of appellee’s instructions to its security employees, which allowed the use of physical force only in self-defense and only to restrain the attacker. Appellee’s instructions further require security personnel to calm down any disturbance as quickly and quietly as possible. We think that reasonable minds could conclude on this record that appellee’s security personnel not only failed to calm down this disturbance, but in fact exacerbated it through use of excessive force. We hold that there was substantial evidence to show that appellee breached its duty to use reasonable care to protect its patrons.
Finally, we think that there was substantial evidence to show that appellee’s failure to use reasonable care was the proximate cause of appellant’s damages. Appellant testified that she was knocked down and stepped on by persons following in the wake of the disturbance, which Mr. Neyland described as a “herd of people.” Although it is true that appellant did not know who knocked her down or stepped on her or whether these persons were employees of appellee, that is not fatal to her claim. While the intervention of an independent agency ordinarily relieves the first wrongdoer of liability, the original wrongdoer will not be relieved of liability if the result or act of the independent agent could have been anticipated. Southwestern Bell Telephone Company v. Adams, 199 Ark. 254, 133 S.W.2d 867 (1939). As Justice Leñar wrote in Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797 (1949):
[A] wholly independent intervening act could be held to be the sole proximate cause of resultant injuries. If on the other hand the intervening act be one the likelihood of which was definitely increased by the defendant’s act, or one which in fact was caused by the defendant’s act, it is not a superseding proximate cause of injuries incurred by reason of it. “An intervening act of a human being . . . which is a normal response to the stimulus of a situation created by the actor’s negligent conduct is not a superseding cause of harm to another which the actor’s conduct is a substantial factor in bringing about.” Restatement, Torts, 443. “The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about if, (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.” Restatement, Torts, 447. Compare Green, Rationale of Proximate Cause (1927), with Beale, The Proximate Consequences of an Act (1920), 33 Harvard L. Rev. 633. And see Prosser, Torts (1941) 352.
We think reasonable persons, on this evidence, could properly conclude that appellee should have anticipated that the method employed to eject the disorderly patron could cause other patrons to be trampled by the crowd, and that appellee’s negligence definitely increased the likelihood of such an occurrence.
Reversed and remanded.
Neal, Arey, Jennings, and Stroud, JJ., agree.
Griffen, J., dissents.
We certified this case to the Arkansas Supreme Court pursuant to Ark. Sup. Ct. R. l-2(a)(15) as one presenting a question about the law of torts. The supreme court declined to accept jurisdiction and remanded the case to this court for decision. | [
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David M. Glover, Judge.
In this case, appellant, Mark Banks, as administrator of the estate of Dayna Banks, deceased, appeals from two orders, the August 22,2007 order denying his claim against the Landry estate and the October 4, 2007 order denying his motion to alter or amend the judgment of the trial court. We reverse and remand.
Background
The facts are essentially undisputed. On June 23, 2005, five persons were killed in an airplane crash. Among them were Dr. Robert J. Landry and Dayna Banks. Appellee, Robert J. Landry, Jr., was appointed administrator of his father’s estate. He published the requisite notice to heirs and creditors on July 11, 2005.
On January 9, 2006, appellant filed an affidavit (“the claim”) to claim against the Landry estate. It provided:
I, Mark Banks, Administrator of the Estate of Dayna Banks, Deceased, do swear that the claim against the estate of Robert Landry, deceased, is correct, that nothing has been paid or delivered toward the satisfaction of the claim except as noted, that there are no offsets to this claim, to the knowledge of this affiant, except as therein stated, and that the sum of the claim is a contingent amount as result of wrongful death claim is now justly due (or will or may become due as stated). I further state that if this claim is based upon a written instrument, a true and complete copy, including all endorsements, is attached.
The claim was signed by appellant, whose signature was notarized. Attached to the claim was the order filed in the Banks estate, approving the retainer agreement between the estate and an attorney to “represent Mark E. Banks, Patrick M. Banks, Joy and Jack Tanner, and the estate in their claim(s) against any insurance company of Dr. Robert Landry, the pilot of the airplane; and any manufacturer and/or mechanic service of the airplane of Dr. Robert Landry, for damages and personal injuries resulting from the death of Dayna Banks on June 23, 2005.” The retainer agreement, though itself not attached, provided in pertinent part:
Clients retain attorney to represent them as their attorney at law to settle, adjust, file and prosecute by suit in the proper courts, or otherwise dispose of, their claim against any insurance company of Dr. Robert Landry and the manufacturer and/or mechanic service of the airplane of Dr. Robert Landry, for damages and personal injuries resulting from the death of Dayna Tanner Banks on June 23,2005.
(Emphasis added.)
The appellee denied the claim and the following year filed a petition to determine that no claim against assets of the (Landry) estate could be made and to discharge the (Banks) claim. However, in the interim, the appellee had identified the claim as valid in a separate pleading in opposition to an unrelated claim. Following a hearing, the trial court denied the claim by its August 22, 2007 order. In the order the trial court found that there was not substantial compliance with certain provisions of Arkansas Code Annotated section 28-50-103 (Repl. 2004) required to be included in a claim. In particular, the order provided:
Therefore, because the order approving the retainer agreement and the language in the retainer agreement itself did not authorize suit against the assets of the estate, the affidavit was deficient to serve as notice to the Landry Estate that the Banks Estate was proceeding against the individual assets of the Landry Estate. This is especially true, when coupled with the fact that the affidavit did not contain an amount of claim, the specific names of the plaintiffs and defendants in the wrongful death claim, or other pertinent information that would have put the estate on notice that the claim was against the separate assets of the Landry Estate as opposed to liability coverage. Therefore, the claim as to the separate assets of the Landry Estate is denied.
THEREFORE, this court directs that no claim against any assets of this estate (other than as to any applicable insurance funds mentioned herein) can be made by the Estate of Dayna Banks, and those claims are hereby dismissed with prejudice.
This appeal followed the subsequent October 4, 2007 order.
Standard of Review
The standard of review is straight forward. We review probate proceedings de novo, and we will not reverse the decision of the trial court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000). We are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.
Discussion
The preliminary purpose of “claim against estate” is to provide reasonable notice to the administrator of the pending estate of relevant information regarding the claim, with which the administrator can make an informed decision.
Arkansas Code Annotated section 28-50-103 (Repl. 2004), provides:
(a) No claim shall be allowed against an estate on application of the claimant unless it shall be in writing, describe the nature and the amount of the claim, if ascertainable, and be accompanied by the affidavit of the claimant or someone for him or her that the amount is justly due or, if not yet due, when it will or may become due, that no payments have been made on the claim which are not credited, and that there are no offsets to the claim, to the knowledge of the affiant, except as stated in the claim.
(b) If the claim is contingent, the nature of the contingency shall be stated also.
(c) If the claim has been assigned after the death of the decedent, the affidavit required in this section shall be made by or on behalf of the person owning the claim at the date of death of the decedent and by or on behalf of the assignee.
(d) If a claim is founded on a written instrument, the original or a copy thereof with all endorsements must be attached to the claim.
(e) The original instrument must be exhibited to the personal representative or court, upon demand, unless it is lost or destroyed, in which case its loss or destruction must be stated in the claim.
Applying the above section, the trial court determined that the order approving the retainer agreement and the language in the retainer agreement did not authorize suit against the assets of the estate, thus concluding that the claim was deficient to serve notice to the Landry Estate that the Banks Estate was proceeding against the individual assets of the Landry Estate. In reaching that conclusion, the trial court stated, [t]his is especially true, when coupled with the fact that the affidavit did not contain an amount of claim, the specific names of the plaintiffs and defendants in the wrongful death claim, or other pertinent information that would have put the estate on notice that the claim was against the separate assets of the Landry Estate as opposed to liability coverage.”
We can deduce from the above-noted “deficiencies” that the trial court therefore determined that the claim was sufficient with respect to the remaining statutory requirements: 1) it was in writing in the form of the affidavit, 2) it stated the nature of the claim, i.e., a wrongful-death action, 3) it stated that the “amount” was justly due or will or may become due as stated, 4) it stated that no payments had been made on the claim, and 5) it stated that no offsets existed to the claim. In our view, the order attached to the claim, at the least, fleshed out the specific incident, i.e., the airplane crash on June 23, 2005, supporting the claim. While the trial court accurately noted that the claimant was not correct in asserting that the wrongful-death claim was a contingent claim, it does not appear that the trial court regarded that as a deficiency.
Before entry of its order, the trial court spent considerable time in a letter opinion discussing the retainer agreement and the order approving the retainer agreement, the gist of which has been previously described, i.e., that in both the agreement and the order, the wording limited the attorney’s authorization to proceeding against the insurance company only and not the estate separate from the insurance limits.
In Jones v. Arkansas Farmers Ass’n, 232 Ark. 186, 334 S.W.2d 887 (1960), our supreme court reached the conclusion that any possible noncompliance on the part of appellee had been waived by the executrix by failing to deny the claim or to object to its form until the statute of nonclaim had run. In reaching that conclusion, the supreme court commented:
We think it is unnecessary to decide (and we do not here decide) whether in this instance appellee’s claim was sufficiently described to meet the requirements of the statute, because we have reached the conclusion that the executrix waived any possible noncompliance on the part of appellee by failing to deny the claim or to object to its form until the statute of nonclaim had run. As heretofore noted, the last day for filing claims was April 25,1959 and the executrix did not deny appellee’s claim until May 28, 1959. There are several sections of the statutes (§ 62-2601, § 62-2602, § 62-2603, and § 62-2604) which deal with the filing of claims against an estate. It appears to us that the overall purpose of these statutes is to effect and facilitate the payment of just claims against an estate within the specified time and not to defeat a just claim on a technicality that might entrap the claimant. The rule which we think achieves the above purpose, and which we hereby approve, is well stated in 21 Am.Jur., Page 593, § 373, Form and Requirements of Claim. It is there stated: “If there is any uncertainty in a claim filed against a decedent’s estate, it is incumbent on the personal representative to call for clarification. Where no objection is made by the executor or administrator against the sufficiency of the form in which a claim is stated he may be deemed to have waived the insufficiency. If he relies on defects in form in refusing to allow a claim, he should make known his objection seasonably.”
232 Ark. at 187-88, 334 S.W.2d at 888 (emphasis added). Although the court in Jones decided that case on the basis of waiver, rather than the sufficiency of the claim, the court’s comments regarding the overall purpose of the statutes cannot be ignored. That purpose was specified to effect and facilitate the payment of just claims and not to defeat a claim based on a technicality. This stated purpose is supported by the following discussion contained in Executors & Administrators, 31 Am. Jur. 2d § 624 (2002):
The contents of a claim should be liberally construed, since the statutes were not intended to make it easier to avoid payment of a just claim, but were intended to make a claimant set forth his claim with such particularity that the personal representative would be fully advised as to just what was claimed. Accordingly, a claim need not be in any particular form; it is sufficient if it states the character and amount of the claim, enables the representative to provide for its payment, and serves to bar subsequent claims by reason of its particularity of designation.
Although a claim against an estate must be in writing, the presentation of a claim is neither a formal nor technical proceeding. A claim must be brought to the attention of the fiduciary by some action by or on behalf of the claimant, but the form of the presentation is of little importance so long as it furnishes sufficient information of the extent and character of the claim. A demand filed in probate court is not to be judged by the strict rules of pleading applied to a petition in the circuit court, and it is sufficient if it gives reasonable notice to the legal representative of the estate of the nature and extent of the claim and is sufficiently specific so that a judgment thereon will be res judicata of the obligation on which it is based. A claim is sufficient if it indicates the nature and amount of the demand in such a manner that the executors and probate court can act advisedly on it. A note or contract need not be attached to the claim unless the claim is based upon a written note or contract.
Here, the question presented can be summarized as follows: whether the trial court erred in concluding that there was not substantial compliance with the statutory requirements to file a valid claim against an estate pursuant to Arkansas Code Annotated section 28-50-103. We conclude that there was substantial compliance, and, therefore, that the trial court erred in denying appellant’s claim against the Landry estate.
Reversed and remanded for proceedings consistent with this opinion.
Hart, Robbins and Baker, JJ., agree.
Griffen and Heffley, JJ., dissent.
The statute of nonclaim ran on January 11,2006.
The trial court’s ruling that the affidavit as “the claim should not be denied for failure to file a separate claim form” was not appealed.
A tort claim is an unliquidated claim, not a contingent claim. See Turner v. Meek, 225 Ark. 744,284 S.W.2d 848 (1955). | [
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John Mauzy Pittman, Chief Judge.
This case involves a dispute over a small tract of property between appellant’s residence and appellees’ property on which they operate a bed-and- breakfast inn. The dispute arose in the summer of 2002, approximately six months after appellees acquired title to their property, formerly a church building, from the First Methodist Church of Eureka Springs. Appellant filed a quiet-title petition in 2004 claiming title to the disputed property based on adverse possession and acquiescence. A hearing was had and, after appellant presented her casein-chief, the trial judge ruled that she had failed to establish a prima facie case and dismissed appellant’s case. On appeal, appellant argues that the trial court erred in dismissing her claims because the evidence was in fact sufficient to present a prima facie case. We find no error, and we affirm.
When a party moves for a directed verdict in a jury trial or dismissal in a bench trial, it is the duty of the trial court to consider whether the plaintiffs evidence, given its strongest probative force, presents a prima facie case. Stephens v. Miller, 91 Ark. App. 253, 209 S.W.3d 452 (2005). It is not proper for the court to weigh the facts at the time the plaintiff completes his case, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted. Id. On appeal, we determine whether dismissal should have been granted by reviewing the evidence in the light most favorable to the party against whom the dismissal was sought, giving it its highest probative value and taking into account all reasonable inferences deducible from it. Id.
A party claiming title to land by adverse possession must prove all of the elements thereof. The common-law elements have been succinctly set out by the Arkansas Supreme Court as follows:
Title to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the rights of entry by the one out of possession. Utley v. Ruff, 255 Ark. 824, 502 S.W.2d 629 (1973). Possession alone does not ripen into ownership, but the possession must be adverse to the true owner or record title holder before his title is in any way affected by the possession. Id.; Coulson v. Hillmer, 271 Ark. 890, 612 S.W.2d 124 (1981). In order for a claimant to establish ownership to property by adverse possession, that party has the burden of proof to show, by a preponderance of the evidence, possession for seven years. Potlatch Corp. v. Hannegan, 266 Ark. 847, 586 S.W.2d 256 (1979). In addition, the possession must have been actual, open, notorious, continuous, hostile, and exclusive, and it must be accompanied with an intent to hold against the true owner. See Rowe v. Fisher, 239 Ark. 721, 393 S.W.2d 767 (1965); Boyette v. Vogelpohl, 92 Ark. App. 436, 214 S.W.3d 874 (2005).
Thompson v. Fischer, 364 Ark. 380, 384, 220 S.W.3d 622, 625 (2005).
The disputed area lies directly between appellant’s house and appellees’ bed and breakfast, the former church. Photographs show that this is a relatively narrow, rock-strewn passageway between the two buildings, running from the front to the rear of both properties and terminating where it encounters a vertical cliff face. A drainage channel running from the front to the rear of the property lies immediately adjacent to the bed and breakfast and extends approximately sixteen inches therefrom in the direction of appellant’s house. Appellant claims the entire area from the drainage channel to her own house. Several utility boxes and an air conditioning unit are mounted on the wall of the bed and breakfast.
Appellant’s claim for adverse possession was based on her own use of the property and that of her predecessor in title. Appellant testified that she owned her house since 1966 and believed that she owned the entire area between the two buildings. She stated that she maintained and cleared the area of leaves and debris, placed benches on it, installed a gas lamp, and planted some flowers and shrubs on it. She admitted, however, that she had never objected when the owners of the church property entered the disputed area via her staircase to access and maintain the utility boxes on the church building.
June Westphal testified that she had been a member of the church for more than fifty years, was a church steward, and had written a history of the church in 1979-80. She testified that appellant’s predecessor in title had kept the area raked and cleared. Finally, she stated that she knew of no time when the church asserted ownership to the property and that she believed the property belonged to appellant. She admitted, however, that the church building had been painted several times during this period, that the roof had been replaced, and utilities had been accessed via the disputed area. She also admitted that she did not know if the drainage ditch had ever been recognized as the boundary line, that she knew of no oral statement by any responsible person representing that the boundary between the properties was anything other than the lot line; that her duties as church steward were purely ministerial; and that it was the church trustees who were responsible for maintaining the church properties, making sure that insurance was obtained, and overseeing all legalities relating to the property.
Mary Ellen Sheard testified that she had resided in Eureka Springs since 1977, that she knew appellant, and that she assumed that the property between the buildings belonged to appellant’s predecessor in title and appellant because she observed them in the disputed area and they seemed to be taking care of all of it.
Janett Arnett testified that she was a member of the board of trustees of the church and had served in that capacity for six years. She also testified that she had served on the church’s administrative council for ten years and that the board of trustees reports to the administrative council on major decisions. Finally, she stated that she had no basis whatsoever for suspecting that any adverse claim had been made against the property and that she had executed a seller’s affidavit to that effect when the church property was sold to appellees.
Appellant argues on appeal that the trial judge erroneously applied the law and erred in finding that she failed to prove adverse possession of the tract. We do not agree. Although there was evidence that appellant placed benches and a lamp on the disputed property and kept it clear of debris, the fact remains that her claim was in excess of the boundary established by her deed. As such, appellant was in the position of a trespasser, and far greater trespasses than appear in the evidence are required for a trespasser’s claim to ripen into title. The Arkansas Supreme Court has held that the acts of an adjacent trespasser who planted a 200-foot-long row of willow trees twenty feet over his property line, had a light pole installed on the twenty-foot strip, and used the twenty-foot strip for a trailer park for more than seven years were insufficient to show actual or pedal possession to the extent of the claimed boundary. Coons v. Lawler, 237 Ark. 350, 372 S.W.2d 826 (1963). In light of this precedent, the placement of a lamp and shrubs and the temporary location of benches on appellees’ property was clearly insufficient. Nor was the testimony of June Westaphal or Mary Ellen Sheard sufficient to establish title by adverse possession. Both witnesses testified, in essence, that they assumed and believed that the disputed area was owned by appellant and her predecessor in title, but such an assumption based on temporary or intermittent use of neighboring property is not evidence that the owner has been charged with actual or constructive notice that his land is being claimed by another. Utley v. Ruff, 255 Ark. 824, 502 S.W.2d 629 (1973). Furthermore, to ripen into title, adverse use must be exclusive, and appellant candidly admitted that she did not interfere with maintenance activities conducted by the church on its property.
Finally, appellant argues that the trial court erred in finding that she failed to establish a prima facie case of title by acquiescence. When adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. Clark v. Casebier, 92 Ark. App. 472, 215 S.W.3d 684 (2005). A boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Id. Flere, however, there was nothing upon which such an agreement could reasonably be implied. Clearly, the church did not recognize the drainage ditch as the boundary line, but instead continued using portions of the disputed area beyond the ditch whenever maintenance was required on that side of the building. Painting, re-roofing, and access of utilities would have been a practical impossibility had the church agreed to be confined to a property line only sixteen inches away from the wall of their building. In the absence of any alleged or apparent monument in the disputed area other than the drainage ditch, the trial court did not err in ruling that appellant failed to show a prima facie case of boundary by acquiescence.
Affirmed.
Gladwin and Marshall, JJ., agree. | [
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Sarah J. Heffley, Judge.
This is an appeal from an order dismissing a tort complaint that was styled in the names of John H. Wilson and Martha Wilson as plaintiffs, which was brought after a previous nonsuit of a federal court case that had been filed in the same names. Appellants contend that, despite Mr. Wilson’s death during the pendency of the first action, it was procedurally necessary to have filed this second suit in the same names of those who brought the first suit, in order to take advantage of the savings statute. Based on this argument, appellants contend that dismissal was inappropriate. We find no error and affirm.
On April 15, 2004, John H. Wilson and his wife, Martha, filed a complaint against appellees Lineare, Inc. and United Medi cal, Inc., alleging that appellees negligently supplied Mr. Wilson, a terminally-ill cancer patient, with a pain pump that did not function properly. Damages were claimed for Mr. Wilson’s mental anguish and pain and suffering, and for Mrs. Wilson’s loss of consortium. Appellees subsequently removed the case to federal court. However, Mr. Wilson passed away on October 22, 2004, and Mrs. Wilson was appointed as the administratrix of his estate on November 22, 2004. A voluntary nonsuit was taken in the federal court by the entry of an order dismissing the case without prejudice on November 29, 2004.
The present action was filed in circuit court on November 28, 2005, asserting the same cause of action. Although Mr. Wilson had died and Mrs. Wilson had been appointed the administratrix of his estate, the plaintiffs in the case were again named as “John H. Wilson and Martha Wilson, husband and wife.” Appellees subsequently moved to dismiss the complaint because Mr. Wilson’s cause of action had not been brought by the administratrix of his estate. Appellees also asserted that Mrs. Wilson’s claim for loss of consortium must be dismissed because it was derivative of Mr. Wilson’s cause of action. The trial court agreed with appellees’ position and dismissed the complaint with prejudice. Appellants bring this appeal from the trial court’s order of dismissal.
For reversal, appellants contend that in order to take advantage of the one-year savings statute found at Ark. Code Ann. § 16-56-126 (Repl. 2005), they were required to refile the cause of action in the same names of the plaintiffs who had brought the first cause of action. They contend that, once the complaint was refiled, the proper procedure was to substitute the administratrix of Mr. Wilson’s estate for Mr. Wilson pursuant to Ark. R. Civ. P. 25. Appellants cite the supreme court’s decision in Deaver v. Faucon, 367 Ark. 288, 239 S.W.3d 525 (2006), in support of their position.
In Deaver, Faye Deaver and her son filed a breach-of-contract and negligence complaint against the various defendants. While the case was pending, Faye Deaver died, and a motion was filed pursuant to Rule 25 for the appointment of a special administrator and for an order substituting the administrator for Faye Deaver as a party plaintiff. The trial court entered an order granting those requests but later dismissed the complaint on the defendants’ motion because an order of revival had not been obtained pursuant to the revivor statute, Ark. Code Ann. § 16-62-108 (Repl. 2005). The issue before the supreme court was whether the order entered pursuant to Rule 25 was sufficient to revive an action under the revivor statute. The supreme court observed that the revival of an action is a matter of procedure, as the term “revivor” is a procedure used upon the death of a party to a legal proceeding in which a new party is substituted to proceed with the prosecution or defense of the claim. The court ruled that the law governing the procedure for obtaining an order of revivor is primarily found in Rule 25 and that the order entered by the trial court appointing a special administrator and substituting the administrator in Ms. Deaver’s stead was sufficient to revive the action.
In the case at bar, the trial court reasoned that the law on revivor was not applicable because this case did not necessarily concern the substitution of parties in a pending action, but rather it involved the commencement of a new action subsequent to a nonsuit that was taken after a party died. We agree that Deaver is not directly on point. Here, no effort was made to revive the claim in federal court where Mr. Wilson’s claim was pending when he passed away.
Appellees defend the trial court’s decision with an argument based primarily on Recinos v. Zelk, 369 Ark. 7, 250 S.W.3d 221 (2007). In that case, a wrongful-death lawsuit was filed on behalf of all statutory beneficiaries and heirs at law of the decedent. Subsequent to the filing of the complaint, a special administrator was appointed for the decedent’s estate. Later on, a nonsuit was taken; however, the special administrator was not substituted as the plaintiff prior to the nonsuit. Styled in the same way as the previous action, the case was refiled within one year under the savings statute. The appellees filed a motion to dismiss because the case was not brought in the name of the special administrator, as required by the wrongful-death statute, Ark. Code Ann. § 16-62-102(b) (Repl. 2005). In response, the appellants argued that the savings statute required the case to be refiled in the same names as the previous lawsuit, citing Smith v. St. Paul Fire & Marine Ins. Co., 76 Ark. App. 264, 64 S.W.3d 764 (2001). The trial court granted the motion to dismiss.
On appeal, the supreme court affirmed the trial court’s decision. First, the court recognized the previous opinions of our courts holding that the wording of the savings statute required that the plaintiff, who refiles a case after a non-suit, must be the same party who brought the case that resulted in the nonsuit. See Murrell v. Springdale Memorial Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997); Smith v. St. Paul Fire & Marine Ins. Co., supra. However, the court held that, once a personal representative was appointed, the personal representative became the real party in interest and was the only party who could file a wrongful-death suit under the wrongful-death statute. The court then ruled that, because the special administrator was not substituted as the party plaintiff prior to the previous nonsuit, the heirs at law had no authority to refile the complaint. Thus, the rule that emerges from the supreme court’s decision is that, in wrongful-death cases where the real party in interest changes before a nonsuit is taken, the real party in interest must be substituted prior to the nonsuit in order to subsequently take advantage of the savings statute.
Though Recinos is not on all fours with the present case, its teaching is instructive and applies by analogy. Here, Mr. Wilson died and a personal representative was appointed for his estate during the pendency of the federal lawsuit, yet the personal representative was not substituted for him prior to the taking of a nonsuit dismissing the case without prejudice. Although Recinos was decided with an eye toward the wrongful-death statute, which is not applicable here, the statute governing this case suggests the same result. Arkansas Code Annotated section 16-62-101(a)(l) (Repl. 2005), our survival statute, provides that for “wrongs done to the person ... , an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer.” Thus, the statute requires that post death the survival claim must be asserted by the personal representative.
Mr. Wilson filed his claim for personal injuries before he died. Therefore this case does not involve the post-death assertion of a claim governed only by the survival statute. This issue involves revivor as well as substitution. Mr. Wilson’s administratrix should have followed the substitution process found in Rule 25 of the Federal Rules of Civil Procedure and thereby revived the case in her capacity as administratrix in federal court. Instead, she dismissed.
Based on Rule 25 and the survival statute, the trial court acted correctly in dismissing the refiled case. Mr. Wilson died and an administratrix was appointed for his estate during the pendency of the federal action. Upon his death and with the appointment of the administratrix, the real party in interest became the administratrix of his estate, but no substitution was made before the federal case was nonsuited. His claim abated and was never revived. Consequently, appellants cannot benefit from the savings statute, and the trial court properly dismissed the complaint with prejudice, because the claim is now time barred.
Affirmed.
Pittman, C.J., and Marshall, J., agree. | [
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Sarah J. Heffley, Judge.
Appellants were found in contempt and ordered to pay appellees $750 in reimbursement for attorney’s fees. On appeal, appellants contend that the order they were held to have violated was not clear and definite in its terms and they did not purposefully violate the court’s order. We reverse the finding of contempt.
In 1998, a dispute arose between the Jefferson County Road Department (“the County”) and appellants, whose property adjoined a roadway known as Shepherds Island Road, Knott Island Road, or Knotts Island Road. The County filed a complaint asserting that it had maintained and repaired the road for a period in excess of seven years; that the public had acquired an easement by prescription for use of the road; and seeking a declaratory judgment that the road was a public road. The County alleged that appellants had recently thwarted its maintenance efforts and interfered with its right to maintain and improve the road. The court issued a temporary order on November 24, 1998, granting the County the authority to engage in repairs and upkeep on the road pending a final order on the matter. However, in its final order filed August 19, 1999, the circuit court found that the County had failed to meet its burden of proof and that the road was not a public road.
On December 5, 2003, the appellees, whose property is accessible only by Knotts Island Road, filed a complaint asking the trial court to find that they had a prescriptive easement for ingress, egress, and utility purposes. Appellees sought an injunction to bar appellants from interfering with appellees’ use of the road and asked the court to declare the road a public road for all future purposes. Appellees contended that despite their repeated attempts to maintain the road, the appellants had threatened and impeded maintenance attempts and had impeded use of the road. On November 3, 2005, the circuit court entered an order stating:
1. All of the landowners along Knotts Island Road have the equal right to maintain and improve this road without any interference or permission of any party to this action. This order is effective immediately.
2. This order does not affect any previous order dealing with the rights ofjefferson County.
3. Based on the reasoning of Carson v. County of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003) and Gazaway v. Pugh, 69 Ark. App. [297], 12S.W.3d 662 (2000), the Court finds and orders that Knotts Island Road is a public road.
4. That this Court retains jurisdiction of the matter for enforcement purposes.
On March 5, 2007, appellees filed a motion for contempt, arguing that appellants had prevented the Department from performing the necessary maintenance of Knotts Island Road and that appellants’ actions were in “absolute disregard” of the court’s November 3 order. A hearing on the matter was held May 10, 2007. Betty Raiford, one of the appellees, testified that after the previous trial had concluded, her understanding was that if the road was a public road, the county could maintain the road. She testified that she contacted the judge and verified that the County could now come in and take care of the road, and after her conversation with the judge, the county did in fact begin maintaining the road at her request.
Rosine Knott, one of the appellants, testified that she called the County on December 14, 2006, after she saw them grading the road and told them that the County had no right to be there. Ms. Knott acknowledged that the other property owners had a right to maintain the road, but she insisted that they did not have the right to ask the County to maintain the road. After questioning from the court, Ms. Knott explained that her concern with the County performing the road maintenance was that the county would acquire rights to the road and it would be declared a county road.
David Knott also testified that he had called the County and complained, specifically taking issue with a “county road” sign that had been erected beside the road. Mr. Knott testified that he understood the court had ordered that nobody interfere with the road being maintained, “except for the part that you had in the order about the County not being privy to that.” Mr. Knott explained that his understanding of the court’s order was that the other property owners can get whoever they want to help grade the road, but the County could not be involved.
Angelo Walker, an employee with the County, testified that based on the telephone calls received from the Knotts, the County had ceased to work on the road and had not done any work on the road since December 2006. He testified that the County had erected the “county road” sign and performed maintenance of the road at the direction of the county judge, but after the complaints were received, the County was directed to erect a “private road” sign until the matter was settled, which it did. Walker testified that the County had worked on the road several times in 2006 prior to receiving the complaints from appellants.
In an order filed June 4, 2007, the court found that appellants had “unreasonably interfered” with appellees’ attempts to have the road maintained, and appellants’ actions were in violation of the court’s previous order. The court found that appellants were in willful contempt and ordered them to (1) not interfere with the County’s maintenance of the road and (2) pay appellees the sum of $750 for reimbursement of their attorney’s fees. Appellants now appeal the finding of contempt to this court.
In a contempt case, the first question this court must address in deciding whether the contempt sanctions imposed were appropriate is whether the contempt was civil or criminal. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). Our supreme court has explained the two types of contempt:
Contempt is divided into criminal contempt and civil contempt. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties.... In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. . . . Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged.
Ivy v. Keith, 351 Ark. 269, 279-80, 92 S.W.3d 671, 677-78 (2002) (internal citations omitted). From the above explanation, it is clear that the fine imposed in the present case was based on a finding of criminal contempt.
The standard of review for a case of criminal contempt is well settled: an appellate court views the record in a light most favorable to the trial judge’s decision and will sustain the decision if supported by substantial evidence. Conlee, supra. For a person to be held in contempt for violating a court order, that order must be clear and definite as to the duties imposed upon the party, and the directions must be expressed rather than implied. Wakefield v. Wakefield, 64 Ark. App. 3, 984 S.W.2d 32 (1998).
On appeal, appellants argue that they were simply trying to follow the prior orders of the court while at the same time protecting their interest in the road “to avoid the danger of having the road declared to be a county road as opposed to merely a public road.” Appellants acknowledge that the November 3 order clearly states that all landowners along the road had the equal right to maintain and improve the road without interference. Flowever, appellants contend that by also stating in the order that it did not affect any previous order dealing with the county road department, “any reasonable person would conclude from those prior orders that Jefferson County, Arkansas was not supposed to be on the road ... and that appellants had every right to tell the county to get off the road.” Appellants assert there is no basis for the finding that they purposely violated the prior orders of the court, and they contend this is not a proper case for a finding of contempt because “[t]here obviously was some confusion on the part of the appellants” as to what role the county could play in maintaining the road.
We agree that this is not a proper case for a finding of contempt. As stated previously, for a party to be held in contempt for violating a court order, that order must be clear and definite as to the duties imposed upon the party, and the directions must be expressed rather than implied. Wakefield, supra. The trial court’s order specifically noted that it did not affect any previous order dealing with the rights of Jefferson County, and in the previous order, the court found that the County had no right to maintain the road. The trial court’s order did not make clear that the County now had a right to maintain the road if it was at the request of appellees. And there is no indication that appellants were aware that the County was performing maintenance at appellees’ request at the time appellants lodged their complaints. Accordingly, we reverse the finding of contempt.
Reversed.
Gladwin, Robbins, Glover, and Baker, JJ., agree.
Griffen, J., dissents. | [
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] |
D. Franklin Arey, III, Judge.
The appellant, Carl E. Richard, entered a conditional plea of guilty to a charge of possession of a controlled substance. The Lonoke County Circuit Court suspended imposition of a sentence for five years, placed appellant on probation for three years, and fined appellant $2,000. On appeal, appellant argues that the police made a warrantless entry into his cousin’s home without exigent circumstances, so that the evidence gained from their entry should have been suppressed. Because appellant failed to establish his standing to raise this Fourth Amendment challenge, we affirm.
On the morning of November 7, 1996, a confidential informant notified officers at the England Police Department that he could purchase cocaine at 603 Southeast Second Street in England. After the informant was searched and provided with a previously photocopied $20 bill, Officer Andolina rode with the informant to the residence at 603 Southeast Second Street to make the purchase. As the officer watched from the car, the informant approached the residence, gave Johnnie Richard the $20 bill, and waited as Johnnie Richard entered the residence. Johnnie Richard then came back outside and delivered a substance to the inform ant. The informant returned to Officer Andolina’s vehicle; the officer field-tested the substance, and it tested positive for cocaine.
Officer Cook observed the transaction from a distance; he was in uniform in a marked car. Officer Andolina notified Officer Cook by radio that the substance had tested positive for cocaine. Officer Cook then approached the residence, entered the front door, identified himself as an officer with the England Police Department, and ordered everyone to the floor. At least two other individuals were present besides appellant and his cousin, Johnnie Richard. No other drugs were found inside the residence, but appellant was found in possession of the $20 bill given to the informant.
A hearing was held on appellant’s motion to suppress. Appellant argued that Officer Cook’s warrantless entry into the residence was unconstitutional, so that any evidence gained as a result of the police search should be suppressed. The State responded that exigent circumstances justified the warrantless entry into the residence.
At the hearing on appellant’s motion, Officer Cook testified that he knew Johnnie Richard resided at 603 Southeast Second Street. He testified that appellant is Johnnie Richard’s cousin, and that appellant resided in Tucker, about five miles south of England. Officer Andolina also testified that Johnnie Richard was “staying there”; however, Officer Andolina was not positive that the residence was Johnnie Richard’s “legal residence.” Appellant did not testify at the suppression hearing. At the conclusion of the hearing, the trial court denied the motion to suppress.
On appeal, appellant challenges Officer Cook’s warrantless entry into the home. However, we affirm the trial court based upon appellant’s failure to establish his standing to raise a Fourth Amendment challenge.
Rights secured by the Fourth Amendment are personal in nature, and may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978). A person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by a search of a third person’s premises or property. Id.; Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998); Rankin, supra. The pertinent inquiry regarding standing to challenge a search is whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Rankin, supra.
It is well settled that the defendant, as the proponent of a motion to suppress, bears the burden of establishing that his Fourth Amendment rights have been violated. Ramage, supra; Rankin, supra. One is not entitled to automatic standing simply because he is present in the area or on the premises searched or because an element of the offense with which he is charged is possession of the thing discovered in the search. Ramage, supra. We will not reach the constitutionality of the search where the defendant has failed to show that he had a reasonable expectation of privacy in the object of the search. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996); Rankin, supra.
In this instance, appellant presented no evidence upon which we could base a finding that he had standing to contest the search. Appellant did not testify. Officer Cook testified that Johnnie Richard resided at 603 Southeast Second Street; further, he testified that appellant resided in a town five miles south of England. Thus, we have no indication that appellant had any proprietary or possessory interest in the residence, or that he was an overnight guest. See Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994); Rankin, supra. Appellant simply failed to meet his burden of establishing standing to raise a Fourth Amendment challenge. Ramage, supra. Therefore, we do not reach the merits of appellant’s arguments on appeal. Id.; Rankin, supra.
Appellant argues that this court must reach the merits of his challenge because the State questions appellant’s standing for the first time on appeal. However, as we explained in Ramage, an appellate court may affirm the result reached by the trial court, if correct, even though the reason given by the trial court may have been wrong. Ramage, 61 Ark. App. at 178 n.1; 966 S.W.2d at 269 n.1. Thus, it is appropriate for this court to affirm the trial court because appellant did not meet his burden of establishing standing to raise a Fourth Amendment challenge.
Affirmed.
Pittman, Rogers, and Neal, JJ., agree.
Griffen and Crabtree, JJ., dissent without opinion. | [
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John Mauzy Pittman, Judge.
The appellant, an Oregon corporation, was hired to modify some machinery purchased in Oregon. Before appellant would undertake the work, it required a down payment and financial statement. Appellant received down payment in the form of a check for $33,800 issued by appehee, McKnight Plywood, Inc., an Arkansas corporation. Appellant also received appellee’s financial statement on appehee’s letterhead. Appellant did the work, which took approximately one year, and was then told to deliver the repaired machinery to a Mississippi corporation named Jackson Wood Products, Inc. Appellant delivered the machinery as instructed but never received full payment. Consequently, appellant sued appehee in a state circuit court in Oregon. Appehee failed to respond, and a default judgment was entered. Appehant then attempted to register the foreign judgment in the Circuit Court of Phillips County, Arkansas. Appehee defended on the grounds that personal jurisdiction was lacking; it asserted that its president was also the president of Jackson Wood Products, and that the repair order was made on behalf of Jackson Wood Products, which received the equipment. The trial court found that personal jurisdiction over appellee was lacking and held that the default judgment was not entitled to be enforced in Arkansas. From that decision, comes this appeal.
For reversal, appellant contends that the trial court erred in finding that the Oregon circuit court lacked jurisdiction over appellee, and in finding that appellee lacked sufficient minimum contacts with Oregon to permit an exercise of jurisdiction that comports with the due process clause. We agree, and we reverse.
The Arkansas Supreme Court recently summarized the principles governing the exercise of personal jurisdiction over nonresident defendants in John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 28, 962 S.W.2d 801, 803 (1998), where it stated that:
The U.S. Supreme Court has held that in order for state courts to maintain personal jurisdiction over a nonresident person under the Due Process Clause of the Fourteenth Amendment, a party must satisfy two prongs. The party, first, must show that the nonresident has had sufficient “minimum contacts” with this state and, secondly, must show that the court’s exercise of jurisdiction would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In this same vein, the Court has held that personal jurisdiction over a nonresident defendant generally easts when the defendant’s contacts with the state are continuous, systematic, and substantial. Helicopteros Naciaonales de Columbia, S.A v. Hall, 466 U.S. 408 (1984). See also Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952). It is essential for a finding of personal jurisdiction that there be some act by which the defendant purposefully avails himself or herself of the privilege of conducting business in the forum state. Hanson v. Denckla, 357 U.S. 235 (1957). Moreover, the contacts should be such where a defendant would have a reasonable anticipation that he or she would be haled into court in that state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980);
The Eighth Circuit Court of Appeals has established a five-factor test for determining the sufficiency of a defendant’s contacts with the forum state so as to result in personal jurisdiction:
(1) the nature and quality of contacts with the forum state;
(2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties.
Burlington Industries, Inc. v. Maples Industries, Inc., 97 F.3d 1100 (8th Cir. 1996). See also Glenn v. Student Loan Guar. Found., 53 Ark. App. 132, 920 S.W.2d 500 (1996). We agree with the Eighth Circuit and our court of appeals that these factors are helpful in the minimum-contact analysis.
Although appellee was later reimbursed by Jackson Wood Products, and despite the trial court’s finding to the contrary, we think it clear that appellee was at the very least acting as Jackson Wood Products’s agent in the transaction. Agency may be implied from the apparent relations and conduct of the parties, Showalter v. Edwards and Associates, Inc., 112 Or. App. 472, 831 P.2d 58 (1992), and here appellee was the entity writing the checks and providing the credit. In this context, it should be noted that the Oregon Rules of Civil Procedure declare that personal jurisdiction exists where a party is served in any action that arises out of a promise made to the plaintiff by defendant “to perform services within this state or to pay for services to be performed in this state by the plaintiff.” ORCP 4 E(l) (emphasis added). Whatever other involvement appellee may have had, its payment of the down payment, accompanied by its financial statement, clearly shows that it was the entity promising to pay for appellant’s work. Such a promise to pay for services to be performed in Oregon was found to be a sufficient basis for jurisdiction in Lenhardt v. Stafford, 101 Or. App. 400, 790 P.2d 557 (1990).
Given the length of the relationship between the parties (almost one year), the fact that appellee’s corporate president himself went to Oregon to obtain appellant’s services, and that the suit arises directly out of appellee’s actions in Oregon, we think it apparent that appellee purposely availed itself of the privilege of doing business in Oregon. Having submitted its financial statement in Oregon to an Oregon company in an attempt to obtain that company’s services, appellee should not have been surprised to be sued in Oregon when those services were not paid for.
Reversed and remanded.
Bird and Griffen, JJ., agree. | [
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Sam Bird, Judge.
This appeal is brought by the Attorney General, State of Arkansas from Order No. 15 of the Arkansas Public Service Commission (Commission). The Attorney General contends that Order No. 15 is unlawful because (1) it does not include sufficient detail and findings of fact to enable a reviewing court to determine how the Commission arrived at its decision, (2) it is not supported by substantial evidence, and (3) the terms of it are arbitrary, capricious, and unreasonable. We agree that Order No. 15 does not include sufficient findings to allow this court to conduct a meaningful review, and we reverse and remand.
Order No. 15 resulted from a petition for a rate increase filed by Arkansas Oklahoma Gas Company (AOG), which initially claimed a rate deficiency of $7,253,853 but later agreed to a revenue deficiency of $3,495,988. Thereafter, AOG, the staff of the Commission (Staff), and West Central Arkansas Gas Consumers (WCAGC), a group of fourteen industrial customers connected to AOG’s gas distribution system, filed a “Stipulation and Agreement” with the Commission that proposed a total revenue requirement of $38,584,136 and a revenue deficiency of $3,495,988 for AOG. Although the Attorney General had no dispute with the proposed revenue requirement and revenue deficiency included in the agreement, he urged the Commission to reject it because it assigned the entire revenue deficiency to the residential class, resulting in a 22% increase in residential rates.
A public hearing concerning the adoption of the Agreement was held by the Commission. AOG, Staff, and WCAGC produced evidence supporting its adoption. The Attorney General’s witness argued that a 22% increase in rates to the residential class would cause “rate shock” and was, therefore, unreasonable and not in the public interest. The Attorney General urged the Commission to consider phasing in the rate increase over a period of time.
At the conclusion of the hearing, the Commission requested that the parties supplement the record with summary briefs, specifically addressing alternatives to the proposed 22% increase in residential rates. The Staffs brief contained an attachment outlining a three-year and a four-year phase-in plan for the 22% increase that included a 10.27% carrying charge on the uncollected balance. The Commission adopted the Agreement, conditioned upon the Staffs three-year phase-in plan. The Attorney General petitioned the Commission to rehear Order No. 15, but his petition was deemed denied after thirty days.
Arkansas Code Annotated section 23-2-423 (c)(3), (4), and (5) (Supp. 1997) defines our standard of review. We must determine whether the Commission’s findings of fact are supported by substantial evidence, whether the Commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the Constitutions of the State of Arkansas or the United States. See Bryant v. Arkansas Pub. Serv. Comm’n, 55 Ark. App. 125, 931 S.W.2d 795 (1996); Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 877 S.W.2d 594 (1994). In Bryant v. Arkansas Pub. Serv. Comm’n, the court stated:
The Arkansas Public Service Commission has broad discretion in exercising its regulatory authority, and courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 129, 843 S.W.2d 855 (1992); Russellville Water Co. v. Arkansas Pub. Serv. Comm’n, 270 Ark. 584, 588, 606 S.W.2d 552 (1980). . . . This Court has often said that, if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then this court must affirm the Commission’s action. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 76, 813 S.W.2d 263 (1991).
55 Ark. App. at 135, 931 S.W.2d at 800.
In Order No. 15, the Commission reviewed the evidence that had been presented for and against the Agreement, concluding that “[b]ased upon all of the pre-filed testimony and oral testimony presented by Staff, AOG, and WCAGC, the Commission finds the [Agreement] supported by substantial evidence of record and represents a just and reasonable resolution of all issues in this proceeding and, therefore, is in the public interest, conditioned upon the proposed rate increase for residential customers being phased in using the three-year phase-in proposal as set forth in the attachment to Staff’s May 23, 1997, post-hearing brief.”
In Bryant v. Arkansas Public Service Comm’n, 46 Ark. App. 88, 877 S.W.2d 594 (1994), this court held that the Commission’s statutory authority is broad enough to allow it to consider non-unanimous stipulations but cautioned that, in doing so, it must afford a nonstipulating party adequate opportunity to be heard on the merits of the rate application and the stipulation agreed to by some of the parties, and that it must make an independent finding, supported by substantial evidence, that the stipulation resolves the issues in dispute in a way that is fair, just and reasonable, and in the public interest. See also Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).
Arkansas Code Annotated section 23-2-421 (a) (1987) requires that the Commission’s decision be in sufficient detail to enable any court in which any action of the Commission is involved to determine the controverted question presented by the proceeding. Bryant v. Arkansas Pub. Serv. Comm’n, 62 Ark. App. 154, 969 S.W.2d 203 (1998). On review, the appellate court must determine, not whether the conclusions of the Commission are supported by substantial evidence, but whether its findings of fact are so supported. Id.; see also Arkansas Pub. Serv. Comm’n v. Continental Tel. Co. of Ark., 262 Ark. 821, 561 S.W.2d 645 (1978). The Commission’s findings must be in sufficient detail to enable the courts to make an adequate meaningful review; courts cannot perform the reviewing functions assigned to them in the absence of adequate and complete findings by the Commission on all essential elements pertinent to a determination of a fair return. Bryant v. Arkansas Pub. Serv. Comm’n, 62 Ark. App. at 154, 969 S.W.2d at 207. We also stated:
[I]f the commission fails to set forth sufficiently the findings and the evidentiary basis upon which it rests its decision, we shall not speculate thereon or search the record for supporting evidence or reasons, nor shall we decide what is proper. Instead, we shall remand the case in order to provide the commission an opportunity to fulfill its obligations in a supplementary or additional decision.
Id. (quoting Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 56, 64, 871 S.W.2d 414, 418 (1994)).
The Attorney General contends that Order No. 15 is unacceptable because it does not include sufficient detail and findings of fact to enable the court to determine how the Agreement represents a just and reasonable resolution of the issues in the proceeding or how the Agreement is in the public interest. He argues that the Commission has failed to explain how the Agreement can be in the public interest when the result of it is to allocate to the residential class a rate increase of 22%, which is more than 100% of the revenue deficiency, while at the same time decreasing the rates of the industrial class by 26%. He maintains that the Commission has failed to make findings supporting its conclusion that the three-year phase-in plan, which charges the residential class an additional $399,318 to phase in the 22% rate increase, is just and reasonable and in the public interest.
In Order No. 15, the Commission found that many of AOG’s customers have the ability to bypass AOG’s system, that the large industrial customers pay a large share of AOG’s fixed costs, and that, if the industrial customers bypass AOG’s system, AOG would lose revenue, thereby causing an increase in its rates to its remaining customers. Nevertheless, the Commission made no findings that address the Attorney General’s concern about rate shock. The Commission’s Order neither addressed whether it found that a risk of rate shock existed nor indicated whether the risk of bypass was weighed against the risk of rate shock. Furthermore, Order No. 15 contains no findings that support its decision to phase in the rate increase to residential class customers over three years. It merely recites: “Staffs proposal is designed to phase-in the rate increase to the residential class by 10 percent per year with a carrying charge on the uncollected balance at the pretax rate of return of 10.27 percent. Staffs phase-in proposal is reasonable and in the public interest.”
As the trier of fact in rate cases, it is the Commission’s function to decide on the credibility of the witnesses, the reliability of their opinions, and the weight to be given their evidence. See Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. 213, 907 S.W.2d 140 (1995). This court must know what the findings of the Commission are before they can be given conclusive weight. Bryant v. Arkansas Pub. Serv. Comm’n, 62 Ark. App. at 154, 969 S.W.2d 206-07.
AOG and Staff argued in their posthearing briefs, and the Commission implies in Order No. 15, that the Attorney General is not in a position to argue about the adoption of the phase-in plan because it was the Attorney General who urged a phase-in of the 22% increase. We find no merit to this argument. Although it would unduly lengthen this opinion to recount the questions and answers from the hearing, it is apparent to us that counsel and the witness for the Attorney General never suggested or agreed to a phase-in plan that would further increase the rates that the residential class would be required to pay.
The Commission asserted that it was aware that acceptance of the Agreement would mean the end of subsidies to the residential class. The Commission stated: “It is the position of AOG, Staff, and WCAGC that AOG’s rates should be redesigned to eliminate inter-class subsidies and that AOG’s rates be set based upon the cost of providing service to each customer class.” Relying on this language, the Commission contends that Order No. 15 is perfecdy clear as to what the Commission’s findings of fact were and that it concluded that the risk of bypass by industrial customers was too great to continue the subsidization of residential customers. However, from the arguments, both before the Commission and in oral argument before this court, there seems to be a dispute among the parties as to whether adoption of the Agreement would end all inter-class subsidies. Therefore, we reverse and remand to the Commission.
Reversed and remanded.
Pittman, Jennings, Rogers, Stroud, and Roaf, JJ., agree. | [
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Sam Bird, Judge.
Appellant, the Patrick Family Trust, represented by Trustee Dorothy C. Patrick, filed suit in Madison County to quiet title by adverse' possession to a piece of property directly across the street from the family’s home. The evidence was clear and convincing that the Patrick family had used and possessed the land and a “shop” located on it for more than fifty years. Quiet title was denied appellant because in 1995 the legislature had revised the adverse possession statute and added a provision requiring that the person attempting to show adverse possession of land prove that he “[h]eld color of title to real property contiguous to the property being claimed by adverse possession.” Ark. Code Ann. § 18-11-106 (Supp. 1997) (emphasis added). Because a street separated the Patrick’s family property from the shop property, the chancellor found the contiguous requirement was lacking.
The cases defining the term “contiguous” generally fall into the categories of annexation, eminent domain, or homestead exemption. Seligson v. Seegar, 211 Ark. 871, 202 S.W.2d 970 (1947), involved tax-forfeited land advertized as two separate parcels. The court held that two forty-acre tracts were not contigu ous because they did not touch; in fact, their nearest corners were approximately one-fourth mile apart. That court cited Webster’s Dictionary and Bouvier’s Law Dictionary as defining contiguous as “in actual contact; touching.”
The same definition was relied upon in Kalb v. City of West Helena, 249 Ark. 1123, 463 S.W.2d 368 (1971), which was an annexation case. Our statutes generally require land to be annexed by a city to be contiguous to the municipality. See, e.g., Ark. Code Ann. § 14-40-201 (Repl. 1998). In Kalb the court repeated the Seligson definition of contiguous, and said, “we understand contiguous lands to be those not separated from the municipal corporation by outside lands.” See also Clark v. Holt, 218 Ark. 504, 237 S.W.2d 483 (1951).
The chancellor found that appellant had proven adverse possession; however, the street destroyed the required contiguity with their other property. Under the circumstances of this case, and the case law cited above, we cannot say the decision of the chancellor was clearly erroneous or clearly against the preponderance of the evidence.
Appellant did not raise the issue of whether Ark. Code Ann. § 18-11-106 should be given retroactive effect where the adverse possession has evolved into ownership before the statute was changed; therefore, we will not address it.
Affirmed.
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Judith Rogers, Judge.
This case arises out of a hit-and-run automobile accident in which a pedestrian, Otha Jordan, was struck and killed. The accident occurred at approximately 10:30 p.m. on July 21, 1995, when Reginald Moseby, who was fleeing from the Dermott police while driving Teresa Moore’s Cadillac, ran over Mr. Jordan. Ms. Moore was Moseby’s girlfriend. At the time of the accident, Ms. Moore had an automobile liability insurance policy on her Cadillac with appellee Progressive Insurance Company. Appellant Bettie Clark and the other appellants (other than Moore and Moseby) are the heirs of Otha Jordan. They appeal the Chicot County Circuit Court’s order granting appellee Progressive Insurance Company’s motion for summary judgment. The insurance company had initially sought declaratory judgment and subsequently moved for summary judgment on the basis that it had no contractual duty to defend any suit against Reginald Moseby brought by the heirs of Otha Jordan or to satisfy any judgment against Moseby obtained by the heirs. The insurance company alleged that its liability policy with Moore excluded non-permissive users of her Cadillac and, when Moseby struck and killed Otha Jordan, he did not have Ms. Moore’s permission to drive the Cadillac. We reverse and remand the circuit court’s order granting summary judgment to the insurance company. We do so because, based on our review of the pleadings and other filings before the circuit court, we conclude that there is a genuine issue of material fact regarding whether Reginald Moseby had Teresa Moore’s implied permission to drive her automobile when he struck and killed Otha Jordan.
In April 1996, appellee Progressive Insurance Company filed in Chicot County Circuit Court a declaratory judgment complaint. In its declaratory judgment complaint, the insurance company recited the facts, noted above, and requested that the circuit court declare that it had no duty, based on its automobile liability insurance policy with Teresa Moore, to indemnify the heirs of Otha Jordan or to defend Reginald Moseby, if the heirs sued him. The insurance company asked for declaratory judgment on the basis that its liability insurance policy with Ms. Moore excluded non-permissive users and that Moseby was a non-permissive user of Ms. Moore’s automobile when he struck and killed Otha Jordan. However, it conceded that it was contractually obligated to defend Teresa Moore. The insurance company’s declaratory judgment action was assigned Chicot County Circuit Court Docket No. CIV96-49-1.
Just over a year later, in June 1997, the insurance company filed in Chicot County Circuit Court Docket No. CIV96-49-1 a motion for summary judgment. Therein, the insurance company repeated the facts and legal theory that it had set forth in its initial complaint requesting declaratory judgment and asserted that it was entitled to summary judgment because its liability policy with Ms. Moore specifically excluded coverage for non-permissive users of her automobile. The insurance company also noted in its brief in support of its summary-judgment motion that, subsequent to its requesting declaratory judgment, Bettie Clark, as the administra-trix of the estate of Otha Jordan, filed a wrongful death action against Teresa Moore and Reginald Moseby in Chicot County Circuit Court Docket No. CIV 96-132-1.
On August 28, 1997, the circuit court handed down an order denying the insurance company’s summary-judgment motion. In response to the circuit court’s denial of its summary-judgment motion, the insurance company deposed Reginald Moseby and then attached a copy of Moseby’s deposition to a supplement to its summary-judgment motion. At the time the parties deposed Moseby he was imprisoned in the Arkansas Department of Correction, where he was serving a two-year sentence imposed on him after he had been found guilty of the negligent homicide of Otha Jordan. The insurance company’s supplement to its summary-judgment motion persuaded the circuit court to reconsider its denial of the company’s summary-judgment motion. On October 28, 1997, the circuit court entered a second order granting summary judgment to the insurance company.
The legal principles that govern our review of a trial court’s grant of summary judgment are well established. Summary judgment should be granted only when a review of the pleadings and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W. 2d 788 (1998). The moving party always bears the burden of sustaining a motion for summary judgment. Liberty Mut. Ins. Co. v. Thomas, 333 Ark. 655, 971 S.W. 2d 639 (1998). Summary judgment should not be granted when reasonable minds could differ as to the conclusions that could be drawn from the facts presented. Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W. 2d 639 (1998). After the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Adams v. Arthur, 333 Ark. 53, 969 S.W. 2d 598 (1998). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We review the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Nel son v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W. 2d 777 (1998). A party seeking a declaratory judgment may move for summary judgment. Ark. R. Civ. P. 56(a).
Reginald Moseby’s deposition, which Progressive Insurance Co. introduced to support its renewal of its summary-judgment motion, leaves a genuine issue of material fact to be decided — whether Reginald Moseby had Teresa Moore’s implied permission to drive her automobile when he ran over Otha Jordan. In his deposition Reginald Moseby stated that, at the time of the accident, Teresa Moore was his girlfriend, that he and Ms. Moore had “been together” for almost twelve years, that they lived together and that they had three children. Moseby also stated that he had never owned an automobile, but that he had helped Ms. Moore pay “the notes” on her Cadillac, which she had had about two months before the accident. When asked if he considered Ms. Moore’s Cadillac to be his car, too, Moseby replied, “I been with her twelve years, so she’s my wife, so what’s hers is mine and what’s mine is hers.” Moseby admitted that even though Ms. Moore had forbidden him from driving her Cadillac, he had done so anyway and that she knew that he had done so. On this point, Moseby stated, “I say she knew I was driving the car, but I still didn’t have her permission to drive it.” Finally, with regard to whether Ms. Moore had given him permission to drive her Cadillac on the night that he struck and killed Otha Jordan, Moseby stated he confronted Ms. Moore, who was at the home of her sister and brother-in-law, Brenda and Robert Staggers, that Ms. Moore did not want him to drive her automobile that evening, that they struggled over the keys to the automobile, which Ms. Moore had in her hand, and that he took the keys from her and drove away.
Whether the owner has given another person implied permission to drive his or her automobile depends on the nature of the relationship between the owner and the borrower. The standard treatise on the law of insurance describes “implied permission to drive an automobile” as follows:
An implied permission ... is not confined to affirmative action, but means an inferential permission, in which a presumption is raised from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection signifying consent.
But implied permission is not limited to such situations, and will be evaluated in light of all the facts and circumstances surrounding the parties.
Implied permission may be proved by circumstantial evidence. Circumstances such as usage, practice, or friendship may be used to show implied permission.
It may be found that the insured has given implied permission where the named insured has knowledge of a violation of instructions and fails to make a significant protest.
It has also been stated, however, that the term “permission” contemplates something more than mere sufferance or tolerance without taking steps to prevent, and the term is used in the sense of leave, license, or authority with the power to prevent.
Such implied permission is usually shown by usage and practice of the parties over a period of time preceding the day upon which the insured automobile was being used, assuming, of course, that all parties had knowledge of the facts. When this showing is made, there is considered to be a sufficient showing of a course of conduct in which the parties mutually acquiesced to bring the additional insured within the policy protection, provided, of course, that any acquiescence on the part of the insured was by some one having authority to give permission for him.
6C Appleman, Insurance Law and Practice § 4365 at 177-87 (Buckley rev. ed. 1979)(internal citations omitted). If the owner of an automobile forbids another person from driving the automobile, but the other person continues to do so with the knowledge of the owner, then the owner has given implied permission to drive the automobile. See Turner v. Alexander, 690 So.2d 756 (La. Ct. App. 1997). Given Reginald Moseby’s statement in his deposition that Ms. Moore knew he continued to drive her Cadillac even though she had told him not to do so, there is in the record a genuine issue of material fact regarding whether Ms. Moore had impliedly permitted Moseby to drive her Cadillac.
The possibility of Ms. Moore’s having given Reginald Moseby implied permission to drive her Cadillac notwithstanding, Progressive Insurance Company asserts that there is no genuine issue of material fact regarding whether Ms. Moore gave Moseby permission to drive her car on the night that he ran over Otha Jordan. Moseby’s deposition testimony, noted above, would eliminate the existence of any genuine issue of material fact regarding whether Ms. Moore gave permission to Moseby to drive her Cadillac on the night in question, if it is deemed credible. Of course, in evaluating Progressive Insurance Company’s contention that there is no genuine issue of material fact regarding Moseby’s conduct on the night in question and Ms. Moore’s conduct, as reported by Moseby, the circuit court should have considered Moseby’s deposition and all inferences based thereon in the light most favorable to appellants. See Nelson v. River Valley Bank & Trust, supra.
A review of the record reveals several circumstances that would cause a reasonable fact-finder to doubt the truthfulness of Moseby’s deposition testimony. Although there is little Arkansas authority directly on point addressing whether a motion for summary judgment should be denied because of the lack of credibility of the moving party’s supporting evidence, there is ample persuasive authority in federal court decisions interpreting the federal version of our summary-judgment rule, Ark. R. Civ. P. 56, which is Federal Rule of Civil Procedure 56. We consider federal court decisions interpreting Fed. R. Civ. P. 56 to be highly persuasive authority. See Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995); Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646 (1964). Accord Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ark. App. 1980)(federal court decisions interpreting the Federal Rules of Civil Procedure are “of significant precedential value”).
Federal court decisions interpreting the Federal Rules of Civil Procedure establish that a trial court may deny a motion for summary judgment based on the lack of credibility of the moving party’s affiants or witnesses. A leading treatise on federal civil procedure summarizes the case law on this point:
Doubts as to the credibility of the movant’s affiants or witnesses may lead the court to conclude that a genuine issue [of material fact] exists. Indeed, as the Advisory Committee states in its Note . . . “Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate.”
Clearly, if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied and the case allowed to proceed to trial, inasmuch as this situation presents the type of dispute over a genuine issue of material fact that should be left to the trier of fact. Thus, for example, if conflicting testimony appears in affidavits and depositions that are filed, summary judgment may be inappropriate as the issues involved will depend on the credibility of the witnesses.
10A Charles Allan Wright et al., Federal Practice and Procedure § 2726 at 440-47 (1998)(internal citations omitted). In essence, these federal decisions hold that the obvious doubtfulness of the moving party’s supporting evidence can create a genuine issue of material fact for a jury. Moreover, even a moving party’s witness’s mere interest in the result of a suit requires dismissal of a summary-judgment motion and submission of the case to a jury. Sartor v. Ark. Natural Gas Corp., 321 U.S. 620 (1944)(interpreting Fed. R. Civ. P. 56). Accord Independent Ins. Consultants, Inc. v. First State Bank, 253 Ark. 779, 489 S.W.2d 757 (1973)(Fogleman, J„ dissenting and citing Sartor).
Several statements Reginald Moseby made during his deposition reveal his potential bias in Ms. Moore’s favor. Moseby’s bias establishes a motive for him to tailor his account of what happened between Ms. Moore and him on the night in question. In his deposition Moseby stated that he and Ms. Moore had “been together” for almost twelve years, that they had three children and that they lived together. Fie also stated that Ms. Moore was still his girlfriend. Moreover, Moseby admitted that Ms. Moore had spoken with him about the case. A reasonable fact-finder could doubt the truthfulness of Moseby’s deposition testimony because his bias in favor of Ms. Moore would lead him to help her avoid the adverse financial consequences if she were found to have given him permission to drive her Cadillac on the night in question, which could, in turn, render Progressive Insur- anee Company, as Ms. Moore’s automobile liability insurer, liable to the estate of Otha Jordan. A reasonable fact-finder could conclude that Moseby would, at Ms. Moore’s request, tailor his testimony to shield Progressive Insurance Company from liability and, thereby, help her avoid an increase in her insurance premium or the outright cancellation of her automobile insurance. A reasonable fact-finder could also conclude that Moseby’s bias in favor of Ms. Moore would lead him to testify falsely in order to remove her as a defendant in the wrongful death action brought by appellants. Summary judgment in favor of Progressive Insurance Company, on the basis that there was no genuine issue of material fact as to whether Teresa Moore had given Reginald Moseby permission to drive her Cadillac, would set up a res judicata defense for Ms. Moore if she were sued by appellants on the theory that she was the proximate cause of Otha Jordan’s death in that she negligently entrusted her Cadillac to Moseby or acted negligently in continuing to let him have access to her Cadillac. A trial court’s grant of summary judgment can support a res judicata defense to a subsequent cause of action based on the same facts. See 46 Am. Jur. 2d Judgments § 606 at 880 (1994).
Another statement that Moseby made in his deposition that could cause a reasonable fact-finder to doubt his testimony in favor of Ms. Moore and Progressive Insurance Company was his admission that he was, at the time he was deposed, a convicted felon who was serving a two-year sentence for negligent homicide. A reasonable fact-finder could conclude that a convicted felon currently serving a sentence of imprisonment would not be deterred by the possibility of a perjury conviction from giving false testimony in a deposition taken in a civil suit. During his deposition, Moseby was cross-examined about what he knew about perjury, and he stated that he knew what perjury was.
Finally, the circumstance under which Progressive Insurance Company took Moseby’s deposition could suggest to a reasonable fact-finder that Moseby tailored his deposition to enable Ms. Moore and the insurance company to obtain summary judgment. As noted above, Moseby admitted that Ms. Moore had spoken to him about the case. Progressive Insurance Company deposed Moseby only after its initial motion for summary judgment had been denied. In its order denying the initial summary-judgment motion the circuit court stated, in pertinent part:
Exhibit “A” of [appellants’] which is referred to as a statement of [Moseby] by the Dermott Police Department reflects that Moseby refers to Moore as his wife which [gives] rise to the question of whether or not Moseby had expressed or implied permission to drive the vehicle.
The Court is of the opinion that a genuine issue of material facts exists. Whether or not permission to use the vehicle existed and/or whether such permission was expressed or implied cannot be decided from the evidence presented herein. Thus, the motion for summary judgment is denied.
Appellants introduced “Exhibit A” into evidence before the circuit court initially denied Progressive Insurance Company’s summary-judgment motion. This exhibit is an in-custodial statement that Moseby gave to a Dermott police officer at 3:10 p.m., July 22, 1995, about sixteen and one-half hours after Moseby had run over Otha Jordan. Therein, Moseby described his confrontation with Ms. Moore on the night in question at the home of his in-laws as follows:
I ask[ed] my wife (Ms. Moore) why she had left me at my grandmother’s house and to come on and let’s go home. At that time my brother and sister-in-law (Robert and Brenda Staggers) said that she is not going anywhere. I then ask[ed] my wife (Ms. Moore) if she was coming with me, [and] at that time the in-laws started hitting on me. . . I reached on the couch and got the car keys, ran outside, got in the car and left.
Comparison of the pertinent part of the circuit court’s initial order denying Progressive Insurance Company’s summary-judgment motion with the pertinent part of Moseby’s in-custodial statement establishes that the circuit court must have concluded that Moseby’s assertion in his in-custodial statement, “I reached on the couch and got the keys, ran outside, got in the car and left” supported the inference that Moseby had either the express or implied permission of Ms. Moore to drive her Cadillac on the night in question. Examination of Moseby’s deposition reveals that he stated that during the confrontation at his in-laws’ home Ms. Moore told him not to drive her automobile, that the keys to the automobile were on a couch, that Ms. Moore reached for the keys and that he took the keys out of her hand. The precision of Moseby’s testimony on this point, when considered in light of Progressive Insurance Company’s renewal of its summary-judgment motion on proof negating the inference of Ms. Moore’s expressed or implied permission to Moseby to drive her automobile, which the circuit court drew based on Moseby’s in-custodial statment, could suggest to a reasonable fact-finder that Moseby tailored his deposition testimony on this point to benefit Ms. Moore and Progressive Insurance Company. It is possible for testimony to be so precise and positive that the witnesses’s credibility is undermined. See Loftin v. Goza, 244 Ark. 373, 425 S.W.2d 291(1968).
In summary, based upon statements Moseby made in his deposition, a reasonable fact-finder could conclude from his testimony that he did not have Ms. Moore’s implied permission to drive her Cadillac on the night in question was not true. Based upon Moseby’s statements, a reasonable fact-finder could conclude that Moseby was biased in Ms. Moore’s favor. Moreover, Moseby admitted that Ms. Moore had discussed the case with him. In addition, a reasonable fact-finder could conclude that because Moseby admitted he was a convicted felon serving a sentence of imprisonment, he would not be deterred from testifying falsely in his deposition by the possibility of a perjury conviction. Finally, a reasonable fact-finder could conclude that Moseby tailored his deposition testimony about the circumstances on the night in question under which he obtained the keys to Ms. Moore’s Cadillac in order to negate the part of his in-custodial statement to the Dermott police that provided the factual basis for the circuit court’s initial order denying Progressive Insurance Company’s summary-judgment motion. If there exists in the rec ord specific bases for impeachment of the moving party’s witness, summary judgment should be denied. Wright, supra.
For the reasons set forth above, we reverse the Chicot County Circuit Court’s order granting appellee Progressive Insurance Company’s summary-judgment motion and remand to the circuit court further proceedings.
Reversed and remanded.
Jennings and Crabtree, JJ., agree.
General principles of issue preclusion do not bar renewal of a summary judgment motion in a cause of action if the renewal is accompanied by an affidavit or other supporting proof that rebuts the basis for the initial denial of the motion. See Head v. United States Fidelity & Guaranty Co., 247 Ark. 928, 448 S.W.2d 941 (1970). In any event, because the denial of a summary judgment motion does not terminate a cause of action, the order of denial is subject to revision by the trial court before entry of a final judgment in the case. Ark. R. Civ. P. 54(b).
Reginald Moseby admitted that he had been convicted of negligent homicide. A person commits negligent homicide if, while driving an automobile while intoxicated, he or she negligently causes the death of another person. Ark. Code. Ann. § 5-10-105(a)(1) (Repl. 1997). “Drunk driving” negligent homicide is a Class D felony. Ark. Code Ann. § 5-10-105(a)(2) (Repl. 1997). | [
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Karen R. Baker, Judge.
A jury in Washington County Circuit Court convicted appellant Stephen Brent Kelley of two counts of computer child pornography and one count of internet stalking of a child. He was sentenced to sixty months’ imprisonment and a fine of $1500 for each of the pornography convictions and sentenced to eighty-four months’ imprisonment for the stalking conviction. His sentences were to run consecutively. In addition, the jury recommended that appellant receive counseling while incarcerated. Appellant has three arguments on appeal. First, appellant argues that the trial court erred in denying his motion for a directed verdict where the State lacked sufficient evidence of appellant’s mental state to prove beyond a reasonable doubt that appeflant believed the victim’s age was that of a thirteen-year-old girl. Second, appellant argues that the trial court erred in denying his motion to declare the Arkansas computer pornography statute unconstitutional under the United States and Arkansas Constitutions and to dismiss charges against appellant pursuant to that statute. Third, appellant argues that the trial court erred in denying his motion for a mistrial during the sentencing phase of his trial after the State commented to the jury regarding appellant’s decision not to testify at both the guilt phase and the sentencing phase of his trial. We affirm on all points.
Between August 10, 2006, and October 4, 2006, appellant engaged in online chats with a person identified on Yahoo internet service as “Kelly Mason,” who used the screen name “Lil Kelli K.” Unbeknownst to appellant, “Kelly Mason” or “Lil Kelli K” was actually Detective Cory Roberts of the Fayetteville Police Department, Special Investigations Unit. Appellant and “Kelly” engaged in numerous online chats. During the first online chat, “Kelly” told appellant she was thirteen years old. Appellant responded that he was twenty-three years of age and noted the ten-year age gap between them. During the remaining two months of online chats, appellant discussed with “Kelly” subjects such as her age, her mother, and her sister, and told her that he would get into trouble if they were caught. He also questioned her about whether she had begun “bleeding” yet and whether she was a virgin. He warned her not to tell anyone about their chats. After the first chat, “Kelly” emailed appellant a picture. The picture was blurry in order to protect the woman in the photo, who at the time was sixteen or seventeen years of age. Closer to the end of the online chats, “Kelly” sent appellant another photo of the same woman when the woman was twenty-six years of age, but that photo had been age-regressed by staff at the National Center for Missing or Exploited Children to depict how she might have looked at age thirteen or fourteen.
The online chats between appellant and “Kelly” continued for almost two months. During the online chats, appellant initiated discussion about meeting “Kelly.” After many online chats, a date and a meeting place were arranged. “Kelly” gave appellant directions to the White Oak Station on Gregg Street in Fayetteville, and appellant gave “Kelly” a description of the car he would be driving when he met her. As planned, on October 5, 2006, appellant arrived at White Oak Station to meet “Kelly.” When appellant arrived at the location, he was met by Detective Roberts, who placed him under arrest.
After a trial on the charges filed against appellant, the jury-found him guilty of two counts of computer child pornography and one count of internet stalking of a child. This appeal followed.
I. Motion for Directed Verdict
Appellant’s first argument on appeal is that the trial court erred in denying his motion for a directed verdict where the State lacked sufficient evidence of appellant’s mental state to prove beyond a reasonable doubt that appellant believed the victim’s age was that of a thirteen-year-old girl.
The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. At 666, 74 S.W.3d at 594. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). We defer to the jury’s determination on the matter of witness credibility. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). Jurors do not and need not view each fact in isolation, but rather may consider the evidence as a whole. Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001). The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id. at 288, 58 S.W.3d at 391.
Pursuant to Arkansas Code Annotated section 5-27-603(a)(2) (Repl. 2006), “A person commits computer child pornography if the person knowingly . . . [u] tilizes a computer online service, internet service, or local bulletin board service to seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice a child or another individual believed by the person to be a child, to engage in sexually explicit conduct.” In addition, pursuant to Arkansas Code Annotated section 5-27-306(a), a person commits the offense of internet stalking of a child if the person, being twenty-one or older, “knowingly uses a computer online service, internet service, or local internet bulletin board service to. . . [s] educe, solicit, lure, or entice an individual that the person believes to be fifteen (15) years of age or younger in an effort to arrange a meeting with the individual for the purpose of engaging in . . . [s] exual intercourse; [s]exually explicit conduct; or [d] eviate sexual activity as defined in § 5-14-101.” Deviate sexual activity is defined in Arkansas Code Annotated section 5-14-101(l)(A) and (B) (Repl. 2006) as, “the penetration, however slight, of the anus or mouth of a person by the penis of another person; or the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person.”
Appellant asserts that the evidence was insufficient in two respects. First, he argues that the State failed to establish beyond a reasonable doubt that appellant believed the victim was only thirteen years old. We disagree. In the first chat between appellant and “Kelly,” “Kelly” told appellant that she was only thirteen years old. Moreover, appellant noted his age of twenty-three and remarked about the ten-year age gap between them. During the first chat, appellant made several references to “Kelly’s” youth and the fact that he would be in “trouble” if she told anyone about their chats. During the months of online chats, appellant continued to make comments about getting into “trouble” if “Kelly” told anyone about their chats and inquired as to whether or not she was a virgin. Also during the chats, appellant made reference to “Kelly’s” mom, her sister, her youth, her inexperience, and the fact that she might bleed because “Kelly” had not had sexual intercourse before. At no time during the online chats did it appear that appellant was confused about “Kelly’s ” age, nor did he indicate that he thought she was anything other than thirteen years of age. Also, the first photo emailed to appellant was of a young woman who was sixteen or seventeen years of age. The image of the woman in the photo was very blurry in order to protect the identity of the woman in the photo. A second photo emailed to appellant was of the same woman at age twenty-six; however, the photo had been age-regressed by the National Center for Missing or Exploited Children to depict how the woman would have looked at age thirteen or fourteen. An overview of the communication between appellant and “Kelly” reveals that appellant was clearly aware of “Kelly’s” age. Under such facts, the jury did not have to resort to speculation and conjecture to conclude from the evidence that appellant believed that “Kelly” was thirteen years old.
Second, appellant asserts that the evidence was insufficient that he knowingly arranged a meeting with “Kelly.” Appellant contends that it was “Kelly” who made the arrangements to meet. However, Detective Roberts’s testimony showed that during the first conversation, appellant told “Kelly” that he wanted to meet with her and also again acknowledged that if they were caught, he could get into trouble. Also during this first chat, appellant initiated conversation about “Kelly” “sneaking out” to meet him in person, and throughout the conversation, appellant made several references to meeting “Kelly.” Detective Roberts testified that during the second chat, he suggested that appellant and “Kelly” meet at the park; however, Detective Roberts testified that he suggested the park only after appellant initiated the discussion of meeting. During the third chat, appellant and “Kelly” again discussed meeting at the park. It was at this point that appellant also began discussing sexually explicit acts, such as instructing “Kelly” about how to masturbate and repeatedly asking her if she had tried masturbation. Over the course of the chats, appellant continued to make plans regarding the details of the meeting. During a subsequent chat, appellant told “Kelly” to wear a skirt to the meeting. Appellant also described the truck he would be driving when he met her. “Kelly” asked appellant to bring ice cream and later asked appellant to bring alcohol. During subsequent chats, appellant initiated discussion of oral sex and intercourse between himself and “Kelly.” Under these circumstances, the jury could reasonably infer that appellant knew the age of his victim and that he knowingly arranged a meeting with “Kelly.” We affirm on this point.
II. Constitutionality of the Arkansas Computer Pornography Statute
In appellant’s second point on appeal, he argues that the trial court erred in denying his motion to declare the Arkansas computer pornography statute unconstitutional under the United States and Arkansas Constitutions and to dismiss charges against appellant pursuant to that statute. Appellant asserts that Arkansas Code Annotated section 5-27-603 is overbroad and unconstitutional on its face and as applied to appellant and that it criminalized a substantial amount of lawful speech with no compelling State interest in doing so. We have recently articulated our standard for reviewing the constitutionality of statutes:
Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. If it is possible to construe a statute as constitutional, we must do so. Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. We have said that a law is unconstitutionally vague under due process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited, and it is so vague and standardless that it allows for arbitrary and discriminatory enforcement. As a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the facts at issue. When challenging the constitutionality of a statute on grounds of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning; if, by his action, that individual clearly falls within the conduct proscribed by the statute, he cannot be heard to complain.
Osborne v. State, 94 Ark. App. 337, 230 S.W.3d 290 (2006) (citations omitted).
At trial, appellant sought to have the computer child pornography statute declared unconstitutional. The circuit court found that the statute did not restrict lawful speech, but rather addressed the solicitation of minors. Specifically, the trial court ruled as follows:
I think clearly the statute at issue there is distinguishable from the statute at issue in this particular case, the Kelley case, in that the statute at issue in our case here today does not in my judgment at least restrict lawful speech and this statute at issue addresses solicitation of minors. I think there’s a clear distinction there so for that reason I’m going to deny that motion.
In support of his argument, appellant asserts that this case is similar to the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), and requires dismissal of his conviction. In Ashcroft, the Supreme Court held that two sections of the federal Child Pornography Prevention Act of 1996, codified at 18 U.S.C. § 2256(8)(B) and (D), were unconstitutional as overbroad and restrictive of free speech. The two code sections at issue in Ashcroft extended the federal prohibition against child pornography to sexually explicit images that appear to depict minors (“virtual children”) but were produced without using any real children. In Ashcroft, the Supreme Court held:
To preserve these freedoms, and to protect speech for its own sake, the Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. See Kingsley Int’l Pictures Corp., 360 U.S., at 689; see also Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) (“The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it”). The government may not prohibit speech because it increases the chance an unlawful act will be committed “at some indefinite future time.” Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam). The government may suppress speech for advocating the use of force or a violation of law only if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). There is here no attempt, incitement, solicitation, or conspiracy. The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.
Ashcroft, 535 U.S. at 253-54. However, Ashcroft is distinguishable from the case at hand because the images at issue in the Ashcroft case involved ideas rather than conduct. Specifically, the images in Ashcroft did not involve the “attempt, incitement, solicitation, or conspiracy” to engage a child in sexually explicit conduct. Id. at 253.
Here, it is appellant’s action that sets this case apart from Ashcroft, his using an online service to arrange a meeting between appellant and “Kelly,” soliciting “Kelly” to engage in sexually explicit conduct at the meeting, and to arrive to meet “Kelly” at the specific time and meeting place agreed upon during the online conversations. Unlike Ashcroft, the case at hand does not involve ideas, but actions; thus, Ashcroft is inapplicable to these facts.
Appellant also attempts to assert that this case lacks an important element: a victim. However, appellant still intended to solicit, lure, or entice a person he believed to be thirteen years of age. See Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003) (holding that the fact that Andrea was merely a fictional character created by the North Little Rock Police Department has no relevance in this challenge to the sufficiency of the evidence; if there is substantial evidence that Mr. Kirwan intended to rape an eleven-year-old girl and took a substantial step toward the commission of that crime, the verdict would be affirmed even though the attendant circumstances were not as he believed them to be). Therefore, to the extent appellant argues that there was no harm done in this case because “Kelly” was actually a police detective, and not an actual thirteen-year-old girl, his argument has no merit. We find that the trial court did not err in denying appellant’s motion to declare the Arkansas computer pornography statute unconstitutional and affirm on this point.
III. Motion for a Mistrial
Appellant’s third point on appeal is that the trial court erred in denying his motion for a mistrial during the sentencing phase of his trial after the State commented to the jury regarding appellant’s decision not to testify at both the guilt phase and the sentencing phase of his trial. We do not address the merits of this argument because appellant failed to make a contemporaneous objection below.
In Smith v. State, 330 Ark. 50, 53-54, 953 S.W.2d 870, 871-72 (1997), our supreme court held:
In order to be timely, an objection must be contemporaneous, or nearly so, with the alleged error. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). To preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 498 U.S. 1048 (1991). Where the allegation of error concerns a statement made by the prosecutor during argument, the defendant must make an immediate objection to the statement at issue in order to preserve the allegation for appeal. Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996) (citing Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987)). In Butler, this court specifically rejected the Eighth Circuit Court of Appeals’ holding in Lange v. Schultz, 627 F.2d 122 (8th Cir. 1980), that counsel may reserve his or her objection to statements made in closing argument until the end of the argument, before the case is submitted to the jury. This court held:
We decline to follow the Eighth Circuit’s position and instead require a timely objection, made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.
Butler Mfg. Co., 292 Ark. 198, 202, 729 S.W.2d 142, 144. See also Steffen v. State, 267 Ark. 402, 590 S.W.2d 302 (1979). Such reasoning is equally applicable to alleged errors made in opening statement.
Likewise, motions for a mistrial must be made at the first opportunity. Smith, 330 Ark. at 54, 953 S.W.2d at 872 (citing Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996)). In Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988), the defendant argued on appeal that the prosecutor’s closing argument commented on the defendant’s failure to testify as evidence of guilt; however, our supreme court held that because the defendant failed to make a contemporaneous objection at trial, the argument was not preserved for our review. In Ronning, the court stated: “In hundreds of cases we have repeated the fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.” 295 Ark. at 235, 748 S.W.2d at 637.
Here, the particular comments were made by the prosecutor throughout the closing statement. Appellant failed to make any objection, or to move for a mistrial, until the prosecutor had finished his argument. Accordingly, this issue was not preserved for our review, and we do not address it.
Based on the foregoing, we affirm appellant’s convictions.
Hart and Heffley, JJ., agree. | [
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Crabtree, Judge.
Appellant Man Kinnebrew appeals the decision from the Workers’ Compensation Commission finding that the appellant has failed to prove by a preponderance of the evidence that the injury he sustained on March 14, 1996, occurred during a time that the appellant was performing employment services. We affirm.
The appellant is a long-haul truck driver employed by the appellee, Litde John’s Trucks, Inc. The appellant was paid by the mile, plus an occasional per diem.
On March 14, 1996, the appellant delivered a load of cargo to a farm company in New Braunfels, Texas, at approximately 8 a.m. Appellant testified that he was then advised by his dispatcher to proceed to a truck stop in San Antonio, Texas, and wait because they might have a load for him there the next day. Appellant phoned the dispatcher and advised of his arrival at the Flying J Truck Stop. He then parked his truck and was off duty until he received further instructions the following day.
The Department of Transportation requires truck drivers to maintain a detailed “Operator’s Log” to document driving and off-duty times. Such regulations require the driver to be off duty for eight hours after ten hours of driving time. The appellant’s operator’s log for March 14, 1996, the date of the incident giving rise to this claim, reflects that he arrived in San Antonio, Texas, at 11 a.m. and was off duty until 7 p.m. During his time off, the appellant went into the truck stop and did a little shopping. He cleaned the glass in his truck, had the truck cleaned, and then gathered clothes for washing. He then took a number in the shower facility line and waited about an hour and a half for his turn. At approximately 6:45 p.m., a shower finally became available for his use. When he entered the shower stall, he stepped onto a slippery substance, causing him to fall and hit his neck against a ledge and injure his left shoulder as he tried to brace himself.
The appellant was diagnosed with a C4-5 spondylotic bar and underwent an anterior C4-5 diskectomy with fusion on June 19, 1996. The appellant has also been diagnosed with impingement of left rotator cuff or supraspinatus tendon with tendinitis secondary to bulky degenerative left acromioclavicular joint hypertrophy. The administrative law judge (ALJ) found the appellant’s claim compensable. Little John’s timely appealed the decision to the full Commission. In its opinion and order filed June 10, 1998, the Commission reversed and remanded finding that the claim was not compensable because the appellant was not performing employment services at the time of his injury.
This court reviews decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. If reasonable minds could reach the result shown by the Commission’s decision, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).
This court has affirmed on a number of occasions the Commission’s factual findings that a claimant injured while performing a personal task, even while on the employer’s premises, was not performing “employment services” for the purposes of compensability under Act 796 of 1993. Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). Even if the appellant was acting within the course of his employment under the “traveling salesman exception,” the evidence still does not support a finding that the appellant was performing “employment services” when he fell while taking a shower while off duty. Showering is not inherently necessary for the performance of the job he was hired to do. Consequently, we hold that the full Commission did not err when it found that the appellant was not performing employment services at the time of his injury.
Affirmed.
Robbins, C.J., and Pittman, J., agree. | [
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John Mauzy Pittman, Judge.
The appellant in this case, Kendell Camp, was convicted at a jury trial of third-degree domestic battery for having beaten his wife. He was fined $500 and ordered to pay $211 in court costs. On appeal, appellant contends that the trial court erred in allowing a police officer to testify as to statements made by the victim and in admitting a report made by the officer about his interview of the victim. He also contends that the trial court erred in admitting an affidavit that was filed by the victim in support of her request for an order of protection. We affirm.
At trial, the victim refused to testify. Over appellant’s objection, the State was then allowed to introduce Officer Barry Holt’s testimony concerning the victim’s statements to the officer at the hospital some three hours after the alleged incident and the officer’s written report of that interview. The trial court expressly found that the evidence was admissible under both Ark. R. Evid. 803(2) (excited-utterance exception) and 804(b)(5) (residual-hearsay exception when witness is unavailable).
In his first point for appeal, appellant argues that the trial court erred in admitting the the officer’s testimony and report under Rule 804(b)(5). He makes no argument that the trial court’s ruling under Rule 803(2) was erroneous. Therefore, since one of the trial court’s stated grounds for having admitted the officer’s testimony and report is not challenged on appeal, we need not decide whether the trial court erred in admitting the evidence. In other words, even if we were to assume that appellant’s argument as to the applicability of Rule 804(b)(5) was correct, we still would not reverse in light of appellant’s failure to attack the trial court’s independent, alternative basis for its ruling. See Ark. R. App. P.—Crim. 14; Pearrow v. Feagin, 300 Ark. 274, 278-79, 778 S.W.2d 941, 943 (1989) (where trial court expressly based its decision on two independent grounds and appellant challenged only one on appeal, supreme court affirmed without addressing either).
Also admitted over appellant’s hearsay objection was an affidavit executed by the victim on the day after the battery. The affidavit was apparently filed with the chancery court, in conjunction with the victim’s complaint for divorce from appellant, in an effort to obtain an order of protection. The trial court found this evidence admissible under Rule 804(b)(5). On appeal, appellant contends that the trial court erred in so ruling. The State argues that the affidavit was cumulative to the collective information provided to the jury through the officer’s testimony and report, and that any error in its admission was harmless. Appellant argues that the affidavit was not merely cumulative because it contained “substantially more information than was originally provided to Officer Holt.” Again, we conclude that we need not decide whether the trial court erred in admitting the evidence.
The law is well settled that prejudice is not presumed, and we will not reverse absent a showing of prejudice. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Our courts have refused to find prejudicial error where the evidence in question was merely cumulative to evidence otherwise admitted at trial. See Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992); Shaver v. State, 37 Ark. App. 124, 826 S.W.2d 300 (1992).
Here, we conclude that the information contained in the affidavit was cumulative to that which was introduced through the officer’s testimony and his report, whose introduction appellant has failed to demonstrate was improper. While appellant argues that the affidavit contained substantially more information, we cannot agree. The affidavit detailed the physical attack on the victim for which appellant was prosecuted. It further stated that appellant had abused the victim for some ten years and had threatened to kill her if she went to the police. According to appellant’s abstract of the record, this same information was contained in either the officer’s testimony or his written report or both. Under these circumstances, we conclude that the information in the affidavit was merely cumulative to the evidence otherwise introduced at trial, and any error in its admission was not prejudicial.
Affirmed.
Robbins, C.J., and Bird and Meads, JJ., agree.
Hart and Neal, JJ., dissent.
Appellant does attack this ruling in his reply brief, but an argument cannot be raised for the first time in a reply brief. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).
The dissenting judges concede that appellant abandoned the excited-utterance argument by not arguing it in his initial brief. Nevertheless, they argue that, because the trial court’s ruling on that question was wrong, we must reverse. Specifically, they argue, “[A]ll we can tell is that the appellant abandoned his Rule 803(2)-based allegation of error. The appellant’s abandonment of this issue does not, however, permit the majority to assume that the trial court’s Rule 803(2) decision was correct. If the trial court’s Rule 803(2) ruling was correct, the majority should explain why.” In other words, according to the dissent, we cannot affirm a judgment unless we search the record and conclude that every ruling adverse to an appellant was, in fact, a correct one, even in the absence of argument by the appellant on appeal. While a rule somewhat akin to that may be the law in cases where one is sentenced to life imprisonment or death, it simply is not the law in other cases. See Ark. R. App. P.—Crim. 14; see also Ark. Sup. Ct. R. 4-3(h). When an issue is not argued on appeal in an ordinary case, the issue is considered abandoned and is not addressed. See Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983); see also King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989); Flowers v. State, 30 Ark. App. 204, 785 S.W.2d 242 (1990). We do not hold that the trial court’s ruling under Rule 803(2) was, in fact, correct; we do not reach the issue. We hold that, by abandoning the argument on appeal, appellant has waived the right to have the propriety of the ruling decided.
The dissenting judges next maintain, as did appellant’s counsel at oral argument, that appellant did argue in his first brief that the court’s ruling under Rule 803(2) was erroneous because he stated as much in his “argument heading.” This position is interesting and might be debatable had it not long ago been decided that this was not the law. See Brockwell v. State, 260 Ark. 807, 545 S.W.2d 60 (1976) (mere statement of point for appeal is insufficient argument for reversal; point waived if not argued); see also Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997) (mere mention of an alleged error in a subheading of one’s brief, without any argument or citation to authority, will not be addressed).
The dissent further maintains that appellant did, in fact, raise the excited-utterance argument in his initial brief because “he touch[ed] on facts related to the excited utterance exception.” However, with all due respect, to discern this argument on the basis of the hints and traces mentioned in the dissent (i.e., appellant’s eight-word parenthetical mention that the victim’s statement was made three hours after the battery, which mention appears in a paragraph devoted to the residual-hearsay exception of Rule 804(b)(5)) requires a degree of sensitivity bordering on precognition. A fair reading of the briefs in this case leads to the inescapable conclusion that appellant simply abandoned the excited-utterance argument in his brief (a fact that the dissent both admits and denies), that the State discussed the issue in its own brief in such a manner that awakened appellant’s interest in the argument, and that appellant responded by advancing the argument for the first time in his reply brief.
While appellant argues on appeal that his rights under the Confrontation Clause were violated by admission of the affidavit, his abstract fails to reflect that he objected to introduction of the affidavit on that ground below. Therefore, we will not analyze the admission of the affidavit under the constitutional standard of “harmless beyond a reasonable doubt.” See Griffin v. State, 322 Ark. 206, 221, 909 S.W.2d 625, 633 (1995).
The dissenting judges maintain that appellant’s Confrontation Clause argument was properly preserved when, immediately after the trial court denied appellant’s hearsay objection by reference to Rule 804(b)(5), appellant asked the court for the basis of its finding that the statement was trustworthy. They argue that, since case law holds that ‘“particularized guaranties of trustworthiness’ of evidence is the touchstone of a Confrontation Clause argument,” appellant’s request effectively raised the constitutional argument. However, as the dissent notes, “equivalent circumstantial guarantees of trustworthiness” is an express requirement under the terms of Rule 804(b)(5), the very rule that the trial court had just referenced and which it again referenced in response to appellant’s request. The law is clear that, in order to preserve an argument for appeal, one must make a specific objection sufficient to apprise the trial court of the particular error alleged. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Anthony v. State, 332 Ark. 595, 967 S.W.2d 552 (1998); Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). An appellant cannot change the grounds for his objection on appeal, but is bound by the nature and scope of his argument at trial. Ayers v. State, supra. It is also clear that a hearsay objection is insufficient to preserve for appeal a Confrontation Clause argument. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995); Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). Under the circumstances presented here, we cannot conclude that the mere mention of the word “trustworthy” was sufficient to apprise the trial court of any Confrontation Clause argument.
The dissenting judges concede that we have correctly described the contents of appellant’s abstract. They also acknowledge the longstanding rule that we will not go to the record to reverse. Yet, they proceed to make two inconsistent and faulty arguments. First, the dissent states that the majority’s conclusion that the affidavit was cumulative to the officer’s report is based on speculation and cannot stand because, while appellant’s abstract indicates that some unknown portions of the report were excised before it went to the jury, the abstract “fails to show what information was excised.” Second, the dissent argues that this case should be reversed on account of something that they say appears in the transcript but not in appellant’s abstract. We cannot agree with either of these arguments. The first is based on the dissenting judges’ assumption, unsubstantiated by the abstract, that the abstracted version of the officer’s report is not the redacted version shown to the jury. In any event, both arguments are contrary to longstanding rules governing appellate practice. Rule 4-2(a)(6) of the Rules of the Arkansas Supreme Court requires that an appellant present us with an abstract of those parts of the record that are necessary to an understanding of the issues presented for decision. Clearly, the burden is on an appellant to bring up a record sufficient to demonstrate reversible error. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). The record on appeal is limited to that which is abstracted. Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996) (reversing the court of appeals and reinstating a conviction where this court had gone to the record to reverse). We will not examine the transcript of a trial to reverse a trial court. Id. Here, as abstracted by appellant, the affidavit was cumulative to the report. | [
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Sarah J. Heffley, Judge.
Appellant appeals the Commission’s order that reversed the order of the administrative law judge (ALJ) and found that appellant had failed to prove that he is entitled to additional temporary total disability benefits. On appeal, appellant contends that the Commission’s opinion is not supported by substantial evidence; that the Commission mischaracterized critical evidence; and that the Commission unlawfully required appellant to prove the continuation of his healing period with objective evidence. We agree that there is a lack of substantial evidence to support the Commission’s decision; therefore, we reverse and remand.
Appellant sustained an admittedly compensable back injury on August 16, 2004, while attempting to load a boat onto a trailer. Appellant was examined by his family physician, Dr. Robert Daniels, on August 18, 2004. An MRI performed on August 20, 2004, revealed diffuse degenerative changes throughout appellant’s lumbar spine and a foraminal disc herniation at L5-S1. Appellant had no history of prior back problems or back injuries.
On October 1, 2004, appellant was examined by Dr. Michael Atta, appellees’ company physician, whose examination revealed tenderness along the left paralumbar musculature with mild muscle spasms noted. Dr. Atta assessed appellant’s condition as low back pain with L5-S1 herniated nucleus pulposus and referred appellant to Dr. James Arthur for a neurosurgical evaluation “to determine further management of his current condition.” Dr. Atta also ordered that appellant be kept off work due to the narcotic medications he was taking.
On October 13, 2004, appellant was seen by Dr. James Arthur, a neurosurgeon. In his report of that visit, Dr. Arthur noted that appellant had “diminished range of motion in the lumbar spine with paraspinous muscle spasm” and was suffering from a “fairly significant lumbar strain injury.” Dr. Arthur recommended a lumbar epidural steroid injection and a rehabilitative exercise program prior to appellant returning to work.
Appellant was next seen by Dr. Bruce Smith, an orthopedic surgeon, on October 25, 2004. Dr. Smith noted that appellant had some tenderness in the left paralumbar area and some subjective radicular symptoms into the left leg. Dr. Smith also acknowledged that the lumbar MRI showed a disc bulge at L5-S1, but stated that “it is really on the right inconsistent with his present clinical findings.” Dr. Smith recommended a lumbar epidural steroid injection and physical therapy. He also stated that appellant remained unable to return to work.
Appellant underwent a lumbar spine epidural steroid injection on October 26, 2004, and followed up with Dr. Smith on November 3, 2004. Dr. Smith noted that appellant was “basically unchanged” since the epidural steroid injection and was still complaining of pain in the left paralumbar area. Dr. Smith concluded that appellant had suffered a lumbar strain, which was “resolving,” and that there was “nothing surgical” about appellant’s condition. On November 12, 2004, Dr. Smith released appellant from his care and to full work duty as of November 3, 2004.
Appellant did not return to work and was seen by Dr. Ron Williams, a neurosurgeon, on December 7, 2004. Dr. Williams ordered a repeat MRI of appellant’s lumbar spine, and this MRI showed multilevel degenerative disc disease and a combination of diffuse bulge and spur at the L2-3 and L4-5 levels. After evaluating these MRI findings, Dr. Williams opined that while most of appellant’s pain was on his left, he (Dr. Williams) did not think it was very significant, and there was nothing surgically to be done for appellant. Dr. Williams ordered a second epidural steroid injection and a work evaluation “to see ifit is safe for [appellant] to return to work.”
Appellant underwent a functional capacity evaluation on January 18, 2005. The evaluator found that appellant “put forth inconsistent effort and demonstrates inconsistencies with inappropriate illness responses.” The evaluator concluded that appellant could perform work at the “light” physical demand classification. After the evaluation, appellant returned to Dr. Williams on February 1, 2005, and Dr. Williams noted appellant was still having trouble with his left hip. Dr. Williams recommended a repeat MRI of the back and an MRI of the left hip. After these MRIs were performed, Dr. Williams noted a paralabral cyst on appellant’s left hip and referred appellant to Dr. William Hefley, an orthopedic surgeon.
Appellant saw Dr. Hefley on April 6, 2005. After examining appellant and the MRIs, Dr. Hefley opined that appellant was suffering “discogenic lumbar pain with referred pain into the left lower extremity” and that appellant’s symptoms were not “really reflective of hip pathology.” Dr. Hefley recommended a course of aggressive and well-coordinated lumbar rehabilitation and physical therapy, and he noted that appellant had not had any physical therapy or rehabilitation made available to him in the seven and a half months since his injury. Dr. Hefley also recommended that appellant see a pain management specialist.
Pursuant to Dr. Hefley’s suggestion, Dr. Williams arranged for appellant to receive physical therapy three times a week for six weeks, a total of eighteen sessions. However, only five of these sessions were approved by appellant’s insurance carrier. After these sessions, appellant again saw Dr. Williams, who noted that appellant’s back pain had improved but his hip pain had not. On June 15, 2005, Dr. Williams advised appellant to remain off work until further notice.
On July 10, 2005, appellant was seen by Dr. Barry Baskin for an independent medical evaluation at the appellees’ request. Dr. Baskin opined that appellant’s pain was coming primarily from his back and not from his hip, but he noted that there was “still some question as to what this gentleman’s actual pain producer is.” Dr. Baskin recommended a myelogram and a post-myelogram CT to assist in defining the source of appellant’s pain. Dr. Baskin also stated that appellant had not received adequate physical therapy with only five sessions, and he recommended that appellant undergo a work-hardening program with more extensive physical therapy and reconditioning.
Dr. Williams referred appellant to Dr. Robert Kleinhenz, an orthopedic surgeon, to have the myelogram and post-myelogram CT performed; however, Dr. Kleinhenz discontinued his orthopedic practice and the tests were not performed. On August 22, 2005, Dr. Williams opined, in response to a letter from appellant’s insurance carrier, that he did not know if appellant had reached maximum medical improvement and that appellant’s injury would produce a five percent whole person impairment based on the AMA guidelines.
A hearing was held on February 16, 2006, before the ALJ to determine appellant’s entitlement to additional temporary total disability benefits. Appellees contended that appellant was not entitled to additional temporary total disability benefits because he had reached the end of his healing period on November 4, 2004, after Dr. Smith released him to return to full duty. In his opinion, the ALJ found:
The record here shows that the claimant’s incapacitating symptoms have continued to require medical care, although the respondents have not always provided the reasonably necessary testing and physical therapy recommended by the claimant’s treating physicians, not to mention their own second opinion doctor. ... [T]he record tends to show that the claimant has continued in his healing period and has been incapacitated to earn wages. Even Dr. Baskin indicated that the claimant needed a work-hardening program to assist him back into the workforce.
The ALJ held that appellant was entitled to temporary total disability benefits from November 4, 2004, when his benefits were terminated, until a date to be determined.
The Commission reversed the ALJ in an opinion filed December 12, 2006. The Commission stated that appellant’s history showed that “each time the claimant was released with regard to his low back, he would redirect his complaints to his hip,” but appellant had never been diagnosed with a compensable hip injury. The Commission also stated that “the claimant’s lumbar spine condition, which has been found to be the source of the claimant’s continuing complaints of pain, is degenerative in nature and does not require surgical intervention.” The Commission declared that the medical evidence did not corroborate appellant’s alleged inability to function either at home or in employment and concluded that appellant had “failed to prove by objective medical findings that his physical condition has worsened since his release by Dr. Smith in November of 2004.”
Appellant appealed to the Court of Appeals, and in an opinion delivered October 3, 2007, this court reversed and remanded due to the unclear basis of the Commission’s findings and conclusions. This court noted that, although a claimant must offer objective medical evidence to prove the existence of an injury, objective medical evidence to show that his healing period continues is not required. Because it was unclear to this court whether the Commission believed that the lack of objective medical evidence to show continuance of the healing period was of itself fatal to appellant’s claim, we remanded the case for the Commission to clarify the basis for its decision.
In response, the Commission filed an opinion on November 27, 2007, tracking the language in its first opinion verbatim except for the omission of the paragraph discussing the lack of objective medical findings and the addition of the following paragraph:
In conclusion, the claimant has failed to prove by a preponderance of the evidence that he remained within his healing period and totally incapacitated from earning wages since his release by Dr. Smith in November of 2004. The credible evidence presented in this claim simply does not corroborate the claimant’s self-serving testimony regarding his alleged inability to function. In short, the preponderance of the evidence demonstrates that the claimant sustained a severe lumbar strain on August 16,2004, and regardless of the claimant’s personal beliefs as to whether he is currently disabled as a result of that strain, the evidence does not support a finding that the claimant is, or has been totally incapacitated from earning wages since November of 2004, when he was released by Dr. Smith.
Appellant now brings his appeal to this court once again.
On appeal, appellant argues that the Commission erred in finding that his healing period had ended on November 4, 2004. In determining the sufficiency of the evidence to support the findings of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.
When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary total disability. Searcy Indus. Laundry, Inc. v. Ferren, 92 Ark. App. 65, 211 S.W.3d 11 (2005). The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id. Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002). The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Searcy, supra.
Appellant argues that in this case, no less than five physicians have recommended or requested that he undergo physical therapy, but this treatment has not been adequately provided to him. In addition, there are diagnostic tests, namely the myelogram and post-myelogram CT recommended by appellees’ own medical examiner, which have been requested but not yet performed. Appellant contends that as long as this care and treatment continues to be recommended but not completed, his healing period has not ended.
We agree with appellant that the findings that appellant’s healing period ended on November 4, 2004, and that appellant was not totally incapacitated from earning wages since his release by Dr. Smith, are not supported by substantial evidence. As stated previously, a claimant’s healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Breakfield, supra. In this case, there is treatment, most prominently physical therapy, which has been recommended by a number of appellant’s treating physicians and would be administered for the healing and alleviation of appellant’s condition, but appellees have refused to authorize such treatment. Appellees cannot now rely on that refusal to assert that appellant is receiving no treatment to heal and alleviate his condition.
Regarding the release to full work duty issued by Dr. Smith, we note that Dr. Smith did so after appellant had received only one epidural steroid injection and had not received any physical therapy, even though Dr. Smith himself had recommended appellant undergo physical therapy. We also note that Dr. Smith was one of several physicians treating appellant, therefore the fact that Dr. Smith saw nothing in appellant’s condition that required surgery and released appellant from his care does not necessarily mean that appellant was in fact fully recovered and able to return to work. See Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001) (upholding Commission’s finding that claimant remained in her healing period when only one of several treating physicians found that claimant had reached maximum medical improvement).
In addition, none of appellant’s treating physicians, including Dr. Smith, has ever opined that appellant has reached maximum medical improvement. Cf. Ark. Highway and Transp. Dep’t v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993) (upholding Commission’s determination that claimant’s healing period had ended when treating physician opined that claimant was not expected to improve in any significant amount in the future). Indeed, Drs. Arthur, Smith, Hefley, Williams, and Baskin all appear to believe that intensive physical therapy would improve appellant’s condition and allow him to return to work.
In conclusion, we hold that substantial evidence does not support the findings of the Commission and we therefore reverse the Commission’s decision and remand for an appropriate award of temporary total disability benefits from November 4, 2004 to a date to be determined. See Amaya v. Newberry’s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008) (reversing Commission’s determination that claimant’s healing period had ended when physician who stated claimant had reached maximum medical improvement also stated claimant should receive injections for his back and workers’ compensation should pay for the treatment); Southeast Arkansas Farmers Ass’n v. Walton, 267 Ark. 1118, 597 S.W.2d 603 (Ark. App. 1980) (upholding determination that healing period did not end when treating physician had indicated claimant could return to work but further treatment would be required).
Reversed and remanded.
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Sam Bird, Judge.
Appellant Wilma Lee appeals from a
summary judgment in favor of Mark Martindale, M.D., and Gordon Schally, M.D., arguing that genuine issues of material fact remain as to the doctors’ negligence. We agree that some issues of fact remain as to Dr. Martindale, and we therefore reverse the summary judgment in part as to him. We affirm the summary judgment in favor of Dr. Schally.
In January 2000, Mrs. Indianna Barnes was admitted to Saline Memorial Hospital with respiratory problems. Doctors placed her on a nasogastric feeding tube to receive nutrition. Dr. Martindale, her attending physician, saw her during rounds on January 21 and again at 6:45 a.m. on Saturday, January 22. He noted that she seemed to be improving and did not see her again that day.
Around noon on January 22, Mrs. Barnes’s feeding tube became occluded. The nursing staff replaced the tube and ordered an x-ray to confirm proper placement. At about 5:00 p.m., Dr. Schally, the radiologist on call at the hospital that weekend, read the x-ray. He observed that the feeding tube extended into Mrs. Barnes’s lung rather than her stomach. Dr. Schally’s report states that he immediately notified Nurse Linda Green of the situation. Shortly thereafter, the nursing staff apparently repositioned the tube and ordered another x-ray to confirm placement. However, they continued to feed Mrs. Barnes through the tube while awaiting the results of the x-ray. When Dr. Schally read the second x-ray at 9:40 a.m. on Sunday, January 23, he saw that the tube extended through the trachea and left mainstem bronchus and possibly into the pleural space (between the lung and the chest wall). His report states that his findings were “once again called to the CCU (Linda) the morning of 1-23-00 at approximately 0940 hours and subsequently discussed with Dr. Martindale as well.”
Dr. Martindale arrived at the hospital within half an hour of Dr. Schally’s call. His initial notes state that Mrs. Barnes was experiencing respiratory difficulty and had been fed overnight through the feeding tube that remained in her lung. Dr. Martin-dale consulted with a surgeon, and they planned to transfer Mrs. Barnes to Baptist Hospital in Little Rock. Before they could do so, she began to suffer respiratory and cardiac failure. Dr. Martindale’s final notes state that he removed a large amount of air and an Ensure-type substance from Mrs. Barnes’s chest, but she did not respond and died at 12:32 p.m. The cause of death was listed as a tension pneumothorax, a condition in which air trapped in the pleural cavity builds pressure and compresses the lung. See PDR Medical Dictionary at 1394 (1996).
Wilma Lee, the personal representative of Mrs. Barnes’s estate, sued Drs. Martindale and Schally, claiming that their negligence proximately caused Mrs. Barnes’s death. Both doctors moved for summary judgment, with the primary issue being whether Ms. Lee had marshaled sufficient expert testimony to create a fact question regarding the doctors’ negligence. The trial court granted summary judgment, leading to this appeal.
Standard of review
Summary judgment may be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. See Nelms v. Martin, 100 Ark. App. 24, 263 S.W.3d 567 (2007). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. On appeal, we need only decide if summary judgment was appropriate based on whether the eviden-tiary items presented by the moving party in support of the motion left a material question of fact unanswered. Id. In making this decision, we view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
Necessity of expert testimony
In actions for medical injury, the plaintiff generally has the burden of proving three propositions by expert testimony: the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was the proximate cause of the plaintiffs injuries. See Ark. Code Ann. 16-114-206(a) (Repl. 2006); Hamilton v. Allen, 100 Ark. App. 240, 267 S.W.3d 627 (2007). But, expert testimony is not required in every medical-malpractice case. See Dodd v. Sparks Reg’l Med. Ctr., 90 Ark. App. 191, 204 S.W.3d 579 (2005). A plaintiff must present expert testimony only when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence. See id.
Ms. Lee argues that she needed no expert testimony because it is common knowledge that a feeding tube is misplaced if it is in a patient’s lung instead of her stomach. However, the issues in this case are not that simple. To fully understand the standard of care and the allegations of negligence against these doctors, the fact-finder would require an understanding of medical terminology and anatomy as well as medical protocol, such as what an attending physician or radiologist must do upon learning of a mis-positioned feeding tube and what information one physician must impart to another. See Robbins v. Johnson, 367 Ark. 506, 241 S.W.3d 747 (2006); Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006); Nelms, supra. Under these circumstances, a plaintiff must produce expert testimony to assist the fact-finder. See generally Courteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989); Taylor v. Landherr, 101 Ark. App. 279, 275 S.W.3d 656 (2008); Hamilton, supra.
Ms. Lee contends next that she presented sufficient expert opinion on each doctor’s negligence to withstand summary judgment. We examine her arguments separately with regard to each doctor.
Dr. Martindale
Dr. Martindale’s motion for summary judgment was accompanied by his affidavit that he adhered to the applicable standard of care and that he did not know about the replacement of Mrs. Barnes’s feeding tube until he arrived at the hospital on Sunday morning, January 23. Additionally, he submitted an affidavit from Dr. Thomas Braswell, who stated that Dr. Martindale had nothing to do with the nursing staffs placement or reinsertion of the feeding tube and that he saw no evidence of Dr. Martindale’s failure to apply the degree of skill and learning ordinarily possessed by members of the medical profession in Benton, Arkansas, or a similar locality.
Ms. Lee responded with an affidavit from her expert, Dr. John Dunn. Dr. Dunn had reviewed the hospital records in the case, including the physician’s orders for Saturday, January 22. Those orders reflected that Nurse Linda Green had ordered x-rays of the feeding tube that day “v.o. Dr. Martindale,” meaning a “voice order” or “verbal order” from Dr. Martindale. Dr. Dunn understood these entries to mean that Dr. Martindale was aware of a problem with Mrs. Barnes’s feeding tube onjanuary 22 and that he ordered the x-rays. Based on that understanding, Dr. Dunn stated that, when Dr. Martindale was informed of the misplaced tube onjanuary 22, he was obligated to “closely personally follow Mrs. Barnes” and assure the proper position of the tube before feeding was resumed. He said that Dr. Martindale’s negligent failure to assure proper placement of the re-inserted tube before resuming feeding on January 22 and his failure “to immediately respond to findings of a continued misplaced tube from the chest x-ray of late on the 22nd” caused Mrs. Barnes’s death. Additionally, he opined that Dr. Martindale should have obtained an “immediate surgical consultation for [a] chest tube” onjanuary 23.
Upon reading Dr. Dunn’s affidavit and completing additional discovery, Dr. Martindale supplemented his motion for summary judgment with several attachments. These included his own deposition testimony that he had no knowledge of Mrs. Barnes’s feeding-tube problems until he heard from Dr. Schally on the morning of January 23 and that, after learning of the situation, he quickly went to the hospital, looked at the x-rays, and consulted a surgeon. He also testified that the January 22 x-rays were ordered by the nurses in accordance with hospital protocol and that the nurses did not contact him, despite the “v.o.” designation in the medical records. An affidavit from Nurse Linda Green stated that she wrote the two x-ray orders onjanuary 22 as a matter of routine procedure and that Dr. Martindale did not actually give her verbal orders for the x-rays.
Dr. Martindale also attached the depositions of Ms. Lee’s experts, Dr. John Dunn, who gave the above mentioned affidavit, and Dr. Peter Marvin. Dr. Marvin testified that he had no criticism of Dr. Martindale if Dr. Martindale was unaware of the feeding-tube problems prior to being called to the hospital on January 23. However, Dr. Marvin said that Nurse Green’s “v.o.” notation in the January 22 hospital records was the typical method of charting a face-to-face or telephone order from a doctor and that it would be a “very reasonable and common presumption” that “v.o.” indicated a verbal order from the doctor himself. Dr. Marvin stated that he would “find great fault” with Dr. Martindale’s management of the case if Dr. Martindale was apprised of the feeding-tube problem at 5:00 p.m. on January 22, as the hospital records indicated, and failed to take aggressive action.
Dr. Dunn testified that the opinion he expressed in his affidavit regarding Dr. Martindale’s January 22 negligence was based on his assumption that the nursing staff called Dr. Martindale about the x-ray results around 5:00 p.m. that day. He said that, if Dr. Martindale was told on January 22 that the feeding tube was in Mrs. Barnes’s lung or pleural space, Dr. Martindale should have gone to the hospital or given specific instructions to rectify the situation. If, however, Dr. Martindale was unaware of the events of January 22 — as he was now informed that Dr. Martindale denied being contacted about the feeding-tube problems that day — then he had no criticisms of Dr. Martindale. In short, his opinion ofDr. Martindale’s negligence onjanuary 22 depended on what he termed the resolution of a factual dispute over whether Dr. Martindale was or was not informed of the feeding-tube problem that day. As for any negligence by Dr. Martindale on January 23, Dr. Dunn stated that Dr. Martindale made it to the hospital quickly and timely consulted a surgeon. However, he expressed concern about whether Dr. Martindale conveyed enough information to the surgeon regarding the urgent nature of Mrs. Barnes’s problem, given that the surgeon’s notes referred to the tube’s being in the mainstem bronchus rather than the pleural space and that the surgeon did not immediately place a chest tube to ventilate Mrs. Barnes’s chest. Nevertheless, Dr. Dunn acknowledged that he could not say with a reasonable degree of medical certainty that Dr. Martindale violated the standard of care with regard to what he did or did not say to the surgeon.
Ms. Lee filed two more affidavits in response. The first, from Dr. Dunn, stated that he stood by his opinions in his original affidavit that Dr. Martindale’s treatment of Mrs. Barnes fell below the accepted standard of care. The second, from Dr. Phyllis Hannah, stated that it was Dr. Martindale’s responsibility to confirm placement of the feeding tube prior to resumption of feeding regardless of whether he was called by the nurses because Dr. Martindale later signed off on the January 22 physician’s orders.
As the above attachments show, Ms. Lee’s experts focused primarily on Dr. Martindale’s January 22 failure to monitor Mrs. Barnes and take remedial action when it became clear that there was a problem with the feeding tube. Dr. Martindale cites Nurse Green’s affidavit and his own affidavit and deposition testimony as uncontradicted evidence that he was not informed of the feeding-tube problems on January 22. Given this uncontradicted proof, he asserts, Drs. Dunn and Marvin, by their own deposition testimony, would not consider him negligent.
We agree with Dr. Martindale that Dr. Hannah’s expert opinion is conclusory and, therefore, ineffective to create a fact question as to whether Dr. Martindale was negligent. Fryar v. Touchstone Physical Therapy, Inc., 365 Ark. 295, 301-02, 229 S.W.3d 7, 12-13 (2006). However, we do not agree that Dr. Martindale’s and Nurse Green’s statements by deposition and affidavit stand uncontradicted. Mrs. Barnes’s hospital records show that on two occasions on January 22 Nurse Green ordered an x-ray “v.o. Dr. Martindale,” relating to the placement of Mrs. Barnes’s feeding tube. Mrs. Lee’s experts and Dr. Martindale recognized “v.o.” as the commonly used notation for a doctor’s verbal order to a nurse. Thus, Dr. Martindale’s and Nurse Green’s statements that Dr. Martindale was unaware of the feeding tube problems on January 22 conflict with hospital records showing that Dr. Martindale twice that day gave verbal orders to Nurse Green regarding the feeding tube x-rays. Because Drs. Dunn and Marvin stated that they would have criticisms of Dr. Martindale’s care of Mrs. Barnes if Dr. Martindale knew of the feeding-tube problems on January 22 and failed to take action, what Dr. Martindale knew on January 22 is a critical issue. Thus, the dispute between what the hospital records reflect and the explanations provided by Dr. Martindale and Nurse Green presents a genuine issue of material fact: which is correct, the hospital records or the testimony explaining them? Therefore, based on the evidence the parties have developed to this point, we reverse and remand the summary judgment on this aspect of Dr. Martindale’s culpability.
The same analysis does not hold true for Dr. Martindale’s alleged negligence of January 23. Dr. Dunn, the only expert who opined that Dr. Martindale was negligent on that date, speculated that Dr. Martindale may not have conveyed sufficient information to the surgeon about the severity of Mrs. Barnes’s condition or acted with enough urgency regarding her condition. However, Dr. Dunn could not say that Dr. Martindale violated the standard of care with regard to what he did or did not tell the surgeon. Dr. Dunn, in fact, did not know what Dr. Martindale told the surgeon. Thus, he stated, he could not testify to Martindale’s negligence on this matter within a reasonable degree of medical certainty or probability.
Ms. Lee argues that Dr. Dunn’s supplemental affidavit, in which he reasserted his opinions from his original affidavit, creates a fact question as to Dr. Martindale’s negligence. We disagree. In Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995), our supreme court held that an affidavit that is inherently and blatantly inconsistent with prior deposition testimony may not be used to establish a fact question to ward off summary judgment. The court ruled that, while a subsequent affidavit may be used to explain internally inconsistent deposition testimony, if a party who has been examined at length in a deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, “this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. at 758, 911 S.W.2d at 590 (quoting Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969)). Dr. Dunn’s original affidavit stated that Dr. Martin-dale was negligent in not obtaining an immediate surgical consul tation for use of a chest tube on January 23. Dr. Dunn stated in his deposition that Dr. Martindale’s consultation with a surgeon was timely and that he could not say to a reasonable degree of medical certainty whether Dr. Martindale fell below the standard of care with regard to what he told the surgeon on January 23. Dr. Dunn’s second affidavit, which adopted the first, directly contradicts this deposition testimony and cannot be used to create a fact question. We therefore affirm the summary judgment with regard to Dr. Martindale’s alleged negligence of January 23.
Dr. Schally
Dr. Schally’s affidavits in support of his motion for summary judgment stated that he came to the hospital on Saturday and Sunday as was customary for on-call radiologists; that he interpreted the x-rays, immediately called the nurse, and described the location of the tube; and that, within minutes of his conversation with the nurse at 9:40 a.m. on January 23, he called Dr. Martindale and told him of “the location of the tube down the left mainstem bronchus, possibly into the pleural space, and, also, as to the developing pleural effusion.” Dr. Schally also relied on his written reports concerning the x-rays, which reflected his communications with the nurse and Dr. Martindale.
Ms. Lee responded with Dr. Dunn’s original affidavit, which stated that Dr. Schally was negligent in not calling Dr. Martindale and communicating the life-threatening nature of Mrs. Barnes’s condition; not ordering an “immediate repeat chest x-ray”; and not assuring that a proper evaluation of Mrs. Barnes’s condition was performed on January 23. She further relied on Dr. Dunn’s supplemental affidavit, stating that he stood by these opinions following his deposition. Dr. Schally pointed to Dr. Dunn’s deposition testimony that Dr. Schally did not have to order a repeat x-ray or contact another physician because he could expect to rely on the critical-care nurse to follow hospital protocol; that Dr. Dunn would not expect a radiologist to be comfortable deciding whether to discontinue a feeding tube and that the nurse should have called Dr. Martindale for that decision; and that if on the morning of January 23 Dr. Schally relayed his concern to Dr. Martindale that the tube was in the pleural space or simply told Dr. Martindale what was in his report, he met the standard of care and did “all he’s expected to do as a radiologist.”
We agree with the trial court’s decision to grant summary judgment to Dr. Schally. Dr. Dunn’s deposition testimony differed markedly from his original and supplemental affidavits, and we therefore look to that testimony for resolution of this issue. See Caplener, supra. Dr. Dunn stated that Dr. Schally met the standard of care when he called the critical-care nurse on January 22 rather than calling Dr. Martindale. He also said that it was not Dr. Schally’s place to assure that feeding was stopped on January 22 because that was the clinician’s (Dr. Martindale’s) job, not the radiologist’s. Dr. Dunn further said that, assuming Dr. Schally imparted to Dr. Martindale the findings in his reports, Dr. Schally met the standard of care. Dr. Schally stated in his affidavit that he informed Martindale of what was in his reports. And, unlike in Dr. Martindale’s case, there is no reasonable basis on which to contradict Dr. Schally’s sworn statement. See Morgan v. S. Farm Bureau Cas. Ins. Co., 88 Ark. App. 52, 200 S.W.3d 469 (2004) (stating that uncontroverted affidavits are accepted as true for purposes of a motion for summary judgment). Therefore, no genuine issue of material fact remains as to Dr. Schally’s negligence, and we affirm the summary judgment as to him.
Affirmed in part; reversed and remanded in part.
Glover and Marshall, JJ., agree.
Summary judgment was also entered in favor of Dr. Schally’s employer, Radiology Associates, P.A. For convenience, we refer to these appellees collectively as Dr. Schally.
Ms. Lee had settled with the hospital, so it was not named in the complaint. Several other defendants were named, but Ms. Lee obtained an Ark. R. Civ. P. 54(b) certification permitting this appeal as to Drs. Martindale and Schally. See Lee v. Martindale, CA 05-1128 (Ark.App. Nov. 8,2006) (unpublished) (dismissing a prior appeal for lackof a final order).
Ms. Lee argues that Nurse Green’s affidavit should be stricken because the doctors acquired it in violation of Ark. R. Civ. P. 35(c)(2) and Ark. R. Evid. 503(d)(3)(B). These rules prohibit ex parte contact between an attorney and the other party’s physician or psychotherapist. Because Ms. Lee has made no convincing argument that improper contact occurred or that Nurse Green falls within the ambit of these rules under the present circumstances, we decline to strike the affidavit.
Drs. Marvin and Hannah offered no expert opinions regarding Dr. Schally sufficient to avoid summary judgment. | [
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D.P. Marshall Jr., Judge.
Nine summers ago Conway police officer Benjamin Lackey was involved in two traffic accidents on the job. In mid-June 1999, Lackey was rear-ended at an intersection by Mark Mays. About five weeks later, Lackey was t-boned in a shopping center parking lot by Dana Bramblett, who was working for Deliveries R Us. Lackey filed one lawsuit covering both accidents against more than twenty defendants: Mays, Bramblett, Deliveries R Us, Trent Properties (the partnership that owned the shopping center), various related parties whose identity is not important at this point, and numerous John Does.
This is the third appellate proceeding in the case. In Lackey I, the supreme court refused writs of certiorari and mandamus after the circuit court severed Lackey’s claims against Mays from those against all the other defendants. Lackey v. Bramblett, 355 Ark. 414, 139 S.W.3d 467 (2003). In Lackey II, we ordered rebriefing to cure defects in Lackey’s abstract and addendum. Lackey v. Mays, 100 Ark. App. 386, 269 S.W.3d 397 (2007).
We come now to the merits. The circuit court severed this matter, splitting it into two cases: CV-2002-478A Lackey v. Mays and CV-2002-478B Lackey v. all the other defendants. The court eventually granted summary judgment to the Trent defendants. A few months later, the parties tried Lackey’s claim against Mays to a jury, which found for Lackey and awarded him $1,784.18 — his medical bills related to the first accident. Lackey nonsuited all his claims against all the remaining defendants in CV-2002-478B. On appeal, Lackey challenges the summary judgment for the Trent defendants. The question presented is the Trents’ duty to Lackey. He also seeks a new trial against Mays. There the main issues are whether the circuit court erred by holding that Mays was not jointly liable for injuries Lackey sustained in the second accident (and limiting Lackey’s proof at trial accordingly) and by mishandling a note from the jury during deliberations.
The Trent Defendants. Lackey alleged that the Trent defendants were negligent in failing to design, install, and maintain their parking lot in a safe condition, and in failing to properly warn him about the lot’s dangers. The circuit court granted summary judg ment on all these issues. The Trents say we have no jurisdiction to review this point because Lackey’s notice of appeal was untimely, but that summary judgment was proper in any event.
We have jurisdiction. After the circuit court entered summary judgment for the Trent defendants, the delivery-service defendants and all the John Does remained in that part of the severed case. Lackey could not appeal the summaryjudgment until all his claims against these defendants were resolved. Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 635-36, 976 S.W.2d 950, 951-52 (1998). When the circuit court granted Lackey nonsuits of all his claims against all the remaining defendants, the summary judgment for the Trent defendants became final and appealable. Winkler v. Bethell, 362 Ark. 614, 619-22, 210 S.W.3d 117, 119-22 (2005). The legal analysis does not change even though the circuit court first granted the delivery-service defendants a nonsuit of Lackey’s claims against them. That step was error, as the circuit court recognized when it set aside the first nonsuit order. Lackey’s timely notice of appeal following the nonsuit order entered at his request established this court’s jurisdiction.
On the merits, the circuit court correctly granted summary judgment to the Trent defendants. Duty is always a question of law. Heigle v. Miller, 332 Ark. 315, 321, 965 S.W.2d 116, 120 (1998). Lackey acknowledges that he was an invitee on the parking lot: after completing a personal errand at the shopping center, he had returned to work as a Conway police officer at the time of the accident. Because Lackey was an invitee, the Trents had a presumptive duty to use ordinary care to maintain the parking lot in a reasonably safe condition for him. AMI Civil 2008, 1104; Van DeVeer v. RTJ, Inc., 81 Ark. App. 379, 385, 101 S.W.3d 881, 884 (2003). They had no such duty, however, if Lackey knew about some condition of the parking lot and appreciated the dangers it involved. Van DeVeer, 81 Ark. App. at 385, 101 S.W.3d at 884. Nor did the Trents have a duty to Lackey if a condition on the lot and the related risk were apparent to, and would be recognized by, a reasonable person in Lackey’s position exercising ordinary perception, intelligence, and judgment. Van DeVeer, 81 Ark. App. at 386, 101 S.W.3d at 885. The obvious-danger exception does not apply in certain extraordinary situations. If Lackey’s job forced him as a practical matter to encounter an obvious risk, then the exception is inapplicable. Jenkins v. Int’l Paper Co., 318 Ark. 663, 670-71, 887 S.W.2d 300, 304 (1994). The obvious-danger exception likewise does not apply if, because of other extraordinary circumstances, the Trents should have reasonably anticipated that Lackey would be exposed to some unreasonable risk despite his knowledge of the risk or its obviousness. Van DeVeer, 81 Ark. App. at 389-90, 101 S.W.3d at 886-87.
Lackey argues that genuine issues of material fact exist about whether he knew of and appreciated the danger from new intersections in the parking lot, the operation of Deliveries R Us in the shopping center, and the combination of those circumstances. We disagree.
First, the new intersections. These new cut-through lanes were obvious to a driver in Lackey’s position. Parking lots, by their very nature, contain intersections so cars can move from streets to parking spaces and vice versa. Lackey admitted that as a police officer he had worked on wrecks at the existing cut-through lanes in this parking lot. And the facts showed that he appreciated the risks of the new cut-through lanes. In his brief, Lackey states that — because he knew that wrecks had occurred at the existing intersections — he slowed down and looked left and right twice before entering the new cut-through lane where Bramblett t-boned his car. Lackey’s expert concluded that the danger was not open and obvious, but Lackey’s actual knowledge undercuts this conclusory opinion. Lackey, moreover, did not argue that he had no choice except to use this particular intersection to do his job. Because Lackey knew and appreciated the risks of the new intersections, the circuit court’s no-duty ruling about them was correct. Van DeVeer, 81 Ark. App. at 385, 101 S.W.3d at 884.
Second, Deliveries R Us. Lackey did not know that the delivery service — which promised hot food deliveries within forty five minutes — was operating from an office in the shopping center. But the presence of this kind of business, the presence of a delivery-service driver in a public parking lot, and the risks related to both, are all common circumstances that would have been apparent to a reasonable driver in Lackey’s position. Van DeVeer, 81 Ark. App. at 386, 101 S.W.3d at 885. His expert’s opinion to the contrary rested on no facts of record about the particulars of this accident. The circuit court implicitly disregarded it as a conclusory opinion, and properly so. Bushong v. Garman Co., 311 Ark. 228, 237, 843 S.W.2d 807, 812-13 (1992). In any event, Lackey offered no evidence that his wreck with Bramblett was proximately caused by the fact that she was working for a delivery service based at the shopping center when she hit Lackey’s vehicle. Union Pacific Railroad Co. v. Sharp, 330 Ark. 174, 181, 952 S.W.2d 658, 662 (1997). There was, for example, no evidence that Bramblett was speeding to meet a delivery deadline. The presence of the delivery service thus created no duty on the Trents to do more.
Third, the combination. Despite Lackey’s forceful argument, we are not persuaded that the combination of all the circumstances surrounding this accident leads to a different conclusion. The whole is no more than the sum of the parts. Lackey had experienced first-hand the dangers of cut-through intersections in this parking lot. The record contains no facts showing that Bramblett’s work as a delivery driver proximately caused this accident. Lackey’s job did not compel him to travel the route he chose through the parking lot. Here again, the conclusory opinion from Lackey’s expert added nothing of evidentiary value. And unlike in the Van DeVeer case, no fact question is presented about what the Trents should have reasonably anticipated in the unexceptional circumstances presented by this record. 81 Ark. App. at 389-90, 101 S.W.3d at 886-87. The circuit court, therefore, correctly ruled as a matter of law that the Trents violated no duty of care owed to Lackey.
The Mays Trial — Lackey’s Damage. The circuit court ruled that Lackey sustained separate and distinct injuries in the two accidents and that a jury could apportion his damages between those accidents. During Lackey’s trial against Mays about the first accident, the court therefore limited Lackey to presenting evidence of his injuries existing before 28 July 1999 — the day of his wreck with Bramblett. Lackey argues, as he did below, that he suffered a single indivisible injury in the two accidents and that the circuit court should have allowed him to prove and seek damages from both accidents during his trial against Mays.
Whether all the defendants here were jointly liable to Lackey was a fact-bound question of law for the circuit court. McGraw v. Weeks, 326 Ark. 285, 289-90, 930 S.W.2d 365, 368 (1996). The court had to determine whether Lackey’s injuries from both accidents could be divided based on the defendants’ respective contribution to the accidents’ causes. Ibid.; see also Restatement (Third) of Torts § A18 cmts. b, c, & e (2000). We review the circuit court’s decision for clear error. McGraw, 326 Ark. at 289-90, 930 S.W.2d at 368.
The proof went both ways. Lackey presented evidence showing that his injuries were indivisible. Dr. Robert McCarron evaluated Lackey after his second wreck. In his affidavit, Dr. McCarron stated that Lackey injured the same parts of his body in both wrecks, that the second wreck had aggravated injuries from the first wreck, and that Lackey had not recovered from the first wreck before he was in the second. Dr. McCarron opined, both in his affidavit and later in his deposition, that there was no reasonable or logical medical basis for dividing the harm between the two wrecks.
Mays, on the other hand, presented evidence showing that Lackey’s injuries could be divided. In mid-July, Dr. Gil Johnson, who treated Lackey after the first accident, noted that Lackey had pretty much recovered from that accident. A few days later, Lackey completed physical therapy and cancelled his last therapy appointment. Then the second accident happened. Lackey returned to Dr. Johnson, who again noted that Lackey had nearly recovered from his first accident before the second accident. Mays also argues that Dr. McCarron contradicted his affidavit in his subsequent deposition. When Dr. McCarron first saw Lackey, he did not know that Lackey had long suffered chronic neck pain since his service in the Gulf War in 1991. After he learned about that pain, Dr. McCarron testified in his deposition that Lackey had a chronic cervical strain that might have pre-existed his June 1999 accident. Lackey’s testimony and the medical evidence also showed that Lackey’s pain level just before the second accident was actually less than it had been before the first accident.
This record thus contains evidence supporting each party’s position about divisibility. The circuit court ruled that the evidence provided a reasonable basis for determining (1) that Mays’s conduct caused less than Lackey’s entire damages and (2) the amount of damages separately caused by Mays’s conduct. We see no clear error in that ruling. McGraw, 326 Ark. at 289-90, 930 S.W.2d at 368; Restatement § 26 cmt. f. The fact that the amount of damages attributable to each accident cannot be determined with mathematical precision does not mean that the damages are indivisible. Restatement § 26 cmt. f. Based on this record, we hold that the circuit court’s conclusion about divisibility was not clearly erroneous. McGraw, 326 Ark. at 289-90, 930 S.W.2d at 368. The resulting limits on Lackey’s evidence and his damage claim against Mays were proper in light of the divisibility decision.
The Mays Trial— TheJury’s Note. Lackey next argues that the circuit court erred by failing to disclose part of a cryptic note it received from the jury during deliberations. The note stated:
Is It clear, we are considering only a time period of Accident to Discharge of therapy!
Basically a month!
What is lawful guideline of compensation! amount is party seeking a set amount?
After getting the note, the court read the first three lines — but not the last two lines, which we have italicized — in open court. The court then said:
I don’t have an answer to that. I think it’s based upon instructions given to you as far as the other one. And that’s what I think the answers are on both of them. I’ve got to respond in writing on it. I wrote [at the bottom of the jury’s note], you must decide the case based upon the evidence and the instructions read to you. And I will sign it.
The court made the note (with the response) a part of the record and sent it back to the jury. Neither of the parties asked to see the note. Neither party objected to the court’s answer. The circuit court, however, erred. It should have read the entire note to the parties and their lawyers outside the presence of the jury. Howard v. State, 367 Ark. 18, 35-36, 238 S.W.3d 24, 38 (2006).
Our law presumes that the circuit court’s error prejudiced Lackey unless the lack of prejudice is clear. National Bank of Commerce v. HCA Health Services, 304 Ark. 55, 62-64, 800 S.W.2d 694, 699-700 (1990); Dickerson Construction Co. v. Dozier, 266 Ark. 345, 357, 584 S.W.2d 36, 43 (1979). Lackey argues that he was prejudiced because, if the court had read the entire note in open court, then he might have asked to reargue damages, or for more jury instructions, or moved for a nonsuit or mistrial.
These opportunities were indeed lost. But considering the record as a whole, we conclude that they were also largely illusory. Lackey was entitled to none of them as a matter of right — the availability of each of Lackey’s hypothetical responses to the jury’s improper inquiries rested entirely within the circuit court’s discretion. Wright v. Eddinger, 320 Ark. 151, 156, 894 S.W.2d 937, 940 (1995) (voluntary nonsuit); Sterling v. State, 315 Ark. 598, 599-600, 868 S.W.2d 490, 491 (1994) (additional argument); Pruitt v. State, 8 Ark. App. 350, 355-57, 652 S.W.2d 51, 54-55 (1983) (more jury instructions, mistrial). The undisclosed part of the note provided no basis for a mistrial. The possibility of a post-submission nonsuit was remote at best. The court’s prior instructions on damages were complete and correct. And Lackey had already made a full closing argument, in two parts, about his damages.
No trial is perfect. Hall v. State, 15 Ark. App. 235, 239, 691 S.W.2d 884, 886-87 (1985). The circuit court’s handling of this note was imperfect, but the lack of prejudice is manifest. As far as the jury was concerned, all its questions were responded to. The court’s response to the note was correct — it gave the jury the information it required to finish deliberations without directly answering the improper inquiries in the second part of the note. No abuse of discretion occurred in the circuit court’s decision to give the jury the information required, rather than all the information requested. Ark. Code Ann. § 16-64-115 (Repl. 2005); National Bank of Commerce, 304 Ark. at 63-64, 800 S.W.2d at 699-700. Because we can say with confidence that Lackey suffered no prejudice in these circumstances, we hold that the circuit court’s error does not justify a new trial. National Bank of Commerce, 304 Ark. at 63-64, 800 S.W.2d at 699-700; Dickerson Construction Co., 266 Ark. at 357, 584 S.W.2d at 43.
The Miscellaneous Issues. Lackey also appeals the circuit court’s order requiring him to sign releases allowing Mays to obtain some of his employment and Social Security records. Lackey asks us to address this point because, if the Trents’ summary judgment is reversed, then they will probably seek similar releases on remand. Because we affirm summary judgment for the Trent defendants, and Lackey does not seek reversal of the Mays judgment based on this issue, Lackey’s arguments are moot. Cotten v. Fooks, 346 Ark. 130, 133, 55 S.W.3d 290, 292 (2001). In any event, the documents for which Lackey provided releases were not used for summary-judgment purposes or at the Mays trial. They could have been obtained by the defendants with other discovery tools. The circuit court, therefore, did not abuse its discretion by ordering Lackey to sign the releases, nor was Lackey prejudiced by that order. Rickett v. Hayes, 251 Ark. 395, 401, 473 S.W.2d 446, 449 (1971).
Next, as Lackey points out, the circuit court improperly assessed $600.00 of jury costs against Mays pursuant to Ark. Code Ann. § 16-34-102 (Repl. 1999). Because this was a civil case, that award was error. Miller v. Scroggins, 260 Ark. 685, 686-87, 543 S.W.2d 476, 476-77 (1976). But Mays has not appealed this error. Lackey has no standing to assert it and suffered no prejudice from it. We therefore affirm on this issue too.
Mays has moved for attorney’s fees and costs related to his supplemental abstract and supplemental addendum. Lackey counters that these supplements were entirely unnecessary and moves for his fees and costs incurred in responding to Mays’s motion. The parties agree that Arkota Industries, Inc. v. Naekel, 274 Ark. 173, 177, 623 S.W.2d 194, 196 (1981), provides the governing legal standard. With one exception, Lackey has the better of this argument. Much of Mays’s supplemental materials were helpful during our deliberations, but that is not the standard for recovery. Arkota Industries, 274 Ark. at 177, 623 S.W.2d at 196. Several pages of the supplemental abstract of Dr. McCarron’s testimony were essential to our full consideration of an issue — joint liability. Only this work would support a modest fee award. In light of the fees and expenses incurred by Lackey in demonstrating the lack of merit in most of Mays’s request, however, we exercise our discretion under Ark. Sup. Ct. R. 4-2(b)(1) and decline to award any party any fees. We deny both motions.
The judgments are affirmed.
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John E. Jennings, Judge.
On December 8, 1997, appellant, Frankie L. Webb Jr., pled guilty in the Pulaski County Circuit Court to aggravated assault and terroristic threatening and was placed on probation for five years and fined $500.00. On the same day, he pled guilty in the same court to possession of a controlled substance and was placed on five years’ probation and fined $500.00. The order was silent on whether the terms of probation were ,to run consecutively or concurrendy. The State subsequently sought revocation of appellant’s probation in both cases alleging that Webb had been found in possession of drugs and a firearm. A revocation hearing was held on March 16, 1998. Appellant was found in willful violation of the terms of his probation and was sentenced to six years’ imprisonment for the aggravated assault and terroristic threatening offenses and ten years’ imprisonment for the possession of a controlled substance, to be served consecutively. Appellant argues that the trial court was without authority to order the sentences in the cases to be served consecutively. We disagree and affirm.
Appellant argues, correcdy, that when the trial court placed him on probation and imposed a fine of $500.00 in the original cases, a valid judgment of conviction was entered. Ark. Code Ann. § 5-4-301(d)(1) (Repl. 1997). It is also true that by law appellant’s terms of probation ran concurrendy. Ark. Code Ann. § 5-4-307(b) (Repl. 1997). A trial court cannot modify or amend an original sentence once it is placed into execution. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993). A sen tence is placed into execution when the trial court issues a judgment of conviction, unless the court specifically delays execution upon other valid grounds. Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995).
Appellant concludes from these authorities that on revocation of his probation, the trial court was without authority to run the two sentences consecutively. We do not agree. Arkansas Code Annotated section 5-4-309 (f) (Repl. 1997) provides that if the court revokes probation, it may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty. The case at bar is somewhat similar to Diffee v. State, 290 Ark. 194, 718 S.W.2d 94 (1986). There the defendant was both fined and placed on probation as to a term of imprisonment. When his probation was revoked, he argued that the circuit court lacked the power to sentence him to a term of imprisonment because a sentence had already been “imposed.” She had been fined and the fine had already been paid.
The supreme court held that no sentence had been imposed when the defendant was placed on probation. The court said:
We do not regard the $500 fine as a “sentence imposed,” because the statute is directed to a revocation of probation and thus is referring to the possible sentence to imprisonment that gave rise to the probation. In McGee as here the defendant pleaded guilty and was placed on probation for three years. There as here the court revoked the probation and imposed a five-year sentence. We held that Section 43-2332, as revised in 1979, did not apply, because no sentence had been pronounced when the defendant was placed on probation.
The appellant paid the fine, but she violated the conditions of probation. No authority is cited by counsel for the notion that every time a court accompanies a fine with probation, double jeopardy occurs when the probation is revoked. The argument is so lacking in merit that we do not discuss it at length.
The cases relied on by the appellant are distinguishable. In Hadley v. State, supra, the defendant had been actually sentenced to two concurrent terms of imprisonment. It was held that the trial court’s subsequent attempt to modify the sentences to run them consecutively was invalid. Likewise in Cashion v. State, 265 Ark. 677, 580 S.W.2d 470 (1979), an actual sentence of imprisonment had been put into execution and a subsequent attempt to modify the sentence was reversed. See also Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984).
Under Ark. Code Ann. § 5-4-307(b) the trial court was bound to order the original terms of probation to run concurrently. Under Ark. Code Ann. § 5-4-309(f) on revocation, however, the trial court was within its authority to run the sentences consecutively. This is because no sentence of imprisonment had yet been imposed.
Affirmed.
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John B. Robbins, Judge.
Appellant Anthony Antonio Warren was convicted by a jury of Class Y felony commission of a terroristic act and first-degree battery, which is a Class B felony. The victim was Justin Honey, who was fifteen years old when the offenses were committed. Mr. Warren was twenty-two at that time. Mr. Warren was sentenced to twenty years in prison for the terroristic act, and ten years in prison and a fine of $15,000 for the first-degree battery conviction, with the prison sentences to run consecutively.
Mr. Warren now appeals from his convictions, raising three arguments for reversal. His first two arguments are challenges to the sufficiency of the evidence to support his convictions. Mr. Warren’s remaining argument is that the trial court erred in failing to set aside his first-degree battery conviction because his two convictions arose out of the same act and violated the constitutional prohibition against double jeopardy. We find no error and affirm both convictions.
The State presented evidence that Justin Honey was driving his pickup truck at about 10:20 p.m. on August 8, 2006, through the intersection of Daugherty and State Streets in Newport, when he was shot in the back of the head with a .38 caliber bullet. Justin’s truck came to rest in a nearby field, and he was subsequently transported to a hospital where medical personnel saved his life. However, Justin continues to suffer from significant mental and physical disabilities as a result of the gunshot wound.
Bubba Hutchinson is friends with Justin Honey and testified about events that occurred on the night of the shooting. Bubba stated that he and Justin were parked in separate trucks in a parking lot in Newport and that Bubba’s mother called at around 10:20 and told the boys to be home by 10:30. Justin planned to spend the night at Bubba’s house. Bubba drove toward home with Justin following behind. Bubba drove through the intersection of Daugherty and State and saw people there that he did not know, and he thought he heard gunshots after proceeding through the stop sign. Bubba was almost home when he noticed that Justin’s truck was no longer behind him. Bubba drove back to the intersection and found Justin’s truck and realized that he had been shot.
Cody Knight testified that he drove through the intersection of Daugherty and State at about 9:45 or 10:00 on the night of the shooting. Cody saw Anthony Warren there with Samuel Curry, and he stopped and talked with them for a few minutes. Cody stated that he received a phone call about an hour later and was advised that Justin had been shot.
Angel Smith was present near the intersection at the time Justin was shot. She testified that she heard gunshots but that she did not see Mr. Warren fire a gun. However, this testimony was inconsistent with a prior video deposition, and that deposition was played to the jury as substantive evidence.
In her deposition, Angel testified that she saw Anthony Warren and Samuel Curry at the scene when Justin drove up to the intersection. Angel stated that Justin stopped and talked with Mr. Warren, and then with Mr. Curry. According to Angel, Mr. Warren and Mr. Curry then got into an argument and Justin proceeded to drive away. At that time, Mr. Warren fired three shots, “two in the air and then one going towards the stop sign, like towards the truck . . . pointed downward.” Angel testified that three more shots were fired by someone named “Ced.” Everyone at the scene ran, and Angel stated that Mr. Warren changed directions because he was initially running toward the police. After that, Angel heard Mr. Warren talking on his phone behind some apartments and he said, “I think the dude got shot.”
Officer Patrick Weatherford got an emergency call that night at 10:23 and came to investigate. The officers blocked off the area surrounding the Daugherty/State intersection and searched for evidence. Officer Weatherford testified that the police found six shell casings in the vicinity of where Angel Smith indicated the shots had been fired. Three of the casings were .32 caliber, and three were nine millimeter. The bullet that struck Justin was .38 caliber but no .38 caliber shells were recovered at the scene. However, Officer Weatherford explained that this was not surprising because shell casings are not ejected from a .38 caliber revolver.
Arnice Kendall testified that she saw Mr. Warren near the intersection on the night of the shooting. She could not recall what time it was, but she stopped and spoke with Mr. Warren and he told her that he had shot somebody. Arnice stated that she called Mr. Warren on the phone a couple of seconds later, and Mr. Warren told her that he was joking. Arnice had not yet heard about the shooting when she talked with Mr. Warren, and she was unsure whether their conversation occurred before or after the shooting.
Rosemary Thomas testified that she was riding around near the area where the shooting occurred and thought that it was a little before 10:00. She stated that Mr. Warren stopped the vehicle she was in and said that he had just shot somebody. When Rosemary inquired if he was serious, Mr. Warren said, “no, I’m just playing.” Rosemary later found out that there had been a real shooting that night.
Tanisha White testified that she is Mr. Warren’s former girlfriend. She stated that she dropped him off on State Street near the crossroads on August 8, 2006, and was supposed to come back and pick him up at 9:00. However, Tanisha did not pick him up at that time but picked him up sometime later at the home of a girl named Chyna. Tanisha did not arrive until Mr. Warren had called her two or three times, and she also picked up Samuel Curry at the same time that night. According to cell phone records, the last call placed from Mr. Warren to Tanisha on that evening was at 10:37. Tanisha indicated that she picked Mr. Warren up after that last call.
Justin Honey testified that he remembered driving down the road and being shot that night. Justin stated that he did not remember stopping at the intersection of Daugherty and State and did not know why someone shot him. Justin testified that he did not know Mr. Warren and did not see him that night.
Chyna Slaughter testified for the defense. She stated that Mr. Warren came to her house to have supper at about 8:00 p.m. on August 8, 2006. Chyna stated that Mr. Warren left her house with his girlfriend, Tanisha, at about 9:00.
Christy Warren is appellant’s sister and testified that she was driving from Batesville to Newport with a man named Cedric Alcorn when she received a call from her mother advising her about a shooting. Christy stated that she then called her brother and he told her that he was not in the area of the shooting when it occurred.
Mr. Warren testified on his own behalf, and he acknowledged that prior to the shooting he had been on State Street between 6:00 p.m. and 8:00 p.m. He stated that after that he went to Chyna’s house to eat, and left there with Tanisha after 9:00. Samuel Curry was riding with them. According to Mr. Warren, they stopped at the site of a card game but did not go inside the residence, and then they went to a girl named Natia’s house at 9:30. Mr. Warren maintained that he stayed there for the next two-and-a-half hours. Mr. Warren testified that he was not at the corner of Daugherty and State at the time of the shooting and that he had nothing to do with it. In rebuttal testimony, Officer Michael Scudder testified that during an interview appellant told the police that he was at Chyna’s house when the shooting occurred and made no mention of being anywhere else.
Mr. Warren’s first and second points on appeal are that there was insufficient evidence to support his conviction for committing a terroristic act and insufficient evidence to support his first-degree battery conviction. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and we will affirm a conviction if substantial evidence exists to support it. Thompson v. State, 99 Ark. App. 422, 262 S.W.3d 193 (2007). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Eaton v. State, 98 Ark. App. 39, 249 S.W.3d 812 (2007).
In pertinent part, Arkansas Code Annotated section 5 — 13— 310 (Repl. 2006) provides:
(a) For the purpose of this section, a person commits a terror-istic act if, while not in the commission of a lawful act, the person:
(1) Shoots at or in any manner projects an object with the purpose to cause:
(A) Injury to another person; or
(B) Damage to property at a conveyance that is being operated or that is occupied by another person[.]
(b)(1) Any person who commits a terroristic act as defined in subsection (a) of this chapter is deemed guilty of a Class B felony.
(2) Any person who commits a terroristic act as defined in subsection (a) of this section is deemed guilty of a Class Y felony if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person.
In this appeal, Mr. Warren argues that there was insufficient evidence that he committed a terroristic act because the State failed to prove that he acted with the purpose to cause serious physical injury or damage to property. He contends that there was no testimony establishing that he was firing at Justin’s truck, and that even if he had fired at the truck there was no testimony to establish that he had the requisite purpose required by the statute. Mr. Warren further argues that there was no evidence presented to show who fired the shot that injured Justin, which is required to enhance the penalty from a Class B felony to a Class Y felony. Finally, Mr. Warren contends that there was insufficient evidence to convict him as an accomplice because there was no testimony that he aided or acted in joint participation with the other shooter.
We hold that there was substantial evidence that Mr. Warren acted as the principal in committing a Class Y felony terroristic act. Intent is seldom proven by direct evidence, and often is inferred from the circumstances. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). Because of the difficulty in ascertaining a person’s intent, a presumption exists that a person intends the natural and probable consequences of his acts. Id. In the present case there was evidence that Mr. Warren fired a shot in the direction of Justin’s truck, and the natural and probable result of that conduct was serious injury or the death of the driver. The jury could reasonably infer from these circumstances that Mr. Warren had the required purposeful intent to injure Justin. Moreover, there was substantial evidence that Mr. Warren was the person who caused serious physical injury to the victim, given the additional evidence that on the night of the offenses he told two people on separate occasions that he had shot a man. And as the State points out in its brief, Mr. Warren further incriminated himself by fleeing and evading the police immediately after he shot toward the victim’s truck. See Alexander, supra.
Mr. Warren next argues that there was insufflcient evidence to support his conviction for first-degree battery. A person commits battery in the first degree if the person causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-13-201(a)(3) (Repl. 2006). As argued in the previous point, Mr. Warren contends that the State failed to elicit any testimony as to his intent or purpose, and that the State failed to prove that he was the person who fired the shot that struck the victim. Mr. Warren again notes that there was testimony that another person fired shots that night.
We hold that there was substantial evidence that Mr. Warren committed first-degree battery against Justin Honey. There was sufficient evidence that he caused a serious physical injury in that he fired a shot at Justin’s truck, evaded the responding police, and twice acknowledged shooting a man that night. And given the probable consequences of firing at an occupied moving vehicle, we have no hesitation in affirming the jury’s finding that Mr. Warren’s actions manifested an extreme indifference to the value of human life.
Mr. Warren’s remaining argument is that his two convictions constituted double jeopardy because he was punished twice for the same act. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution is applicable in this context. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court held:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.... ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’
284 U.S. at 304. Mr. Warren contends that convictions for both a Class Y felony terroristic act and first-degree battery are prohibited because no additional facts are required to convict the accused of first-degree battery once the elements of a terroristic act have been satisfied. He thus urges reversal of his first-degree battery conviction.
When reviewing a denial of a motion to dismiss for violation of the Double Jeopardy Clause, typically a question of law, a de novo review is conducted. Muhammad v. State, 67 Ark. App. 262, 998 S.W.2d 763 (1999). On de novo review of this issue, we hold that there was no constitutional double-jeopardy violation.
Mr. Warren concedes that committing a terroristic act contains elements not required for a first-degree battery conviction, including shooting at a conveyance with the purpose to cause personal injury or property damage. Contrary to appellant’s position, there is also an element of first-degree battery that goes beyond the requirements of obtaining a conviction for a Class Y terroristic act. Specifically, an element of first-degree battery, under which the jury was instructed, is acting under circumstances manifesting extreme indifference to the value of human life, an element not found in the terroristic act statute and which is something more than having the purpose of causing a physical injury as set forth in subsection (b)(2) of that statute. Because each of these offenses requires proof of an additional fact that the other does not, there was no constitutional violation under the Block-burger analysis.
We acknowledge that Mr. Warren also claims on appeal that his two convictions violated Arkansas Code Annotated section 5-l-110(a)(4) (Repl. 2006), which provides that a person cannot be convicted of more than one offense if the offenses differ only in that one offense is designed to prohibit a designated kind of conduct generally and the other offense to prohibit a specific instance of that conduct. However, Mr. Warren has failed to preserve this specific argument because at trial he made a constitutional double-jeopardy claim but no argument of any statutory violations. On appeal a party is bound by the scope and nature of the arguments raised at trial. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001). Moreover, the statute relied on by Mr. Warren is inapplicable because when comparing the elements of the two offenses it is evident that the conduct of committing a terroristic act is not a specific instance of conduct constituting first-degree battery. As previously stated, a terroristic act does not require the more offensive conduct of manifesting an extreme indifference to the value of human life.
Affirmed.
Gladwin and Bird, JJ., agree. | [
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Josephine Linker Hart, Judge.
Appellant Plane Techs argues that the Arkansas Workers’ Compensation Commission erred when it found that per diem payments Plane Techs made to its employee, appellee Stephen Keno, should be included in the calculation of Keno’s average weekly wage. We affirm the Commission’s decision.
An employee’s workers’ compensation is computed on the “average weekly wage earned by the employee under the contract of hire in force at the time of the accident.” Ark. Code Ann. § ll-9-518(a)(l) (Repl. 2002). “Wages” is defined as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer.” Id. § 11-9-102(19) (Supp. 2007).
According to the stipulations of the parties, Plane Techs is a staffing company specializing in recruiting and providing aviation mechanics to work for its clients on a temporary basis, and Keno, whose domicile was in Colorado, was hired by Plane Techs to work a temporary assignment as an aviation mechanic for a client in Hot Springs, Arkansas, where Keno temporarily resided for the assignment. When Keno suffered his compensable injury, he was being paid a base wage of $7.50 per hour and overtime wages of $24 per hour. Further, Keno was eligible for a per diem payment of $120 for each day worked, for a maximum of $600 per week, for the purposes of reimbursing him for his duplicate expenses for meals, lodging, and incidentals. The parties further stipulated that it was Plane Techs’s understanding that, according to federal law, any portion of the per diem payment not spent on meals and lodging was to be returned to Plane Techs or was to be reported by Keno to the IRS as other income.
In addition to these stipulations, the Commission had before it the deposition testimony of Steven Lewis, who handles workers’ compensation claims for Plane Techs. He testified that the per diem payments were to “reimburse for the duplicate expenses of the temporary residence, lodging, and meals associated with that temporary residence, of working away from the permanent tax home,” that the “per diem is based on a total amount they can earn per week, and then is divided by the day,” and that it was the maximum amount the IRS would allow Plane Techs to pay without withholding taxes on that amount. Also presented was the deposition testimony of Stephen Fisher, who is Plane Techs’s vice-president of operations. Fisher agreed that the per diem paid to Keno was at least a factor in agreeing to work for them, that if he did not pay a per diem, he would not be able to attract as many qualified mechanics to work for them, and that to successfully recruit qualified mechanics, he had to offer a certain level of compensation, regardless of what percentage may be per diem and what percentage may be wages.
Before the administrative law judge (ALJ), Plane Techs and its insurance carrier contended that the per diem payments should not be included in calculating Keno’s average weekly wage. The ALJ disagreed with their contention, and the ALJ’s decision was adopted by the Commission on appeal. In their appeal to this court, they make this same argument. Particularly, they assert that neither the previously cited statutes nor this court’s decision in Eckhardt v. Willis Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998), require that the per diem payments should be included.
In Eckhardt, the claimant was employed as a short-haul truck driver and compensated at a rate of $425 per week instead of by the miles he drove, but if he drove more than 1700 miles in a work week, he received a bonus, and if he was required to be away from home overnight, $35 of his salary was paid as per diem or a subsistence allowance for each such night. The per diem payments, however, were not subject to either state or federal withholding. In finding that the per diem payments should be included as part of the employee’s wages, the Eckhardt court concluded that “[c]alling this salary per diem was simply a legal way under the federal and state tax codes whereby [the employer] could boost [the employee’s] take-home pay, and coincidentally, avoid reimbursing him for expenses.” Id. at 229, 970 S.W.2d at 318.
Plane Techs and its insurance carrier contend that Eckhardt is distinguishable because here the per diem payments do not constitute real economic gain for Keno, as the payments were not made to Keno in lieu of wages but instead were reimbursements for lodging, meals, and incidental expenses, allowing him to “break even” with regard to living expenses. We, however, construe Eckhardt more broadly. In Eckhardt, the subsistence allowance provided a “boost” to the employee’s take-home pay. Similarly, and considering our statutory language, the per diem payments made by Plane Techs for reimbursement of lodging, meals, and incidental expenses provided an “advantage” to Keno. We see no meaningful distinction between Plane Techs providing “board, rent, housing, lodging, or similar advantage” as set forth in the statute and the per diem payments made by Plane Techs to Keno so that he can purchase the same. The per diem payments save Keno from expending other funds to acquire these advantages. Furthermore, Keno has the option of retaining any unused per diem funds, thus increasing his income. Thus, the per diem payments made to Keno fall within the statutory definition of wages, as it is an “advantage” received from his employer.
On appellate review, this court reviews only questions of law, and we may modify, reverse, remand for rehearing, or set aside an order or award, if the facts found by the Commission do not support the order or award or if that order or award is not supported by substantial evidence. Ark. Code Ann. § 11 — 9— 711(b)(4) (Supp. 2007). We hold that the facts found by the Commission support its order and that the order is supported by substantial evidence.
Affirmed.
Griffen and Hunt, JJ., agree. | [
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D.P Marshall Jr., Judge.
This extraordinarily contentious custody case returns to us. The core issue is who should have custody of C., a four-year-old boy. Appellant Cyndall Sharp is C.’s mother; appellee M.J. Keeler is the boy’s father. Sharp and Keeler were never married. In the first appeal, we affirmed the circuit court’s decision changing custody of C. to Keeler, but reversed the court’s requirement that Sharp’s visitation with her son be supervised. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007)(en banc). While the case was on appeal, the parties continued litigating about visitation and custody in the circuit court. We now have before us Sharp’s appeal from the circuit court’s March 2007 orders denying her motion to change custody back to her and holding her in contempt for violating court orders. Sharp also challenges an evidentiary ruling, which excluded some proposed expert testimony. At the end of the proceedings in 2007, the circuit court ordered both Sharp and Keeler to spend four days in jail for willfully violating the court’s orders. Keeler has not appealed the contempt ruling.
There is a preliminary, but nonetheless important, point. The circuit court did not have the benefit of our mandate in Sharp I, which issued in May 2007, when it entered the March 2007 orders now being challenged. In one of those orders, and on Keeler’s motion, the circuit court expanded supervision of Sharp’s visitation. Sharp does not challenge this part of the order. Keeler does not defend the supervised visitation, and says that this issue became moot after our first decision. We take all of this to mean that the circuit court and the parties are honoring our Sharp I mandate in letter and spirit, Williams v. State, 100 Ark. App. 199, 201-02, 266 S.W.3d 213, 215-16 (2007), and that Sharp’s visitation is not being supervised in any way.
I.
We reject Sharp’s main point. The circuit court did not clearly err by concluding in March 2007 that no material change in circumstances had occurred since the original custody order. Campbell v. Campbell, 336 Ark. 379, 384-88, 985 S.W.2d 724, 727-29 (1999). The facts that led the circuit court to change custody of this boy from his mother to his father in March 2006 are discussed in detail in this court’s thorough en banc opinion in Sharp I. 99 Ark. App. at 54-56, 256 S.W.3d at 536-38. Sharp acknowledges that she had the burden of proving a material change in circumstances during the year between the two orders. After three days of testimony, the circuit court concluded: “I find that the petitioner, Ms. Sharp, has failed to meet her burden of proof with respect to a material change in circumstances. The only thing that she’s proven today is that the parties still cannot get along.” We agree. And we see no useful purpose in describing the many ways large and small in which Sharp and Keeler have refused to cooperate with one another and have made each other’s life unnecessarily difficult.
During its 2007 bench ruling, the circuit court reminded Sharp that, “I changed custody [to Keeler in 2006] because I found that you were alienating parental affections from father to son and vice versa. Now, it wasn’t at that time you just not getting along with Mr. Keeler. That you continued to take action to the detriment of your son.” This harm and alienation was the basis for our affirmance of the March 2006 order changing custody from Sharp to Keeler. Sharp I, 99 Ark. App. at 54-56, 256 S.W.3d at 536-38.
In 2007, the circuit court acknowledged that Sharp and Keeler still did not get along and were still disobeying court orders. The court held Keeler in contempt for interfering with visitation, having Sharp removed by security during a hospital visit, and other bad behavior. Keeler served four days in jail for these actions and has not appealed his contempt citation. But the court also found that, unlike in the prior round, the custodial parent’s actions were not harming C.
In its detailed ruling, the court pointed to particular events that differentiated Keeler’s recent bad conduct from Sharp’s earlier actions. Among “several alarming things,” first was the fact that Sharp “admitted at the February ’06 hearing to lying about your son being in the emergency room to teach this man a lesson, which goes far beyond the little games that you two had previously been playing back and forth.” Second, in the earlier round of litigation, the court “found [Sharp] to be unfit because she had [C.] in the middle of a slapping contest between her and her mother, and her mother was charged with felony battery to a child and [Sharp] still allowed her mother to babysit little [C.]” These are some of the circumstances that led the circuit court to conclude that Keeler’s recent misbehavior, though similar to Sharp’s past actions, was not identical in either quality or effect on the child. Sharp does not argue that our decision in the first appeal somehow mandates — as a matter of precedent, equal treatment, or anything else — another custody change in her favor.
Nor did the circuit court find that Keeler’s recent actions were alienating C. from Sharp. The court concluded that “the decisions [Keeler is] making in violating court orders, I haven’t heard anything that it’s causing little [C.] to have a rough time or not be in his best interest. .. Precedent requires that we defer to the circuit court’s findings in this “he said and did” — “she said and did” controversy about custody. Word v. Remick, 75 Ark. App. 390, 394, 58 S.W.3d 422, 424-25 (2001). And the circuit court’s most recent conclusion that, notwithstanding his poor behavior, Keeler is not harming C. or alienating the boy from his mother is not clearly against the preponderance of the evidence. Harris v. Grice, 97 Ark. App. 37, 38, 244 S.W.3d 9, 11 (2006).
Sharp also argues that the circuit court erred by making her prove that changing custody was in C.’s best interest. No reversible error occurred here. Our law imposes this burden on Sharp because she sought the custody change. Brown v. Ashcraft, 101 Ark. App. 217, 220, 272 S.W.3d 859, 862-63 (2008). We likewise see no clear error in the best-interest finding. Harris, 97 Ark. App. at 38-42, 244 S.W.3d at 11-14.
We are not chancellors. Our standard of review, faithfully applied, decides this case. Harris, 97 Ark. App. at 38, 244 S.W.3d at 11; see also Hicks v. Cook, 103 Ark. App. 207, 215, 288 S.W.3d 244, 250 (2008) (Marshall, J., concurring). The question presented is not: what would we have decided as the finder of facts? The circuit judge has presided over this poisonous dispute since 2004. In the most recent round, the parties made a record of more than five hundred pages during several days of trial. As the circuit judge said in preface to her comprehensive oral findings, “I have been able to observe both of the parties testify and see their demeanor and see their expressions and hear their testimony and hear their stories.” The trial court has had a front-row seat at these parents’ long-running tug of war. We are, and should be, duty bound to defer to the trial court’s better vantage point for discerning what custody arrangement between these contending parents is best for this child. Sharp I, 99 Ark. App. at 43-44, 55, 256 S.W.3d at 529, 537.
II.
We also reject Sharp’s second main argument — that the circuit court abused its discretion by limiting the testimony of Dr. Martin Faitak. The circuit court appointed Dr. Faitak to perform a psychological evaluation of Sharp. Fie did so, and testified about his findings and conclusions. He also testified about the impact that Sharp’s and Keeler’s hostility toward each other had on C. The court did not allow Dr. Faitak to testify about two things: his opinion about a videotape of Sharp allegedly inappropriately touching C. while changing his diaper, and his opinion about Keeler’s mental health. We see no abuse of the circuit court’s broad discretion in either evidentiary ruling. Aswell v. Aswell, 88 Ark. App. 115, 122, 195 S.W.3d 365, 369 (2004).
First, Dr. Faitak was not present when the videotape was made. Keeler’s mother — a court-approved visitation supervisor — was present and testified about the incident. Sharp also testified about it. And the circuit judge watched the videotape. In light of all this evidence about the events portrayed on the videotape, we conclude that the circuit court did not abuse its discretion by excluding Dr. Faitak’s proposed testimony about his impressions of it. Aswell, 88 Ark. App. at 122, 195 S.W.3d at 369.
Nor did the court abuse its discretion by excluding Dr. Faitak’s testimony about Keeler’s mental health. Ibid. Dr. Faitak was appointed to evaluate Sharp, not Keeler. The circuit judge observed Keeler throughout the hearings just as Dr. Faitak did. She allowed Dr. Faitak to testify about the distrust between the parties, give his opinion — based on Keeler’s testimony — about Keeler’s lack of desire for collaborative counseling, and testify about the potential effect of the parents’ strained relationship on C. Given that Dr. Faitak had not evaluated Keeler, and given all the detailed evidence already in the record about Keeler’s actions toward Sharp, we see no abuse of discretion in excluding Dr. Faitak’s proposed testimony about Keeler’s mental health. Ibid.
III.
Finally, we come to contempt. At the end of its bench ruling, the circuit court held both parties in contempt for violating its prior orders. The court had held Sharp in contempt for the same reason the year before, but had “suspended” her sentence. After reciting their particular violations, the court sent both Keeler and Sharp to jail for four days directly from the last hearing. Both served their sentence. Keeler does not appeal his contempt citation, but Sharp challenges hers.
Sharp served her sentence, which mooted the contempt issue. Swindle v. State, 373 Ark. 518, 522-23, 285 S.W.3d 200, 204 (2008) (collecting cases). We may and do address the contempt issue, however, because it may arise again and it is practically impossible to get immediate appellate review of an order sending someone to jail for contempt directly from a hearing. Swindle, supra. Because our decision cannot affect the time Sharp has already served in jail, if we agree with her argument against the contempt citation, then we will declare error rather than reversing the order. Ibid.
The circuit court entered a separate order of contempt. It provides, as to Sharp, that:
1. Both parties have been admonished by this Court at numerous hearings about the importance of following court orders. However, the parties still are violating, willfully, the court’s orders.
2. The Court hereby invokes the four (4) days in the Washington County Jail which was previously suspended. The Court finds that Cyndall Sharp willfully disobeyed court orders since Feb 24, 2006 by: not following the supervision terms for visitation, threatening to take [C.] to the ER when not necessary, harassing the child’s father and family by videotaping visits, and using hidden cameras, driving by father’s house w/o reason.
The Court sentences Cyndall Sharp to four (4) full days in the Washington County Jail to be served immediately, with NO TRUSTEE status, to be released on Saturday, March 10, 2007, at NOON.
Sharp argues that, while willfully disobeying a court order outside the court’s presence may be criminal contempt, she was entitled to notice of the accusation and a reasonable time to make her defense. Ark. Code Ann. § 16-10-108(a)(3) & (c) (Supp. 2007); see also Fitzhugh v. State, 296 Ark. 137, 140, 752 S.W.2d 275, 277 (1988). The key statutory provision is § 16-10-108(c): “Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.”
Because neither a motion for contempt nor an order to show cause was pending, Sharp says she had insufficient notice. She also argues that the circuit court’s prior orders were not specific enough to support a contempt citation for the actions relied on by the court. Keeler responds that the court’s prior orders put Sharp on notice: she attempted to evade the supervision specifically-ordered, and she harassed him in various particular ways contrary to the court’s general order that neither party should harass the other.
We declare error on the criminal contempt citation. Though it is not a basis for our decision, we point out that a sentence for criminal contempt may not be suspended indefinitely. [A]n attempt to suspend the execution of a sentence for contempt of court, other than a mere postponement, is invalid and amounts to a complete remission of the punishment.” Higgins v. Merritt, 269 Ark. 79, 80, 598 S.W.2d 418, 419 (1980). The reversible error here was the lack of notice required by the statute. The circuit court gave Sharp ample and repeated notice from the bench in the first round of litigation that she must obey the court’s orders or she would be jailed for contempt. But Sharp did not have notice — either by motion, show-cause order, or statement from the bench during any of the last hearings — that Keeler or the court was accusing her at that time of acting contemptuously in the various particular ways adjudicated in the contempt order. The earlier citation, having been remitted by its suspension, cannot fill this gap. The court’s orders for supervised visitation and against harassment were a necessary condition for a contempt finding, Ark. Code Ann. § 16-10-108(a)(3), but not a sufficient condition. Sharp was entitled to notice of specific accusations and then a reasonable time to defend before the court decided the contempt issue. Ark. Code Ann. § 16-10-108(c). The circuit court’s summary citation — while understandable in light of the parties’ egregious behavior — was error.
Affirmed in part, error declared in part.
Gladwin, Griffen, and Glover, JJ., agree.
Hart and Heffley, JJ., dissent. | [
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Larry D. Vaught, Judge.
On November 14, 2007, appellant Tony Weaver was convicted in Conway County Circuit Court of driving while intoxicated and driving left of center. On appeal, Weaver argues that the trial court erred in denying his motion to dismiss based on an illegal arrest. Specifically, he contends that he was arrested beyond the lawful jurisdiction of the arresting officer. We affirm.
At the hearing on Weaver’s motion to dismiss, Officer Andrew Babcock of the Menifee Police Department testified that at approximately 11:40 p.m. on October 8, 2005, he was sitting in his patrol vehicle, which was parked in a gravel driveway off Highway 64, one mile outside of the Menifee city limits. He was completing some paperwork related to a traffic citation, when he observed Weaver (driving within the city limits of Menifee on Highway 64) cross the center line and force another vehicle into the shoulder of the highway. As Weaver’s vehicle continued on Highway 64, Officer Babcock witnessed it swerve several times and travel down into-and-out-of an embankment. Once Weaver passed Officer Babcock, the officer pursued Weaver, stopping (and ultimately arresting) him outside of the Menifee city limits.
Weaver testified that on October 8, 2005, after attending a bachelor party, he was driving home on Highway 64. He admitted driving through Menifee and passing Officer Babcock’s patrol vehicle. Weaver also admitted drinking five beers and one shot of whiskey that evening. It was Weaver’s testimony that Officer Babcock could not have observed the alleged violations occur within the Menifee city limits, because the gravel driveway where the officer was parked was at a lower grade than the highway upon which Weaver traveled.
The trial court denied Weaver’s motion to dismiss, finding that the officer had jurisdiction to arrest Weaver based on King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993), and Arkansas Rule of Criminal Procedure 3.1. The trial court then moved to the merits of the case, at which time Weaver stipulated to the facts presented at the hearing. Based on these facts, the trial court found Weaver guilty of driving while intoxicated and driving left of center. The crux of Weaver’s argument on appeal is that the trial court was without jurisdiction to enter a finding of guilt. We do not reach the merits of Weaver’s jurisdictional argument because we affirm for a different reason.
In this case, Weaver moved to dismiss the charges filed against him, arguing that his arrest was illegal. However, an illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or a defense to a valid conviction. United States v. Crews, 445 U.S. 463 (1980); Halfacre v. State, 292 Ark. 331, 731 S.W.2d 179 (1987); O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984); Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989); Van Daley v. State, 20 Ark. App. 127, 735 S.W.2d 574 (1987). As the Court explained in Crews, “the exclusionary principle ... delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness.” Crews, 445 U.S. at 474. However, the accused “is not himself a suppressible ‘fruit,’ and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.” Id.
In the instant case, Weaver’s request was that the charges filed against him be dismissed. The motion he filed was entitled “Motion to Dismiss.” In the prayer of that motion, he requested “an absolute discharge of the charge filed against him and pray[ed] that the charge against him be dismissed.”
A motion to dismiss is not the proper vehicle to challenge an illegal arrest. “An invalid arrest may call for the suppression of a confession or other evidence, but it does not entitle the defendant to be discharged from responsibility for the offense.” O’Riordan, 281 Ark. at 426, 665 S.W.2d at 257. Further, the court’s jurisdiction to try an accused does not depend upon the validity of the arrest. Singleton v. State, 256 Ark. 756, 757, 510 S.W.2d 283, 284 (1974) (holding that “[i]t goes almost without saying that a defendant, after having been fairly tried in a court of competent jurisdiction and found guilty . . ., is not entitled to be set free on the basis of some flaw in the manner of his arrest”). Because Weaver’s motion to dismiss was not the proper mechanism for challenging the arrest, we need not decide the jurisdictional issue. Therefore, we affirm the trial court’s order denying the motion to dismiss and finding Weaver guilty.
Affirmed.
Pittman, C.J., and Glover, J., agree.
We note that Weaver did not move to suppress any evidence pursuant to Arkansas Rule of Criminal Procedure 16.2. However, contained within Weaver’s motion to dismiss are two general statements requesting the exclusion of any evidence obtained by Officer Babcock in the illegal arrest. If we were to liberally construe those statements as a motion to suppress, we are left with the same result. At trial, no evidence obtained as a result of the allegedly illegal arrest was introduced. The only incriminating evidence introduced at trial, which was stipulated to by Weaver, included the officer’s observations prior to the traffic stop and Weaver’s own testimony that he was drinking and driving. Because Weaver’s conviction was not based on evidence obtained as a result of the allegedly illegal arrest, Weaver can show no prejudice. See Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). | [
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Josephine Linker Hart, Judge.
John William “Bill” Seam-ster, Jr., appeals the revocation of his suspended imposition of sentence (SIS) for first-degree sexual abuse. On appeal, he argues (1) the circuit court did not have jurisdiction to revoke his SIS because the revocation was for conduct occurring before the period of suspension had begun to run; (2) the 2001 judgment made the RSVP (Reduction of Sexual Victimization Program) a condition of imprisonment, not a condition of his SIS or, alternatively, if completion of RSVP is deemed to be a condition of the SIS, then the sentence is illegal; and (3) the circuit court erred in finding that he failed to comply with the terms and conditions of his SIS. We hold that Seamster’s second and third points have merit, and we reverse and dismiss.
On February 21, 2001, Seamster pleaded nolo contendere to two counts of first-degree sexual abuse. As part of his plea, he agreed to serve six years in the Arkansas Department of Correction on one count, receive a ten-year suspended imposition of sentence (SIS) on the other, and complete RSVP. Appended to the judgment and commitment order was a document styled “ADDITIONAL TERMS/CONDITIONS OF DISPOSITION.” In pertinent part, it stated: “DEFENDANT IS TO ENROLL IN, AND COMPLETE RSVP PROGRAM PRIOR TO BEING RELEASED FROM ADC. SENTENCES ARE TO RUN CONCURRENT.” Seamster was given a separate document styled “Conditions of Suspension or Probation.” In addition to the standard conditions of suspension, he was ordered to have no contact with the victims or their family and to “complete aftercare program as may be ordered or recommended by RSVP Program.”
Seamster reported to the Department of Correction and began to serve his six-year sentence. During his incarceration, he was not allowed to participate in RSVP because he did not comply with a requirement that he admit his guilt as condition of enrollment. After serving his entire six-year sentence, Seamster was released on March 6, 2007. On March 14, 2007, the State petitioned to revoke his SIS, alleging that Seamster “failed to complete the RSVP Program and has failed to comply with the After Care Program.” The trial court granted the petition and sentenced Seamster to six more years in the Arkansas Department of Correction. He now appeals that order.
We need only focus on Seamster’s second and third points, which due to their complementary nature, we will address together. Seamster cites Arkansas Code Annotated section 5-4-303(g) (Repl. 2006), which states: “If the court suspends imposition of sentence on a defendant. . . the defendant shall be given a written statement explicitly setting forth the conditions under which he or she is being released.” He argues that participation in the RSVP was not included on the document entitled, “Conditions of Suspension or Probation,” but rather on a sheet appended to the judgement and commitment order that was captioned “ADDITIONAL TERMS/CONDITIONS OF DISPOSITION.” Construing the judgment as written yields the only logical conclusion that participation in RSVP was therefore, not a condition of SIS, but rather, a condition of incarceration. Arguing in the alternative, Seamster states that even if participation in RSVP was a condition, his failure to complete the program could not justify the revocation of his SIS because it was not an inexcusable violation because he was refused entry into the program simply because he would not admit his guilt. Seamster acknowledges that participation in the Aftercare Program was a condition of his suspended imposition of sentence, but nonetheless asserts that the circuit court erred in finding that he failed to comply with the terms and conditions of his suspended sentence. In his reply brief, he expounded on his argument that the trial court erred in finding that he violated a term of his SIS. He notes that he was required to complete the Aftercare Program “as May be Ordered or Recommended by RSVP Program,” but asserts that the “State has never contended that an aftercare program was ordered or recommended by the RSVP Program” for him. We agree.
In order to construe judgments, we look for the intention of the court, which is derived from the judgment and the record. Bramucci v. State, 76 Ark. App. 8, 62 S.W.3d 10 (2001). It is obvious to us from the record that participation in RSVP was a condition of Seamster’s incarceration, not of his SIS. Accordingly, the trial court erred in finding that Seamster’s failure to complete RSVP justified revoking his SIS. Furthermore, we agree that there is no evidence that Seamster violated any other condition — specifically, there is no proof that he was ever ordered or recommended to participate in the Aftercare Program. Consequently, there was no demonstrated violation of the terms and conditions of Seamster’s SIS. Because we are required to construe criminal statutes strictly, and resolve any doubts in favor of the defendant, we hold that the trial court erred in revoking Seamster’s SIS. See Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
Reversed and dismissed.
Gladwin, Hunt, and Baker, JJ., agree.
Pittman, C.J., and Heffley, J., dissent.
RSVP is the Arkansas Department of Correction’s course of treatment for incarcerated sexual offenders. RSVP is only available to incarcerated inmates.
The dissent posits that Seamster did not challenge the finding that he failed to participate in aftercare until his reply brief. We disagree. As we note, in his main brief he explained that he was denied entry into RSVP and that the State failed to prove that he violated a term or condition of his SIS. It was apparent from his argument, and made manifest in his reply brief that if he was not admitted into RSVP, he could not be ordered to participate in or be recommended for an aftercare program. | [
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Robert J. Gladwin, Judge.
Appellant Andrea Hicks appeals the custody order filed August 31, 2007, in Chicot County Circuit Court. She contends the trial court erred in awarding custody of her son to appellee Joshua A. Cook, the biological father, impermissibly basing the decision on its perceptions of her religious preferences and mental health. Giving special deference to the trial judge’s ability to evaluate and judge the credibility of the witnesses, we affirm the trial court’s order.
Facts
The child, a two-year-old boy, was bom out of wedlock on January 17, 2005, and the biological father’s name was placed on the birth certificate. The father voluntarily paid child support to appellant and enjoyed liberal visitation with his son. On February 6, 2007, the father filed a custody petition. At the custody hearing held August 9, 2007, the father testified he had been remarried in February 2007, that he fives in Smackover, Arkansas, that his new wife has two daughters, and that he has joint custody of a daughter with an ex-wife, to whom he pays $400 per month in child support.
The father testified about dog bites or wounds on the boy’s shoulder, terrible diaper rash, dirty fingernails and toenails, a bad earwax condition, and some sort of fungus on the child’s face, all of which were discovered by him at the same time. These discoveries prompted the custody petition. Further, the father testified about all the family that five around him, the access to parks and a good preschool in Smackover, and the willingness of his family to help. His grandmother and in-laws each testified that he is a great father and that they would be willing to help if he were awarded custody. His ex-wife, the mother of his daughter, testified that he is a great father and that she and her new husband send the new husband’s child with the daughter for visitation.
Appellant testified that she lives in Little Rock, that she is a nursing assistant, and that she wants to go back to school to be a social worker. She testified that the boy’s shoulder wound was from a dog bite, and that the dog hair in the car seat came from her brother’s dog. She stated she had several prescriptions for anxiety and sleeplessness, but that she does not take those anymore. She testified that she only told the father she was practicing Wicca, but that she was really a Baptist. She explained to the trial court that Wicca was an earth religion that had gods and goddesses and believed in doing good.
The trial court awarded custody to the father, citing Arkansas Code Annotated section 9-10-113 (Supp. 2007), and found the father met the requirements of assuming his responsibilities toward the child by providing care, supervision, protection, and financial support. The trial court also found that he was a fit parent to raise the child and it was in the child’s best interest to be in the father’s custody. The trial court cited its grave concerns regarding the mother’s ability to raise the child in a safe and nurturing manner. The judge cited the child’s dirty state, the wound on his shoulder, and the mother’s nonchalance. He cited concerns over the mother’s mental health, in that she had filled prescriptions for medications to treat anxiety, depression, and sleeplessness, but that she quit taking the medication. Finally, he stated his concern over her testimony regarding the Wicca religion, stating she probably was more involved in it than she led the court to believe. The court awarded the mother reasonable visitation and did not require her to pay child support. This appeal timely followed.
Law
Arkansas Code Annotated section 9-10-113(a) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). Section 9-10-113(b) provides that a biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. See id. Custody may be awarded to a biological father upon a showing that (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. Ark. Code Ann. § 9-10-113(c).
In Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007), this court analyzed two cases that relied upon Arkansas Code Annotated section 9-10-113, and held that in order to determine which standard the trial court should use in a custody dispute involving parties who were not married at the time the child was born — best interests of the child (as is utilized for initial custody determinations) or material change of circumstances (which is used when custody is being changed) — the issue rests entirely on whether the initial order in the paternity action was permanent or temporary. If it was permanent, the trial court should follow Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993), and require a change of circumstances to change custody. If it was temporary, the trial court should follow Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004), and conclude that there is no need for the father to prove changed circumstances to obtain custody.
Here, the trial court did not consider that a paternity action was never filed, but acknowledged that the father’s name was on the birth certificate, there was never a question as to the paternity, and the father was paying child support on his own accord. When the father filed a petition for custody, the trial court correctly interpreted it as the initial custody determination. Therefore, the trial court’s duty was to determine the best interests of the child in making an initial custody determination.
In reviewing child-custody cases, we consider the evidence de novo, but will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003). A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003). We know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003). In custody cases, the primary consideration is the welfare and best interest of the child involved, while other considerations are merely secondary. Durham, supra.
Wicca
Appellant argues the trial judge impermissibly based his decision on his perceptions of her religious preferences. The trial judge’s letter of August 16, 2007, states as follows:
One final concern is her testimony regarding the WICCA religion, movement, cult or whatever that may be. She testified that she told Mr. Cook she was involved, but was only joking. That is no joking matter. The Court believes she is much more involved than she would now lead us to believe.
Appellant argues that the above comments showed an impermissible prejudice. She claims that “cult” is pejorative, and argues there was no evidence that Wicca was anything other than a nature religion. She claims the judge’s comments have a chilling effect on religion and freedom of religious exploration. She argues it is a burden on the freedom of religion for the trial court to have determined custody based upon her investigation of a religion not approved by the State. She contends that the trial judge considered her religion, which should have been irrelevant, and maintains that his comments prove he considered it. Therefore, the presumption that he relied only on admissible evidence has been rebutted. See Mitchell v. City of North Little Rock, 15 Ark. App. 331, 334, 692 S.W.2d 624, 626 (1985).
Appellant expounds on this argument, claiming that the dissent in Johns v. Johns, 53 Ark. App. 90, 95, 918 S.W.2d 728, 732 (1996), notes that intervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark. In Johns, the trial court ordered the non-custodial parent to take his children to church and Sunday school. The trial court was affirmed, but the vote was split. This court held:
The chancellor did not order him to attend religious services, but rather that he see that his children did so in order to maintain consistency in the religious regimen that their mother has set for them. Therefore, no limitation has been placed on appellant’s freedom of religion. Because the chancellor’s order imposes no duty on him to attend, appellant is free to attend or not attend the services with the children.
Id. at 94, 918 S.W.2d at 731.
Appellant herein argues that the U.S. Constitution and the Arkansas Constitution prohibit discrimination on the basis of religious belief. She maintains that Wicca is a religion for purposes of the First Amendment. Arkansas courts have not addressed the issue; however, she argues that the testimony here establishes that Wicca is a mode of worship as set out in the Arkansas Constitution. She claims that from the trial judge’s comments, it is obvious he disapproves of Wicca. Appellant maintains that his prejudice is constitutionally impermissible.
Appellant contends that no substantial evidence links her religious beliefs and interests — whatever they may be — with the child’s well being. She is correct. Our cases say that a parent’s moral instruction of the child, which may include religious beliefs, is an issue in determining the child’s best interest. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Plum v. Plum, 252 Ark. 340, 478 S.W.2d 882 (1972); McCullough v. McCullough, 222 Ark. 390, 260 S.W.2d 463 (1953). Therefore, religious beliefs and practices are only material as they affect children’s best interests. However, in this case, no party explored the connections between religious belief and upbringing.
The father argues that appellant never raised the constitutional issues regarding Wicca at the trial-court level and they should not be considered on appeal. However, the father also contends that the trial judge did not impermissibly base his decision on his perception of appellant’s religious preferences. We agree.
Setting aside the trial judge’s comments regarding Wicca, the evidence before the trial court in this initial custody determination was that the father had a clean, stable, loving environment for the child, and while in the mother’s care, the child endured dog bites, diaper rash, a facial fungus, and dirty fingernails and toenails. Further, appellant had been prescribed medications for depression and anxiety, but determined without doctor’s advice to quit taking the medications. The trial court ruled the father proved he had assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child, and he proved he was a fit parent to raise the child. These were not denied by appellant.
In the trial court’s letter opinion, the trial judge stated his concern about appellant’s credibility relative to the extent of her involvement with Wicca. The trial court clearly did not believe appellant’s testimony that she was merely joking about her interest in Wicca. Appellant urges this court to consider the trial court’s mention of Wicca to represent an expression of prejudice. However, there is no basis to hold that the trial court resolved this initial custody determination on appellant’s interest or involvement with Wicca, but simply pointed out appellant’s lack of credibility on the issue. We decline to accept appellant’s argument that this case turns on the trial court’s acceptance or rejection of a specific religion. Instead, the trial court, in this initial custody determination, considered appellant’s credibility on a matter testified to before it. Remembering to give special deference to the trial judge’s ability to evaluate and judge the credibility of the witnesses, we hold that the trial court was not clearly erroneous in judging appellant incredible on this issue. Moreover, even if the Wicca issue went beyond credibility and otherwise affected the merits in the circuit court’s decision, precedent allows us to disregard an improper factor and affirm if the court’s other reasons for changing custody were proper and adequate. Compare Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004), with Sykes v. Warren, 99 Ark. App. 210, 258 S.W.3d 788 (2007). And, as discussed above, no clear error exists on those other factors.
Mental Health
Appellant argues that the trial judge impermissibly based his decision on a conclusion about her mental health that was not in evidence. She claims there was no medical evidence admitted. Further, she argues there was no indication that she was engaged in bizarre behavior in any way inconsistent with the best interest of her child. Therefore, she contends there was no basis for the judge to conclude the child would be better off if the mother took medications that had been prescribed to her in the past.
The father argues that the trial judge properly considered appellant’s mental health and physical condition. He claims the evidence showed that shortly before trial, appellant received prescriptions for depression, anxiety attacks, sleeplessness, and restlessness. At trial, she claimed to be “between doctors.” The trial court stated, “The court does not believe that depression and anxiety occurred overnight. If she suffers from these conditions and she obviously does, the child would be much better off if she took her medicine.” Based on what she told the doctor, she received those medications. Later, she apparently declared herself to be well because she stopped taking the prescribed medications, according to her testimony. Again, giving special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases, we find no error. Accordingly, we affirm.
Affirmed.
Glover, J., agrees.
Griffen and Marshall, JJ., concur.
Hart and Heffley, JJ., dissent. | [
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Karen R. Baker, Judge.
Appellant Sherry Erwin appeals a temporary order changing custody to appellee Michael Pace. While we recognize the prudence of appealing a temporary order after this court’s holding in Hodge v, Hodge, 97 Ark. App. 217, 245 S.W.3d 695 (2006) (reversing and remanding custodial determination noting that the temporary order on its face had a temporal limit to its temporary nature), our supreme court’s precedents require us to dismiss this appeal. Dismissal is in order here because the trial court specifically awarded custody temporary in nature, withheld a determination of whether a change of circumstances has occurred warranting a permanent change of custody, withheld a determination of the best interests of the children regarding permanent placement, and clearly indicated that a final decision was pending upon further presentation of proof.
Appellant argues that, despite the temporary designation of the order, the order was in fact a final and appealable order. Appellee agrees that the order is appealable, but disagrees that the order was final, asserting that by its terms it was a temporary order contemplating a further hearing; however, appellee concedes that as of the day of oral arguments, no further proceedings or hearings had been scheduled after the challenged order had been entered. In addition, the trial court specifically stated in its order that the temporary order was appealable, citing Wood v. Wood, 226 Ark. 52, 287 S.W.2d 902 (1956).
Historically, cases which focused on the appealability of custody orders concerning children held that a decree awarding or changing custody of children is a final decree from which an appeal may be taken. See Walker v. Eldridge, 219 Ark. 35, 240 S.W.2d 43 (1951) and Wood v. Wood, 226 Ark. 52, 287 S.W.2d 902 (1956). The trial court’s citation to Wood in its statement that its determination was appealable was a reference to a case still recognized as valid. However, beginning with the decision in Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984), and later in Sandlin v. Sandlin, 290 Ark. 366, 719 S.W.2d 433 (1986), this rule has been modified such that a temporary order of custody is not appealable if further presentation of proof on the issue of custody is contemplated. See Lester v. Lester, 48 Ark. App. 40, 42-43, 889 S.W.2d 42, 43-44 (1994)(Rogers, J., concurring) (proposing that “[c]ases of this kind should be subject to an immediate appeal. Permanency in the eyes of a child is a much shorter and meaningful period than we as adults may realize. At issue is the best interest of the child, which is best served by proceeding expeditiously”).
The appealability of temporary custody orders should not be a quagmire resulting in procedural bars. Not all jurisdictions follow the rule as set forth by our supreme court. The Connecticut supreme court in Madigan v. Madigan, 620 A.2d 1276 (Conn. 1993), rejected our supreme court’s approach to the appealability of a temporary custody order. The Connecticut court held that temporary custody orders are final judgments that are immediately appealable because an immediate appeal is the only reasonable method of insuring that important rights surrounding the parent-child relationship are adequately protected. The Connecticut court reasoned:
An inquiry into the law of other jurisdictions supports our conclusion that temporary custody orders are immediately appeal-able. Although a number ofjurisdictions have held that such orders are not immediately appealable, emphasizing the broad rale that interlocutory orders must await the end of an action to be appealed; see, e.g., Chancellor v. Chancellor, 282 Ark. 227, 230, 667 S.W.2d 950 (1984); In re Temporary Custody of Five Minors, 105 Nev. 441, 443, 111 P.2d 901 (1989); Craft v. Craft, 579 S.W.2d 506, 508 (Tex. Civ. App.1979); others recognize that temporary orders may be appealed pursuant to local rules recognizing interlocutory appeals. See, e.g., Sanchez v. Walker County Dept, of Family & Children Services, 235 Ga. 817, 818, 221 S.E.2d 589 (1976); In re Marriage of Kitchen, 126 Ill. App.3d 192, 194-95, 81 Ill. Dec. 644, 467 N.E.2d 344 (1984). Likewise, a limited number of jurisdictions recognize temporary custody orders as final for the purpose of immediate appeal. See, e.g., In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486, 495 (1992); In re Murray, 52 Ohio St.3d 155, 159-61, 556 N.E.2d 1169 (1990). On balance, we find that the rationale for allowing immediate appeals adopted in the latter jurisdictions, in conjunction with the practice in other jurisdictions that allow these appeals by special interlocutory appeals rules, to be more persuasive than the traditional reasons of judicial economy generally offered as a justification to adhere to a rule of nonappealability.
Madigan, 620 A.2d at 1279 n.9.
While the supreme court of Connecticut is free to reject our supreme court’s precedent, we are not. We have no authority to overrule our supreme court on this issue. See Hodge v. Hodge, 97 Ark. App. 217, 223-24, 245 S.W.3d 695, 700 (2006) (Baker, J. dissenting). Our supreme court has limited the appealability of temporary custody orders, and until our supreme court rules otherwise, we must adhere to its rule of nonappealability.
Accordingly, this appeal is dismissed.
Hart and Heffley, JJ., agree. | [
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Sarah J. Heffley, Judge.
Following the search of a motel room, appellants Daniel Anderson and Patrick Givens were charged by information with the offenses of possession of cocaine with intent to deliver, possession of MDMA (ecstacy) with intent to deliver, the unauthorized use of another’s property, and possession of drug paraphernalia. Tried to the bench, appellants were found guilty of all charges. Anderson was sentenced to concurrent terms of twenty-five years in prison, while Givens was sentenced to a total of twenty years in prison. The sole issue presented in this joint appeal is that the trial court erred in denying their motion to suppress the evidence that was seized during the search of the motel room. We affirm in agreement with the trial court’s finding that appellants did not meet their burden of proving that they possessed a legitimate expectation of privacy in the motel room.
On February 11, 2007, Officer John Nannen of the North Little Rock Police Department received a tip from a confidential informant that two black males, known as “Little Pat” and “Dan,” were selling crack cocaine and ecstacy out of room 180 at the Howardjohnson Motel on West Pershing Avenue. The informant also advised that narcotics were being stored in “Little Pat’s” PT Cruiser automobile that was parked by the room. Officer Nannen, Investigator Jeff Glover, and Officer David Petit went to the motel at 4:30 p.m., bringing along Officer Petit’s dog that was trained in the detection of narcotics. The officers observed a PT Cruiser in the parking lot, and the dog alerted on the right, rear door seam of the vehicle. The officers then approached room 180 and knocked five or six times before the door was answered by Anderson, who appeared lethargic and sleepy. Upon inquiry, Anderson stated he was not responsible for the PT Cruiser but that he would get the person who was. Anderson left the door open, briefly went into the bathroom, then sat on the bed farthest from the door, and roused Givens, who was asleep on the bed near the door.
Once awakened, Givens acknowledged that he had borrowed the PT Cruiser from his sister, and he consented to a search of the vehicle. Givens then got dressed and accompanied Officers Nannen and Petit to the vehicle, while Investigator Glover and Anderson remained in the room. The officers found no drugs in the vehicle, but they located $4,360 in cash in the console. Officer Nannen asked Givens for permission to search the motel room, and Givens gave it. Anderson was also asked for consent to search the room, and he consented as well.
During the search, a Crown Royal bag and a scale with residue on it were found underneath the covers on the bed where Givens had been sleeping. Inside the Crown Royal bag were 161 ecstacy pills and a number of plastic baggies containing a total of sixty grams of cocaine. More pills and cocaine were found in the bathroom under a towel on a rack above the toilet. None of the officers recalled seeing any luggage or personal belongings in the motel room. Officer Nannen testified that he would have been required to inventory any personal items found in the room and that no inventory was made.
Testimony from the manager of the motel established that a person named Marlin Dwayne Patterson rented room 180 on February 11 for one day. Check-out time was the following day at noon.
Based on the testimony, appellants argued that suppression was mandated under Ark. R. Crim. P. 11.1 (c), because the officers had not advised them of their right to refuse permission to search the room. Rule 11.1(c) provides:
A search of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent. For purposes of this subsection, a “dwelling” means a building or other structure where any person lives or which is customarily used for overnight accommodation of persons. Each unit of a structure divided into separately occupied units is itself a dwelling.
The State did not respond to appellants’ contention directly but argued instead that appellants had not proven that they possessed a legitimate expectation of privacy in the motel room because it was registered in the name of a third party, because appellants had no personal possessions in the room, and because the search occurred in the afternoon hours with no showing that appellants were to be overnight guests in the room. The trial court accepted the State’s argument and denied the motion to suppress.
In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and giving due weight to inferences drawn by the circuit court. State v. Harmon, 353 Ark. 568, 43 S.W.3d 75 (2003). We reverse only if the circuit court’s ruling is clearly erroneous or clearly against the preponderance of the evidence. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007).
Fourth Amendment rights against unreasonable searches and seizures are personal in nature. Wigley v. State, 73 Ark. App. 399, 44 S.W.3d 751 (2001). Thus, a person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by the search of a third person’s premises or property. Travis v. State, 95 Ark. App. 63, 233 S.W.3d 705 (2006). For a person to claim the protection of the Fourth Amendment, the pertinent inquiry is whether the person manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Id.
It is well settled that the defendant, as the proponent of a motion to suppress, bears the burden of establishing that his Fourth Amendment rights have been violated. Id. To meet that burden, the defendant may testify at the suppression hearing without fear of his testimony being used against him at trial. Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998).
With the decision in Minnesota v. Olsen, 495 U.S. 91 (1990), the Supreme Court announced that a person’s status as an overnight guest is alone sufficient to establish a legitimate expectation of privacy in the dwelling of the host. However, the Court has also held that a visitor, who is merely present with the consent of the householder, may not claim Fourth-Amendment protection. Minnesota v. Carter, 525 U.S. 83 (1998). In Carter, id., the Court determined that the defendant who was visiting someone else’s apartment for a short time for the purpose of packaging cocaine did not possess a legitimate expectation of privacy in the apartment.
The expectation of privacy associated with a person’s home applies with “equal force to a properly rented motel room during the rental period.” United States v. Rambo, 789 F.2d 1289, 1296 (8th Cir. 1986). However, a defendant challenging a search and seizure occurring in the motel room of a third person must “demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Carter, 525 U.S. at 88. A mere visitor, a person who is not an overnight guest, usually lacks a rightful expectation of privacy when present in the motel room of another. United States v. Sturgis, 238 F.3d 956 (8th Cir. 2001).
Consistent with these principles, Arkansas decisions recognize that invited guests of the registered occupant of a motel room may possess a legitimate expectation of privacy in the room, depending on the circumstances. In Owen v. State, 75 Ark. App. 39, 53 S.W.3d 62 (2001), we held that the defendant had standing to contest the search of a motel room where he had permission from the registered occupant to stay overnight in the room, he had obtained a key from the desk clerk, and he was present when the officers entered the'room. By contrast, in Rockett & Nooner v. State, 319 Ark. 335, 891 S.W.2d 366 (1995), our supreme court held that Nooner failed to prove a legitimate expectation of privacy in a motel room registered to another person in which he was present for only a brief time. See also Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990) (holding that the Fourth Amendment does not stretch so far as to grant a privacy interest in hotel rooms rented to a third party where the defendant did nothing more than go inside the room for short periods of time).
Along similar lines, other courts have held that a defendant cannot establish a reasonable expectation of privacy in a motel room that is registered to a third party absent proof of a relationship with the registered guest. For instance, in United States v. Conway, 73 F.3d 975 (10th Cir. 1995), the defendant answered the motel room door to the police at 1:00 a.m. in a state of complete undress and claimed that he was there for the purpose of having sexual relations with his female companion. The court found that the defendant had not met his burden of proof because he had offered no evidence that he was an invited guest of the registered occupant. Also in United States v. Carr, 939 F.2d 1442 (10th Cir. 1991), the defendant’s three-week occupancy of a motel room did not confer standing where there was no evidence presented to show that the room was registered to him or that he was sharing the room with the registered occupant.
Examining the facts of this case, the record shows only that appellants were napping during the afternoon in a motel room that was registered to another person and that they had no personal belongings with them in the room. Otherwise, the nature of appellants’ presence in the room and their status vis-á-vis the registered occupant were completely unexplained. Appellants failed to offer any evidence revealing how they came to be present in someone else’s motel room, or how long they had been there. Appellants did not pay for the room, and there was no evidence that they had a key to it. Unlike Owen v. State, supra, there was no evidence introduced to show that appellants knew the registered occupant of the motel room or that they had permission from the registered occupant to stay overnight in the room. And, we cannot assume, without any factual support, that appellants’ presence was somehow authorized simply because they were asleep in the room, as the record could just as easily suggest that appellants surreptitiously gained entry to the room without the knowledge and invitation of the registered occupant.
Clearly, the appellants had the burden of proof on this issue. Travis v. State, supra. The decisions in Minnesota v. Carter, supra, and Rockett & Nooner v. State, supra, instruct that a defendant’s transitory presence in the premises of another does not automatically bestow a right under the Fourth Amendment to challenge the legality of a search of the premises. It is thus our conclusion that appellants’ physical presence in the motel room, without more, does not establish that they possessed a legitimate expectation of privacy in the motel room that society is prepared to accept as reasonable. Consequently, we affirm the trial court’s decision, because it is not clearly erroneous.
Pittman, C.J., Bird and Vaught, JJ., agree.
Robbins and Baker, JJ., dissent.
The trial court also revoked Anderson’s probation which he had previously received for possession of cocaine with intent to deliver and possession of marijuana, but Anderson does not challenge the revocation in this appeal. | [
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John Mauzy Pittman, Chief Judge.
This is an appeal from J a directed verdict granted to the defendant-appellee physician in a medical malpractice case. The plaintiff-appellant patient asserts that the trial court erred in granting a directed verdict because he had established a prima facie case and because material questions of fact remained for the jury with respect to negligence and proximate cause. We agree, and we reverse and remand.
In determining whether a directed verdict was properly granted, we view the evidence in the light most favorable to the party against whom the verdict was sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). A motion for a directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Mankey v. Wal-Mart Stores, Inc., supra.
Appellant presented as a patient to appellee, Dr. Kumar, a urologist. Dr. Kumar diagnosed appellant as suffering from a fistula, as well as communication between the bladder and the bowel resulting from multiple diverticula in the sigmoid colon where it overlapped the bladder. Dr. Kumar recommended that appellant undergo surgery and anticipated that it would be necessary to remove part of the bowel and possibly to perform a colostomy during the procedure. There was evidence that Dr. Kumar also told appellant that, as a urologist, he would not be comfortable performing the procedure without the assistance of a general surgeon, and that a general surgeon would therefore perform the bowel portion of the surgery and would be present in the operating theater during the entire procedure. Dr. Kumar then wrote a letter to appellant’s family doctor stating that he was enlisting the help of general surgery colleagues to assist in appellant’s surgery. At Dr. Kumar’s direction, a hospital resident obtained a consent form from appellant that expressly authorized Drs. Kumar and Heaton to perform the surgery. Dr. Heaton was a general surgeon at the facility, but no effort was made to contact him; therefore, he was not present when the surgery was performed, and no other general surgeon helped with the surgery.
During the surgery, appellant suffered an injury to his ureter as the result of an obstruction. A CT scan showed that a surgical clip had been left in his body posterior to the ureter. Dr. Kumar admitted at trial that the injury was probably iatrogenic, i.e., caused by a physician, and that the surgical clip was a possible cause of the obstruction. Subsequent surgical attempts to repair appellant’s injured ureter failed, and ultimately it was necessary to remove the kidney attached to that ureter and transplant it to the other side of appellant’s body to retain its functionality.
The pivotal issue in this case is whether appellant consented to the procedure that was performed. Clearly, there was evidence that he did not. Appellant testified that he was assured by Dr. Kumar that a board-certified surgeon would assist him in performing abdominal surgery on appellant. The surgeon who was to assist Dr. Kumar was named on the consent sheet that appellant signed. It is uncontested that Dr. Kumar did not contact the named surgeon to request that he assist in the procedure, and there was evidence to support a jury finding that Dr. Kumar completed the entire surgery himself; that appellant was injured as the result of Dr. Kumar’s performance of the surgery; and that appellant required extensive medical treatment, including an auto-transplant of one of his kidneys, as a result of an iatrogenic injury during the surgery.
Dr. Kumar raises questions concerning the certainty of the expert medical testimony regarding the standard of care, but this is a chimera. In addition to the testimony of appellant’s expert that consent based on false and misleading information violated the standard of care, Dr. Kumar himself testified that a consent obtained under the facts and circumstances alleged by the appellant would be invalid, and that a procedure performed without a valid consent would be outside the standard of care. Dr. Kumar also argues that there was no proof that the failure to employ a general surgeon to assist increased the likelihood of the injury that appellant sustained, but this argument is based on the presumption that appellant would have had the surgery performed in any event. We note that there was testimony that appellant’s condition was not immediately life threatening and that many people choose to endure the condition for many years before opting for surgery, and appellant testified positively that he would not have had the surgery had he known that no general surgeon would be in attendance. Arkansas Code Annotated section 16-114-206(b)(l) (Repl. 2006) provides in pertinent part:
[Wjhen the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person, the plaintiff shall have the burden of proving that the treatment, procedure, or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other medical care providers with similar training and experience at the time of the treatment, procedure, or surgery in the locality in which the medical care provider practices or in a similar locality.
Subsection (b)(2) of that statute states in pertinent part:
In determining whether the plaintiff has satisfied the requirements of subdivision (b)(1) of this section, the following matters shall also be considered as material issues:
(A) Whether a person of ordinary intelligence and awareness in a position similar to that of the injured person or persons giving consent on his or her behalf could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure, or surgery;
(B) Whether the injured party or the person giving consent on his or her behalf knew of the risks or hazards inherent in such treatment, procedure, or surgery;
(C) Whether the injured party would have undergone the treatment, procedure, or surgery regardless of the risk involved or whether he or she did not wish to be informed thereof....
Lack of informed consent may be the proximate cause of an injury inflicted during surgery even where the patient does not testify positively that he would not have undergone the procedure had he been adequately informed. See, e.g., Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995). In Aronson, the supreme court adopted an objective standard for determining the effect of proximate cause in medical malpractice actions based on allegations that informed consent was lacking. Under this objective standard, causation is evaluated in terms of whether a reasonable and prudent patient in the plaintiff s position would have withheld consent to the treatment or procedure had the material risks been disclosed. Id.
In light of the evidence that appellant was informed that Dr. Kumar would not be comfortable performing the proposed surgery without a general surgeon in attendance; that Dr. Kumar wrote a letter affirming that a general surgeon would in fact be in attendance; that a general surgeon was specifically named in the consent that appellant executed; and the expert testimony that it was good medical practice for a urologist to associate a general surgeon to assist in such circumstances, we hold that it was for the jury to decide whether a reasonable and prudent patient would have withheld consent to the surgery in the absence of the misrepresentation that a general surgeon would be present.
Reversed and remanded.
Baker and Hunt, JJ., agree. | [
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Bruce Bullion, Special Judge.
This appeal involves the question of insurance coverage provided to a permitted driver in an automobile liability policy. The driver-employee of Allison Farms and Trucking, Inc., Mr. Videll, has been sued in tort by his co-employee, Mr. Hancock, for injuries received in an accident while they were delivering a load of rice for their employer. Mr. Videll made demand upon the employer’s automobile liability insurance carrier, Tri-State Insurance Co., to furnish him a defense to the Hancock suit and pay whatever judgment was rendered against him. Tri-State filed this action seeking a declaratory judgment that it owed no duty to Mr. Videll in that suit under the undisputed facts. All parties moved for summary judgment, and after a hearing the trial court entered judgment that the Tri-State policy, in the circumstances of this case, excluded the coverage that Mr. Videll sought. This appeal ensued. We affirm.
In November, 1988, Riceland Foods engaged Allison Farms and Trucking, Inc. to transport a truck load of rice from its Jonesboro, Arkansas, plant to a consignee in Battle Creek, Michigan. The trucking company assigned two of its drivers, Messrs. Hancock and Videll, to drive the load of rice from origin to destination. Their driving format was that one would drive for a specified period while the other slept, or rested, in the sleeper compartment of the truck. They would then switch places, and this enabled the truck to remain in constant motion, except for short stops for coffee, and the like. While in Michigan, when Mr. Videll was driving, the truck was involved in an accident resulting in injuries to both men.
The Insurance Company of North America (INA), the workers’ compensation insurance carrier for the trucking company, has paid both of these employees the benefits provided under that law. Mr. Hancock then filed a tort suit against his co-driver, Mr. Videll, to recover damages for his injuries. Mr. Videll called upon Tri-State to furnish him a defense, and it filed this suit for a declaratory judgment that it owed no duty to Mr. Videll under the circumstances of this case. INA is present in the suit to protect its subrogation rights in the event Mr. Hancock recovers judgment in that case.
Under our system of law, parties are free to make contracts based on whatever terms and conditions they agree upon, provided it is not illegal or tainted with some infirmity such as fraud, overreaching, or the like. The contracting parties to the document we have before us, Tri-State and the trucking company, agreed to the following conditions as a part of the contract:
SECTION II. LIABILITY COVERAGE.
A. COVERAGE. We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ ... to which this insurance applies.. . . [ W] e have no duty to defend ‘suits’ for ‘bodily injury’ . . . not covered by this Coverage Form.
1. WHO IS AN INSURED. The following are ‘insureds’:
a. You for any covered ‘auto’.
b. Anyone else while using with your permission a covered ‘auto’f.j
B. EXCLUSIONS. This insurance does not apply to any of the following:
3. WORKERS COMPENSATION. Any obligation for which the ‘insured’ or the ‘insured’s’ insurer may be held liable under any workers’ compensation [law.]
4. EMPLOYEE INDEMNIFICATION AND EMPLOYER’S LIABILITY. ‘Bodily injury’ to: (a) An employee of the ‘insured’ arising out of and in the course of employment by the ‘insured’. . . . This exclusion applies: (1) Whether the ‘insured’ may be liable as an employer or in any other capacity[.]
5. FELLOW EMPLOYEE. ‘Bodily injury’ to any fellow employee of the ‘insured’ arising out of and in the course of the fellow employee’s employment.
SECTION V. DEFINITIONS
D. ‘Insured’ means any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage. Except with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or ‘suit’ is brought.
The appellants do not contend that any of these quoted provisions are illegal or infirm; instead they urge that exclusions 3,4, and 5 are void in the circumstances of this suit because of the definition of the word ‘insured’ in Section V.D., above. The argument is twofold: (a) the word ‘insured’ applies only to the person requesting the coverage and does not include the “named insured”; and (b) the wording of Section V.D. that provides “the coverage applies separately to each ‘insured’ ” nullifies the three exclusions. This last argument is based upon a Wyoming case, Barnette v. The Hartford Ins. Group, 653 P.2d 1375 (Wyo.1982), which will be mentioned later.
It is the duty of courts to enforce contracts as they are written and in accordance with the ordinary meaning of the language used and the overall intent and purpose of the parties. If some ambiguity creeps in, the interpreting court must first seek resolution within the wording of the instrument before resort to extraneous information is used.
It is very apparent to us that the intent of these contracting parties in inserting the three exclusionary clauses, above, was an attempt to abide by the Arkansas law and workers’ compensation law and public policy expressed thereby. There is nothing vague or indecisive in the language of the three exclusions, and the three of them relate to the same problem: work-related injury to employees. This was a risk excluded from the coverage, and if for no other reason (actually they do not need a reason so long as it is not illegal or tainted with infirmity), it is recognition that work-related injuries to employees are to be compensated under the provisions of the workers’ compensation law, and none other insofar as these parties and their contract are concerned.
The recognition of this intent brings into focus more clearly the true meaning of the word “insured” as used in Section V.D. The “named” insured is always a part of its meaning; otherwise the clauses become almost meaningless. There are not many employees who themselves have employees, or carry workers’ compensation insurance, and to limit its meaning to the permitted driver, as here, makes them almost idle words. It is our opinion that the word clearly relates to and includes the named insured, one of the contracting parties. In this way, a reasonable and meaningful interpretation is given to the word, and allows the other clauses to remain as a part of the contract as written. And we do not consider this a far-fetched or strained interpretation — quite the opposite.
Be that as it may, however, even by the acceptance of the narrow meaning urged by the appellants, exclusion #5 excludes this coverage to Mr. Videll. For emphasis we again quote #5 in collated form as applied only to it:
[W]e have no duty to defend ‘suits’ for ‘bodily injury’ . . . not covered by this Coverage Form.. . . This insurance does not apply to . . . ‘bodily injury’ to any fellow employee of the ‘insured’ arising out of and in the course of the fellow employee’s employment.
Messrs. Hancock and Videll, at the time of the accident in Michigan, were fellow employees; Mr. Videll is the permitted driver insured seeking the coverage. The contracting parties agreed that under these circumstances there was no insurance coverage, and we must give force to this plain language.
The “separate coverage” language of Section V.D. in no way conflicts with the language of any of the three exclusions, and to determine that it nullifies them reaches for a conclusion without support. And while we are not called upon in this case to define the meaning of this phrase, only that it in no way conflicts with the exclusions, it would not be a difficult task to define it in complete harmony with all of the policy provisions; a way that agrees with, not detracts from, the intent of the parties. As an example, suppose the permitted driver is sued by someone other than a fellow employee, and the employer is not joined as a named defendant.
The Barnette case, supra, contains facts widely apart from the facts of this case, and the discussion of the policy provisions, and their quotation, leaves some doubt as to similarity to the language before us now. Nonetheless, even assuming they dealt with identical clauses under identical facts, we are more persuaded by the reasoning of the minority opinion in that case in that it reaches the better result under contract law. The fact of the matter is, we find no infirmity with the exclusionary clauses in the contract before us. They plainly provide that its coverage is denied to Mr. Videll in these circumstances. Tri-State owes him “no duty”, contractual or otherwise, according to the evidence before us. See Liberty Mutual Ins. Co. v. Jones, 427 So.2d 1117 (Fla. Dist. Ct. App. 1983); Julian Martin, Inc. v. Indiana Refrigeration Lines, Inc., 262 Ark. 671, 560 S.W.2d 228 (1978); Bryan v. Aetna Casualty and Sur. Co., 381 F.2d 872 (8th Cir. 1967); 12 Ronald A. Anderson, Couch Cyclopedia of Insurance Law § 45:545 (Mark S. Rhodes, ed., Rev. 2d ed. 1981). Job A. Sandoval, Annotation, Construction and Application of Provision of Automobile Liability Policy Expressly Excluding From Coverage Liability Arising From Actions Between Fellow Employees, 45 A.L.R. 3d 288 (1972).
The other three arguments of the appellants can be disposed of in short order. They are: (1) the policy exclusions violate State and Federal public policy; (2) the policy is ambiguous regarding the named insured; and (3) a question of fact exists as to whether Messrs. Hancock and Videll were employed by the named insured. The public policy of both our State and Nation is contrary to the argument of appellants. See TransAmerican Freight Lines, Inc. v. Brada Miller Freight Sys., 423 U.S. 28 (1975); Cook v. Wausau Underwriters Ins. Co., 299 Ark. 520, 772 S.W.2d 614 (1989); Ark. Code Ann. § 27-19-713(e) (1991 Supp.). Also, the evidence clearly establishes that the named insured in this policy is the trucking company, and that both Messrs. Hancock and Videll were its employees. There is a provision in the policy that provides that only vehicles that are listed on a schedule attached to the policy are insured. That list reflects there are four truck tractors and seven trailers belonging to the trucking company, and none other.
Given the plain meaning of the exclusionary clauses and the undisputed facts of this case, the granting of summary judgment was proper.
Cooper and Mayfield, JJ., dissent.
Rogers, J., not participating. | [
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John Mauzy Pittman, Judge.
The appellant in this work-J ers’ compensation case, a Mexican national, was employed by appellee Martinez Packing Company to pick and pack produce on farms in Texas and Arkansas. On September 1, 2001, appellant and other workers were directed to clean a warehouse owned by appellee Holden-Conner Seed and Grain and used by appellee Martinez Packing Company to store produce. Appellant was injured while driving a forklift in the warehouse. He filed a claim for benefits that was denied, the Commission finding that appellant was not performing employment services at the time of the injury; that appellant’s injury was not compensable because it was the result of horseplay; and that the agricultural farm labor exemption was applicable to appellee Martinez Packing Company. This appeal followed.
For reversal, appellant contends that the Commission erred in concluding that it was appellant’s burden to show that he was not engaged in horseplay; in finding that appellant’s injury was the result of horseplay; and in failing to impose liability for benefits upon appellee Holden-Conner Seed and Grain. We affirm.
The Commission correctly rejected appellant’s contention that horseplay was an affirmative defense which must be proven by the employer. Arkansas Code Annotated section 11 — 9-102(4) defines the meaning of “compensable injury” in the Arkansas Workers’ Compensation Law, and specifically excepts from that definition injuries caused by participation in horseplay. Ark. Code Ann. § 11-9-102(4) (B)(i) (R.epl. 2002). Insomuch as the employee in a workers’ compensation case has the burden of proving a compensable injury, Ark. Code Ann. § 11-9-102(4)(E) (Repl. 2002); see Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001), the Commission correctly held that appellant in the present case had the burden to prove that he sustained an injury while engaged in the performance of employment services rather than while engaged in horseplay.
Nor do we agree with appellant’s contention that the evidence is insufficient to support the Commission’s finding that his injury resulted from his participation in horseplay. In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence, i.e., evidence that a reasonable person might accept as adequate to support a conclusion. Carman v. Haworth, Inc., supra. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). Questions of weight and credibility are within the sole province of the Workers’ Compensation Commission, which is not required to believe the testimony of the claimant or of any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Strickland v. Primex Technologies, 82 Ark. App. 570, 120 S.W.3d 166 (2003). Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Id.
“Horseplay” has not been defined by statute or case law in Arkansas, except to note that its meaning is synonymous with the term “skylarking,” which is chiefly employed in English case law. Southern Cotton Oil Division v. Childress, 237 Ark. 909, 377 S.W.2d 167 (1964). This is instructive, as the verb “to skylark” describes a practice in which a sailor would run up and down the rigging of a ship in sport, graphically exemplifying the dictionary definition of “horseplay” as “rough or boisterous play.” Webster’s Third New International Dictionary (1961). In the present case, there was evidence that appellant was not authorized to operate the forklift but that, while the forklift operators were distracted by a fire, appellant got behind the wheel of the forklift, began driving the forklift very fast in tight circles “like a game,” and that he was “wasting time” and “playing” while doing so. On this record, we cannot say that the Commission erred in finding that the injury appellant sustained when the forklift overturned was the result of horseplay.
Given our resolution of this question, the remaining issue raised by appellant concerning the liability of appellee Holden-Conner Seed and Grain is moot, and we do not address it.
Affirmed.
Stroud, C.J., and Crabtree, J., agree. | [
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John F. Stroud, Jr., Chief Judge.
Appellant, Gerald Robinson, and appellee, Karen Ford-Robinson, were married January 28, 2000, separated on May 7, 2003, and a decree of divorce was entered on November 4, 2003. The parties had lived together since August 1997. Gerald had custody of his son, Austin, who was eighteen to twenty months old at the time Karen moved in with them; Austin’s birth-mother’s parental rights had been terminated by a divorce decree entered in the State of New York. At the time she filed for divorce, Karen initially alleged that Gerald was an unfit parent and asked that she be awarded custody of Austin; in a second amended complaint, she subsequently revised that request and instead asked that she be awarded visitation with Austin because of the mother-child relationship that she and Austin had developed since August 1997 and because it would be in Austin’s best interest for her to have visitation with him. The trial judge found that Karen had stood in loco parentis to Austin since he was eighteen months old, that he recognized her as his mother, and that it would be in Austin’s best interest to have visitation with Karen. Gerald filed a motion for reconsideration, which was deemed denied; he then filed his notice of appeal. On appeal, Gerald contends that the trial judge erred in granting Karen visitation. Specifically, he argues that the trial court erred in relying on Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), and Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997), because those rulings were overturned by Troxel v. Granville, 530 U.S. 57 (2000), and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). Alternatively, he argues that if this court holds that Golden and Rawlins were not overturned, then Karen “failed to meet the standard of proof set forth in Rawlins.” We disagree with his arguments and affirm the trial court’s award of visitation to Karen.
At trial, Gerald characterized Karen’s and Austin’s relationship as one of “buddies.” He said that he and Karen had discussed her being Austin’s mother, and he told her that adoption was not an option because Austin had a biological mother, Lisa Marie Robinson, although her parental rights had been terminated in their divorce. However, he admitted that he had described Karen’s relationship with Austin as that of “mother” in e-mails and conversations that he had over the years. He acknowledged that he had executed powers of attorney for Karen so that she could get medical care for Austin when he was away, both prior to and during their marriage, but he said that was not unusual because he was in the military.
Gerald objected to Karen having any contact with Austin after the divorce because he said that she had told him one of the reasons she left was because she was a nanny, not a wife or mother. He also said that since she left, Austin had not asked for her or asked to spend any time with her, and that Austin had never cried for Karen. Gerald said that he did not want to confuse Austin because Karen had been seeing a man from work. However, he admitted that he was also seeing someone, and that he had a sexual relationship with her.
Gerald said that Karen met him at the door when he came home from temporary duty and told him that she had moved out of their residence. Prior to telling Gerald that she was leaving, Karen had taken Austin over to her new apartment without Gerald’s knowledge and told him to pick out which room he wanted to be his room.
Gerald testified that he believed that Karen having visitation with Austin “would interfere with someone else playing a role model” in his life. He said that if Austin’s biological mother wanted to be in his life again, he thought it would be her right to have some sort of contact. He also said that he hoped that he would meet someone else to marry that Austin could call mother, and he had concerns about there being “too many mothers” in Austin’s life.
Karen testified that she came into Austin’s life when he was approximately eighteen months old, that she had been his mother for almost the last seven years, and that she loved him as if she was his mother and had loved him since the day she “laid eyes on him.” She described their relationship as “great,” and said that Austin had called her “Mommy” since he was a little over two years old. She stated that Austin did not know that she was not his birth mother until he was in first grade. She said that Austin was a sweet, lovable child, and that she wanted to continue to have some type of relationship with him although she had been very unhappy in her marriage to Gerald. She testified that she was not willing to try to prove that Gerald was an unfit parent.
In explaining her relationship with Austin, Karen said that she loved him and cared for him; that she went to all of his parent-teacher conferences, games, and school functions; and that she was a good mother and role model for him. She said that she wanted visitation because she loved Austin, they had a good relationship, and she felt that it would be in his best interest for them to be able to continue that relationship.
Karen admitted that she took Austin to her new residence and let him pick out a room before she told Gerald that she was moving out; however, she explained that she did not want Austin to think that she had “skipped town or abandoned him.” She agreed that it might be confusing for Austin to possibly end up having three mothers, but she also said that she thought it would be confusing for him not to have the person whom he called mother for over six years in his life anymore. She said that Gerald had told her that they were a package deal — if she did not want him then she could not have Austin.
Tommye Jo Ford, Karen’s mother, testified that Karen and Austin had a very close relationship and that Karen had immediately fallen in love with Austin when she met him. She said that the two of them really bonded as mother and son. She stated that Austin began referring to Karen very early in the relationship as Mommy. She said that Karen was Austin’s mother in every sense of the word for over six years, and that she believed that Austin would benefit from any visitation he had with Karen. She said that Austin was one of her grandchildren. She stated that she believed Gerald’s resistance to Austin seeing her or Karen came from the fact that his mother had remarried somewhere around sixteen times, from what she had been told. However, she said that she was not saying that Gerald was an unfit father; in fact, she stated that she had nothing negative to say about Gerald’s parenting ability.
Martha Wiley, an assistant director at Sylvan Hills Learning Center, testified that Austin was enrolled at the center and was a happy kid. She said that she did not know that Karen was his mother until Karen showed up at the center with cookies after she and Gerald had divorced. Wiley said that she had never seen Karen before, that Austin was not enthused to see her, and that he did not accept the cookies.
Linda Johnson, Gerald’s mother, testified that Austin was worried about his daddy being by himself and did not understand why his mother was “doing this” to his daddy. She said that she had never seen Austin cry because he missed his mother.
Serena Dempsey, Austin’s babysitter once or twice a month, said that she had not seen him cry because he missed his mother. She said that he did not ask about Karen, and once, when she asked him if he missed Karen, he told her, “no, not really.”
Domestic relations cases are reviewed de novo, and the trial judge’s findings will not be disturbed unless they are clearly against the preponderance of the evidence. Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997). On appeal, Gerald argues that the trial court erred in granting Karen visitation with Austin. Specifically, he argues that the trial court erred in relying on Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), and Golden v. Golden, supra, because those rulings were overturned by Troxel v. Granville, 530 U.S. 57 (2000), and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). We disagree.
We hold that the present case is distinguishable from Troxel and Linder, both of which concern grandparent visitation. Specifically, Troxel involved a statute from the State of Washington that allowed any person to petition the court for visitation rights at any time, and a trial court could grant visitation when it was determined that such visitation would serve the best interest of the child. In that case, the paternal grandparents petitioned for visitation with their two granddaughters after their son’s death and after the girls’ mother limited their visitation to one daytime visit per month. The superior court granted grandparent visitation one weekend per month, one week during the summer, and four hours on each of the grandparent’s birthdays. The Washington Court of Appeals reversed the visitation order and dismissed the case, and the Washington Supreme Court affirmed that decision. The United States Supreme Court granted certiorari and affirmed the denial of visitation in a plurality opinion.
In affirming the denial of visitation and holding the Washington statute unconstitutional, the Supreme Court recognized the “fundamental right of parents to make decisions concerning the care, custody, and control of their children,” 530 U.S. at 66, under the Fourteenth Amendment, and held that the “breathtakingly broad” statute infringed upon that fundamental right by permitting any third party who sought visitation to subject a parent’s decision regarding visitation to state-court review. The Troxel court held that there was a presumption that fit parents act in the best interests of their children, and that when the Washington Superior Court intervened, it gave no special weight to the mother’s determination of her children’s best interests, thus failing to provide any protection for the parent’s fundamental right to raise her daughters. The Court held that if a fit parent’s decision is subject to judicial review, there must be accorded at least some special weight to that fit parent’s determination.
However, the Court held that it did not define the “precise scope of the parental due process right in the visitation context. . . . Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.” 530 U.S. at 73.
In Linder, supra, our supreme court held that while our state’s grandparent-visitation statute was not facially invalid, it was unconstitutional as applied. In so finding, the supreme court held that the trial court found the mother to be a fit parent for all purposes except the issue of making a decision about her son’s relationship with his paternal grandparents. The court held that unfitness solely to decide visitation matters was not a compelling interest on the part of the State that warranted invasion of a parent’s fundamental parenting rights and reversed and dismissed the order providing visitation to the grandparents. We also note Justice Hannah’s dissent in Linder, in which he stated:
I also write to emphasize that this decision is narrow in scope and applies only to visitation issues arising from application of Ark. Code Ann. § 9-13-103 (Repl. 2002). In other words, this decision is limited to an attempt by grandparents to obtain visitation under the subject statute. The analysis should not be confused and applied in a case where the State is determining custody, and visitation on other bas[e]s, including other statutory schemes, or under the State’s exercise of its sovereign parens patriae power in protection of the children of this State.
348 Ark. at 357-58, 72 S.W.3d at 861.
We hold that the facts of the present case are distinguishable from Troxel and Linder. Here, we are not dealing with statute-mandated visitation rights; rather, stepparent visitation is a creature of case law. Furthermore, the situation in the present case is one of a person whom the trial court found had stood in loco parentis to the child rather than a person or persons who simply had a relationship with the child. We hold that the finding of an in loco parentis relationship is different from the grandparent relationships found in Troxel and Linder because it concerns a person who in all practical respects was a parent.
This court’s decision in Golden, supra, is distinguishable from Troxel, supra, and Linder, supra, and we hold that it supports affirming the trial judge’s decision to grant Karen visitation with Austin. In Golden, the trial judge found that the stepfather stood in loco parentis to the child and granted him visitation. On appeal, the natural mother argued that the trial judge erred in finding that the stepfather stood “in loco parentis” to the child; however, this court found no error in the trial judge’s finding. Citing Black’s Law Dictionary (6th ed. 1990), the court defined in loco parentis as “in the place of a parent; instead of a parent; charged, factitiously, with a parent’s rights, duties, and responsibilities,” and stated that the supreme court had held in Moon Distrib. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968), that a stepmother stood in loco parentis to the minor child when they lived in the same home as mother and daughter.
In Golden, this court held that the circumstances warranted the finding of in loco parentis because the stepfather had lived with the child as his father from October 1993 until November 1994 and from December 1994 until April 1995. Although the stepfather mistakenly believed that he was the natural father in that case, he was the only father the child had ever known. In the present case, Karen was the only mother that Austin ever knew, and Austin believed that she was his natural mother until he was in the first grade. Furthermore, Karen was involved in Austin’s life for a much longer period of time than was the stepfather in the Golden case. We cannot say that the trial judge was clearly erroneous in finding that Karen stood in loco parentis to Austin. We also hold that Golden clearly indicates that the status of in loco parentis permits, where circumstances warrant, that a stepparent be granted visitation with a stepchild, and such circumstances are present in this case.
Gerald alternatively argues that Karen “failed to meet the standard of proof set forth in Rawlins.” We find no merit in this contention. Rawlins, supra, involved whether a stepparent could gain custody of a stepchild, not whether a stepparent could be granted visitation. In that case, our supreme court held that a stepparent could be awarded custody if it was established that the natural parent was unfit; however, there was a preference for natural parents in custody matters when the natural parent was a fit and proper person for custody. In that particular case, although the supreme court held that a stepparent could be granted custody, the court reversed the grant of custody to the stepfather because the trial judge had specifically found that the mother was a fit and proper person for custody. We do not find Rawlins to be instructive with regard to the particular situation before us.
We affirm the trial court’s grant of visitation to Karen based upon the determination that she stood in loco parentis to Austin.
Affirmed.
Pittman and Crabtree, JJ., agree. | [
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John B. Robbins, Judge.
This appeal concerns a will contest J involving the estate of Ms. Ouida Lawhom. Appellants Robert Fischer and Linda Floweth are former stepchildren of the decedent, Ouida Lawhom, and were the sole beneficiaries of a will Ms. Lawhom executed on July 29,1994. Appellee Robert Kinzalow, Ms. Lawhom’s male companion for the eleven years preceding her death, was the sole beneficiary of a handwritten will she signed in the hospital during Thursday afternoon, March 28, 2002. Ms. Lawhom had no children and no spouse at the time of her death from cancer at age 69. She died on March 30, 2002. Appellants appeal the order of the Crittenden County Circuit Court that admitted Ms. Lawhom’s March 28,2002, will to probate and dismissed appellants’ objection to probate.
In challenging the 2002 will, appellants argued to the trial court (1) that the testatrix was not competent at the time of its execution, (2) that the testatrix was subject to duress and overreaching, and (3) that the will was not properly executed. Appellants did not prevail at trial, and on appeal, they argue that Ms. Lawhom was not competent at the time of the execution of the 2002 will and that the handwritten will was not properly executed pursuant to Arkansas law. We disagree with their arguments and affirm.
The evidence presented to the trial judge included that of appellant Howeth. She said that she was very close to her former step-mother and that Ms. Lawhorn had given her a power of attorney at the same time that her 1994 will was executed. In addition, Howeth said that she was also given authority to write checks from Lawhorn’s account in 1994. The only time Howeth ever wrote checks on the account, though, was to pay some of Lawhorn’s bills after Lawhorn’s surgery in January 2002.
Howeth came to see Lawhorn on Thursday, March 28, driving from Texas and arriving at the hospital around 5:00 or 6:00 p.m. Howeth did not think that Lawhorn was of sound mind at that point. Howeth did not remember Lawhorn saying much to her except that she was glad Howeth was there. Howeth left the hospital for part of Friday, March 29 and returned on Saturday. Howeth believed that she was the only person in the room with Lawhorn when she died Saturday morning. Howeth said that she, appellant Fischer, and appellee Kinzalow all contributed to the cost of Lawhorn’s funeral. In looking over the 2002 will and a check purportedly written by Lawhorn on that same date, Howeth said that the signatures did not look like Lawhorn’s but instead looked “forced.”
Appellant Fischer testified that he arrived at the hospital on March 28 at around 8:30 a.m. and that Ms. Lawhorn asked her doctors to provide him with complete information about her medical condition. The doctor took Fischer out into the hallway and explained that Ms. Lawhorn had terminal pancreatic cancer. Fischer said that Ms. Lawhorn was cognizant of her surroundings, her impending death, her family, her estate, the existence and location of the 1994 will, the need to plan a funeral, and her desire that Mr. Kinzalow be taken care of after her death. Fischer said Lawhorn told him that the 1994 will split everything evenly between him and Howeth. Fischer said that Lawhorn wanted Kinzalow to be allowed to continue to live at her residence for the rest of his life if he wanted. Fischer intended to honor that request. Fischer believed that she was cognizant until noon or early afternoon, when she became very groggy due to the Demerol used to ease her pain.
Lorrine Long, Brenda Hodgson, and Robert Martin also came to the hospital to visit that day. Hodgson, formerly a niece by marriage to Ms. Lawhorn, explained that she and Mr. Martin lived together and rented a cottage for occasional use from Ms. Lawhorn; they were friends with Ms. Long. They all arrived after the noon hour and were present until mid-afternoon. Their testimonies were uniform in that they agreed that Ms. Lawhorn was cognizant, alert, and conversational during the visit. They also agreed that the other visitors left the room, including Mr. Kinza-low, during the time that the handwritten will was requested, written, read, and signed.
Hodgson testified that Ms. Lawhorn asked her if she had a piece of paper and if she would write something for her. Hodgson found a dental form in her purse and used the back of it. Ms. Lawhorn told her that she wanted Kinzalow to be taken care of and for him to have everything. Hodgson testified that she wrote out a will according to Ms. Lawhorn’s wishes, that she read the will back to Ms. Lawhorn, and that she acknowledged that it contained her wishes. The document read:
March 28, 2002
Baptist East Hospital
I Ouida B. Lawhorn being of sound mind & memory do at this time declare this is my last will & testament. From this day on all other wills to be null, void, & revoked. Being a resident of Horseshoe Lake Arkansas give & bequeath all of my estate Real and Personal to Robert Kinzalow now & forever.
Signed & Witnessed on this 28th Day March 2002
Brenda L. Hodgson [signature]
Robert Martin [signature] Ouida Lawhorn [signature]
Ouida Lawhorn
Hodgson said she knew how to prepare a will because of her experiences when her mother died about three years before. Hodgson watched Ms. Lawhorn sign the will as she lay in bed using the roll-away hospital table. Thereafter, Hodgson and Martin signed as witnesses, all done in presence of one another. Hodgson said she folded the paper and put it in her purse, and she told no one else about it until after she had consulted an attorney to determine if it was valid. Hodgson was certain that Ms. Lawhorn was of sound mind at the time.
Robert Martin testified that he could not hear all of the conversation between Hodgson and Ms. Lawhorn, but he heard enough to understand that a will was being drafted at Ms. Lawhorn’s request, that it was intended to be her last will and testament, and that he and Hodgson were to be the attesting witnesses. Martin watched Ms. Lawhorn sign it, watched Hodgson sign it, and then he signed it. Martin said Ms. Lawhorn was treating herself that day for pain by pushing a button to receive a dose of medicine. Notwithstanding that fact, Martin believed she understood what she was saying and doing.
Lorrine Long corroborated the testimony of both Hodgson and Martin. Long testified that she was also a weekend renter of Ms. Lawhorn and that when she came to visit that day, Ms. Lawhorn asked about Long’s grandchildren by name. Long said Ms. Lawhorn knew what she was doing and did not appear to be confused, even though she had self-induced intravenous Demerol. As the will was being prepared, Long said she was not near enough to hear everything that was said because she was across the room. However, Long said she had seen and heard Ms. Lawhorn asking for a piece of paper, Hodgson writing down what Ms. Lawhorn wanted, Ms. Lawhorn signing it, and then Hodgson and Martin signing it. The entirety of drafting, reading, and signing the paper took in her estimate twenty to thirty minutes.
Ouida Smith testified that Ms. Lawhorn was her aunt and that she (Smith) was the person who eventually filed the handwritten will with the probate court. Smith said her aunt had called her about a week before she died and mentioned that she had made a mistake on her will, but her aunt did not explain what she meant. Smith came to the hospital on the morning of March 28 and stayed until some time between 4:00 p.m. and 5:00 p.m. Smith was not present when the 2002 will was prepared and signed. Smith stated that her aunt was cognizant that day, that her aunt comforted her upon her departure and told her not to be upset about her illness and imminent death, and that she was talking to other people at the hospital. Smith returned the next day accompanied by her husband, and said that though her aunt was weaker, she still recognized her and her husband. Smith said that Ms. Lawhorn asked about her mother-in-law’s health in that conversation, because they were friends. Smith verified that the signature on the 2002 will was Ms. Lawhorn’s. She compared her aunt’s signature on the will with those written on various checks; she believed that they were all Ms. Lawhorn’s signatures.
Mildred Cosby, who is Smith’s mother and Lawhorn’s sister-in-law, testified that she had visited Lawhorn in the hospital about a week prior to her death. Cosby testified that when she came into the hospital room, Lawhorn told her right away that she had made a mistake in her will.
Robert Lambie came to see Ms. Lawhorn on March 28 during the late afternoon and evening. Lambie was a friend of both Ms. Lawhorn and Mr. Kinzalow, who were “like parents” to him. Lambie said that Ms. Lawhorn was awake, aware, and talking to the people who visited her that day; she did not appear to be under the influence of heavy narcotics. Lambie said that Ms. Lawhorn asked his wife Diane about an eye injury that Diane had suffered earlier. Lambie observed Ms. Lawhorn sitting on the side of the bed and writing a check for a debt owed to “Tommy,” hearing Mr. Kinzalow and Ms. Lawhorn discuss the amount and noting that Ms. Lawhorn was able to compute the amount in her head faster than Kinzalow could do so on paper. Lambie and his wife left that evening at around 6:00 or 7:00 p.m. When Lambie visited Ms. Lawhorn the next day, she was heavily medicated.
Mr. Kinzalow testified that he was at the hospital taking care of Ms. Lawhorn, but he was not present when the will was prepared and signed, nor did he know of its existence until weeks after her death. Kinzalow said that he and Ms. Lawhorn had lived together for eleven years, but that she had been in and out of the hospital for the last three months of her life. Kinzalow said that he would go home and sleep only if someone else would come stay with her. When she was in the hospital, Kinzalow said he would leave her room only if someone else was there.
Kinzalow agreed that Ms. Lawhorn wrote a check on March 28 in order to repay a $2200 loan to Tommy Scarborough and that she was not drugged-up at the time. He verified that her signature was on the 2002 will and was very much like the signature on the check she wrote that same day. Kinzalow believed that the doctor’s notes were correct, that Ms. Lawhorn became lethargic and less functional by the afternoon of March 29 when the automatic drip of narcotics began, but that up to that point, he thought she was of sound mind, talkative, and aware. According to the hospital records, Kinzalow was in the room when she died the next morning, March 30, at 8:25, and the family was to be contacted. Kinzalow said he later wrote a check to Howeth for his part of Lawhorn’s funeral expenses.
After considering the evidence presented, the trial judge concluded that the 2002 will was properly prepared and executed in substantial compliance with Ark. Code Ann. § 28-25-103 (1987); that there was no proof of duress or overreaching worked against the testatrix; and that there was no proof of incompetence of the testatrix. A timely notice of appeal was filed after the order was entered of record.
We review probate matters de novo but will not reverse probate findings of fact unless they are clearly erroneous. McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003); Morton v. Patterson, 75 Ark. App. 62, 54 S.W.3d 137 (2001). A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Morton, supra. We also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. McAdams, supra.
The first point on appeal advanced by appellants is that the trial court clearly erred by finding that Ms. Lawhorn was competent to make and execute the 2002 will. We disagree.
The party challenging the validity of a will is required to prove by a preponderance of the evidence that the testator lacked the mental capacity or was unduly influenced at the time the will was executed. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963); Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983); Oliver v. Griffe, 8 Ark. App. 152, 649 S.W.2d 192 (1983). Generally, mental or testamentary capacity means that the testatrix must be able to retain in her mind, without prompting, the extent and condition of her property, to comprehend to whom she is giving it, the relation of those entitled to her bounty, and the deserts of those whom she excludes from her will. Hiler v. Cude, Ex’r, 248 Ark. 1065, 455 S.W.2d 891 (1970). Complete sanity in a medical sense at all times is not essential to testamentary capacity provided that capacity exists at the time the will is executed, during a lucid interval. Evidence of the testator’s mental condition, both before and after execution of the will at issue, is relevant to show his mental condition at the time he executed the will. See Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). The test is whether the testatrix at the time the will was executed had a fair comprehension of the nature and extent of her property and to whom she was giving it. Scott v. Dodson, Executor, 214 Ark. 1, 214 S.W.2d 357 (1948).
Appellants urge us to hold that because of the hurried and unusual nature of the drafting of this will, and the fact that its existence was concealed for some time after her death, the circumstances cannot support a finding that Lawhorn was competent at the time she signed the will. Appellee counters that the trial judge was not clearly erroneous to find that Ms. Lawhorn was competent when the will was executed in the early afternoon of March 28, based upon his belief in the testimonies of the witnesses who observed her demeanor that day. We cannot say that the credibility determination made by the trial judge was clearly erroneous. Thus, we affirm this point.
Appellants also argue in regard to mental capacity that Hodgson and Martin were indirect beneficiaries of the will such that the burden shifted to appellees to demonstrate beyond a reasonable doubt that she possessed mental capacity and was not unduly influenced. This argument was never presented in the trial, and appellants cite no authority for that proposition on appeal. Nevertheless, we disagree that the drafter and witnesses, who rented from Ms. Lawhorn, were beneficiaries under the will. Therefore, the burden of proof did not shift.
For their second point on appeal, appellants challenge whether the trial court clearly erred by finding substantial compliance with the statute setting out the requirements for proper execution of a will. That statute, Ark. Code Ann. § 28-25-103(a) (1987), provides in relevant part that the execution of a will, other than holographic, must be by the signature of the testator and of at least two witnesses. This statute further requires in subsection (b) that the testatrix declare to the attesting witnesses that the instrument is her will and sign the will. The attesting witnesses must sign at the request and in the presence of the testatrix. Id. at subsection (c).
Our supreme court has upheld execution of wills that “substantially comply” with this statute in certain circumstances. For instance, the supreme court has used this standard regarding the requirement that the testator declare to the witnesses that this is his will, Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985); Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983), and to the requirement that the witnesses must sign at the request of the testator, Hanel v. Springle, Adm’r, 237 Ark. 356, 372 S.W.2d 822 (1963). See also Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993). Appellants concede these points of law, agreeing that the purpose of the statute is to protect such conveyances against fraud and deception but not impede them by technicalities. See Hanel v. Springle, supra. Instead, appellants attempt to distinguish the cases above and demonstrate how, under these facts, there was not substantial compliance. Specifically, appellants assert that the testimony indicated that Ms. Lawhorn never declared to Martin that this was her last will and testament, nor did she specifically ask either witness to sign the will.
It is not required, however, that a testator recite precisely the words “this is my will,” although that is obviously the preferred practice. See Faith v. Singleton, supra; Green v. Holland, supra. The fact of publication can be inferred from all of the circumstances attending the execution of the will. Faith v. Singleton, supra; Rogers v. Diamond, 13 Ark. 474 (1852). The trial judge believed that Martin was standing by as Hodgson read the handwritten document to Ms. Lawhorn, and he further believed the testimony that Martin understood this to be Ms. Lawhorn’s last will and testament. We hold that the trial judge did not clearly err in finding substantial compliance with the requirement of declaring one’s will to the witnesses.
Appellants also challenge the finding that there was substantial compliance with the statutory requirement of the testatrix “requesting” her witnesses to sign. Where there is no indication of fraud, deception, undue influence, or imposition, this court avoids strict technical construction of statutory requirements in order to give effect to the testator’s wishes. In re Altheimer’s Estate, 221 Ark. 941, 256 S.W.2d 719 (1953). We seek to determine the intent of the testator. Morgan v. Green, 263 Ark. 125, 562 S.W.2d 612 (1978). While the facts surrounding the execution of Ms. Lawhorn’s will are troublesome, and had we been sitting as the trial court we might have held differently, we cannot conclude that the trial judge clearly erred.
Affirmed.
Bird and Roaf, JJ., agree.
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Karen R. Baker, Judge.
Appellant, Geoffrey Lueken, appeals from his conviction by a Pulaski County jury of manufacturing methamphetamine, possession of drug paraphernalia with the intent to manufacture methamphetamine, possession of drug paraphernalia, and maintaining a drug premises. He was sentenced to 120 months’ imprisonment in the Arkansas Department of Correction. He has four points on appeal. First, he argues that when all evidence is viewed in the fight most favorable to the State, the evidence was insufficient to support his conviction for manufacturing methamphetamine. Second, he argues that when all evidence is viewed in the fight most favorable to the State under a joint occupancy/constructive possession argument, the evidence was insufficient to support the conviction for possession of paraphernalia with intent to manufacture methamphetamine. Third, appellant argues that the evidence was insufficient to support his conviction for maintaining a drug premises when the evidence demonstrated that contraband belonged to a joint occupant of the residence who had an equal right to control the premises. Fourth, appellant argues that the trial court erred in refusing to admit a certified copy of the co-defendant’s judgment and conviction order, showing he had pled guilty to manufacturing methamphetamine under a reverse Rule 404(b) argument, as such was an exculpatory explanation for the paraphernalia found on the premises. We affirm.
On May 27, 2003, officers of the Little Rock Police Department executed a search warrant at the home of appellant and his roommate, Chris Southall. Upon the officers’ arrival at the home, appellant was discovered outside working on a vehicle. Officer Russ Littleton testified that a security pat-down was conducted on appellant, and a cigarette package containing a clear smoking device with a white residue and a small metal pipe was discovered in his right pants pocket. Appellant was taken into custody.
Officer Ken Blankenship testified that while Officer Little-ton stayed outside with appellant, he and other officers made their way into the home. He testified that when he reached the porch of the home a strong chemical odor was detected. Appellant’s roommate, Mr. Southall, was in the bathroom, and a woman was on the sofa near the television in the living room. Officer Blankenship searched the area upstairs, which was a loft area, where a computer and paperwork were kept. In the loft area, he found a chopper, used to chop ephedrine tablets, and a propane bottle. Officer Blankenship also was responsible for searching Mr. Southall’s vehicle, which was parked outside. A search of his vehicle revealed numerous items of drug paraphernalia, including a pickle jar with a bilayer liquid with a cloudy sediment on the bottom, paper plates, syringes, a drain opener, rust remover, a coffee filter inside a plastic bag containing red sludge, a 200 mm flask with tape around the top, a glass jar, and a glass.
Officer Greg Siegler explained that once the officers entered the home, there was a door straight ahead of them that was closed. He could hear someone inside a bathroom. Officer Siegler knocked on the door and identified himself. He heard the toilet flush. He told the person to come out; however, he heard the toilet flush again. Soon the door opened, Mr. Southall exited the bathroom and was taken into custody. Officer Siegler also testified that the woman who was discovered on the sofa in the living room was also taken into custody. A search of the living room revealed three straws, a glass smoking pipe, and four small plastic bags, which were all found near the coffee table.
The search continued into the kitchen and laundry room area. Officer Blankenship testified that a very strong odor was emanating from the kitchen and laundry room area. When he entered the small laundry room, he noticed boxes that had iodine stains on them. He also noticed staining on the walls as well as rust stains in the area in general. On the laundry room shelves and around the room, he found a gallon can of hexane, a funnel, plastic tubing, a container of salt, and coffee filters. A turkey baster, ajar containing a bilayer liquid, coffee filters, stirring sticks, a fan, a plastic bottle with tubing attached, and rubbing alcohol were also found in the laundry room. In the trash can in the laundry room, tubing with stains on it and tissue paper with stains on it were discovered.
Officer Michael Terry conducted a search of the bathroom and the kitchen. Once Mr. Southall was removed from the bathroom, Officer Terry discovered one small glass container with a small amount of white powder on it. In the kitchen, he found a “baster-type” object, a glass jar with a white powder type residue, a container of Red Devil lye, and a homemade smoking device.
A search of the southwest bedroom, conducted by officer Steve Pledger, revealed several items of drug paraphernalia. He discovered pipes used to ingest or smoke methamphetamine, a watertight bong used to smoke marijuana, and plastic bags with residue. Officer Pledger also testified as to items discovered on the porch of the residence. There he found a can of acetone, a can of toluene, which he testified is a thinner used in the separation of a methamphetamine cook, and a can of Coleman camp fuel.
Chris Harrison of the state crime lab testified that of the fourteen items tested for residue at the lab, seven of them tested positive for methamphetamine. Of the remaining items tested, some of them had chemicals commonly used in the manufacturing process. In his opinion, manufacturing was occurring at the residence. Moreover, on appellant’s person, officers found a small plastic packet containing a glass tube with a white residue on it and a small metal pipe. As to the amount of methamphetamine found on appellant, Harrison testified that there was just a small amount of residue. As a result, he did a methanol rinse and did not weigh it.
At the conclusion of the testimony, a jury in Pulaski County Circuit Court convicted appellant of manufacturing methamphetamine, possession of drug paraphernalia with the intent to manufacture methamphetamine, possession of drug paraphernalia, and maintaining a drug premise. This appeal followed.
Sufficiency of the Evidence
Because each of appellant’s first three arguments concerns the sufficiency of the evidence as to three of his convictions, we will address them together. Specifically, appellant argues that when all evidence is viewed in the light most favorable to the State, the evidence was insufficient to support each of his convictions for manufacturing methamphetamine, possession of paraphernalia with intent to manufacture methamphetamine, and maintaining a drug premise.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003). When reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the guilty verdict, considers only that evidence supporting the verdict, and affirms if substantial evidence supports the verdict. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). The test for determining sufficiency of the evidence is whether substantial evidence supports the verdict. Id. (citing Hatley v. State, 68 Ark. App. 209, 5 S.W.3d 86 (1999)). Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Id. (citing Wortham v. State, 65 Ark. App. 81, 985 S.W.2d 329 (1999)). Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Mace v. State, 328 Ark. 536, 539, 944 S.W.3d 830 (1997). The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001).
Arkansas Code Annotated section 5-64-401 (a) (Supp. 2003) states that it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. Ark. Code Ann. § 5-64-101 (m) (Repl. 1997). Arkansas Code Annotated section 5-64-403(c)(l)(A)(i) (Supp. 2003) states that:
It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of subchapters 1-6 of this chapter.
Arkansas Code Annotated section 5-64-402(a)(3) (Repl. 1997) states that:
It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, or other structure or place or premise, which is resorted to by persons for the purpose of using or obtaining these substances or which is used for keeping them in violation of subchapters 1-6 of this chapter.
In his brief, appellant argues that there was insufficient evidence to support his convictions under either a circumstantial case of constructive possession or a circumstantial case of accomplice liability. In Walley v. State, 353 Ark. 586, 595-96, 112 S.W.3d 349, 354 (2003), our supreme court stated:
We recendy explained how we conduct an appellate review in connection with a sufficiency-of-the-evidence challenge to possession when two or more personsoccupy the residence where the contraband was found.
Under our law, it is clear that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994); Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). We have further explained:
Constructive possession can be implied when the controlled substance is in the joint control of the accused and another. Joint occupancy, though, is not sufficient in itself to establish possession or joint possession. There must be some additional factor linking the accused to the contraband. The State must show additional facts and circumstances indicating the accused’s knowledge and control of the contraband.
Hendrickson v. State, 316 Ark. 182, 189, 871 S.W.2d 362, 365 (1994) (citations omitted). See also Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994); Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991). When seeking to prove constructive possession, the State must establish (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).
Darrough v. State, 330 Ark. 808, 811, 957 S.W.2d 707, 708-09 (1997). Darrough v. State is consistent with a long line of cases holding that “it cannot be inferred that one in non-exclusive possession of premises knew of the presence of drags and had joint control of them unless there were other factors from which the jury can reasonably infer the accused had joint possession and control.” Ravellette v. State, 264 Ark. 344, 346, 571 S.W.2d 433, 434 (1978). In Ravellette, we held that where marijuana was found in a living room and dining room of a rented house jointly shared, there must be some factor in addition to the joint control of the premises to link the accused with the controlled substance. Id.; see also Hicks v. State, 327 Ark. 652, 659, 941 S.W.2d 387, 391 (1997); Pyle v. State 314 Ark. 165, 862 S.W.2d 823 (1993); Bailey v. State 307 Ark. 448, 821 S.W.2d 28 (1991); Embry v. State, 302 Ark. 608, 611, 792 S.W.2d 318, 319 (1990); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Westbrook v. State, 286 Ark. 192, 194 691 S.W.2d 123, 124 (1985); Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982).
In this case, it is undisputed that appellant owned the premises where the paraphernalia and contraband were discovered. The jury was presented with testimony from Chris Harrison of the state crime lab that manufacturing was occurring at appellant’s residence. Several officers testified in detail as to the numerous items commonly found in a methamphetamine lab that were seized from appellant’s home. The items were found throughout various common areas of the residence including the bathroom, the loft area, the living room, the kitchen, the laundry area, and a bedroom. Some of the items included: a pill chopper, a propane bottle, a small glass container with an unknown powder on it, red devil lye, a homemade smoking device, a glass jar with a white powdery residue, a glass tube with residue, two straws with residue, plastic tubing, a funnel, coffee filters, a bottle of hexane, a turkey baster, ajar containing a bi-layer liquid, a plastic bottle with tubing that contained cat litter, pipes for ingesting methamphetamine, a watertight bong, plastic bags with residue, a can of acetone, a can of toluene, and a can of Coleman camp fuel.
Officer Blankenship testified that tubing with stains on it as well as tissue paper with stains on it were found in the laundry-room trash can. Officer Blankenship also testified that when the officers approached the porch, they could smell the intense chemical odor connected to the manufacturing of methamphetamine and that the odor was also present near the rear of the home by the kitchen and laundry room. Further, Officer Blankenship’s testimony showed that in the laundry room there were iodine stains on the boxes, staining on the wails, and rust stains in the area in general. Seven of the items found at appellant’s residence tested positive for methamphetamine. Of the remaining items tested, some of them had chemicals commonly used in the manufacturing process. Moreover, on appellant’s person, officers found a small plastic packet containing a glass bubbled tube with a white residue on it and a small metal pipe that tested positive for methamphet-imine.
The fact that the drugs were found in common areas of the residence has been considered a linking factor to establish constructive possession. See Sweat v. State, 25 Ark. App. 60, 752 S.W.2d 49 (1988). In Sweat, the court found sufficient linking factors to support a finding that appellant was in constructive possession of marijuana found in his mother’s home. Id. Sweat also lived there, was present when the search was conducted, and marijuana was found in common areas of the house, in the refrigerator and on top of the freezer. Id. at 65-66, 752 S.W.2d at 50-51. Drug paraphernalia was also found on the kitchen table. Id. at 65-66, 752 S.W.2d at 51. In the present case, we find that the jury could reasonably conclude that appellant knew of the existence of the drugs and drug- manufacturing paraphernalia found at his residence.
In cases where the theory of accomplice liability is implicated, we affirm a sufficiency-of-the-evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). Arkansas Code Annotated section 5-2-403 (Repl.1997), provides the statutory definition of an accomplice:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.
The relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). A defendant is an accomplice so long as the defendant renders the requisite aid or encouragement. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).
Given the evidence that appellant owned the premises, that drugs and paraphernalia were found in common areas throughout the residence, and that methamphetamine and paraphernalia were found in appellant’s pocket, we conclude that there was sufficient evidence whereby a jury could convict appellant of all three crimes. Accordingly, the trial court properly denied appellant’s motion for a directed verdict.
Reverse Rule 404(b)
Finally, appellant argues that the trial court erred in refusing to admit a certified copy of the co-defendant’s judgment and disposition order, showing he pled guilty to manufacturing methamphetamine under a reverse Rule 404(b) argument, as such was an exculpatory explanation for the paraphernalia found on the premises. It is often recognized that evidence such as other parties’ threats to kill or offer of payment to someone else to commit murder are relevant to prove motive on the part of someone other than the defendant. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994) (citing Smith v. State, 33 Ark. App. 37, 41, 801 S.W.2d 655, 658 (1990)). Such evidence is sometimes called “reverse 404(b),” as it is evidence of other crimes, wrongs, or acts by a party other than the defendant which may not be admitted to show that the party acted in conformity with a known character trait, but which may be admitted for other purposes, such as to show motive, opportunity, intent, or identification of that other party, thus tending to negate the guilt of the defendant. Id. (citing United States v. Stevens, 935 F.2d 1380, 401-02 (3d Cir. 1991)).
In the present case, appellant attempted to admit a certified copy of Chris Southhall’s judgment and disposition order. Appel lant was attempting to provide an exculpatory explanation for the presence and discovery of the various items found at the scene. He asserted that the introduction of Southhall’s judgment and conviction order would have demonstrated motive, opportunity, and intent.
Evidence offered under Rule 404(b) of the Arkansas Rules of Evidence must be independently relevant, thus, having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001) (citing McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999)). Even if the evidence is relevant, it may be excluded if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Ark. R. Evid. 403. The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, which this court will not disturb on appeal absent a showing ofmanifest abuse. Warren v. State, 59 Ark. App. 155, 954 S.W.2d 298 (1997). The standard of review is similar for both relevancy determinations and the decision to admit evidence by balancing the probative value against unfair prejudice or confusion of the issues. See Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
We find that the trial court did not err in refusing to admit the judgment and disposition order. Contrary to appellant’s assertion, the order itself does not provide any information as to motive, opportunity, or intent. Accordingly, we find no abuse of discretion on the part of the trial judge in refusing to admit Southall’s judgment and disposition order.
Based on the foregoing, we affirm appellant’s convictions.
Griffen and Crabtree, JJ., agree.
Appellant does not challenge the sufficiency of the evidence as to his conviction of possession of drug paraphernalia. | [
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Andree Layton Roaf, Judge.
Tyrone Turner appeals the revocation of bis probation and sentence of ten years’ imprisonment. On appeal, Turner argues that (1) the trial court lacked jurisdiction to revoke because of a prior modification of his sentence, and (2) the ten-year sentence recited in the judgment and commitment order is erroneous because the trial court pronounced sentence of only one year and because it is an illegal sentence for the count of first-degree terroristic threatening. We affirm the revocation as modified to correct the illegal sentence.
On May 10, 1999, Turner pled guilty to first-degree terror-istic threatening, a class D felony, third degree domestic battery, a class A misdemeanor, and felon in possession of a firearm, a class B felony. The offenses were committed on December 3, 1998. Pursuant to the plea agreement, Turner was not charged with any prior convictions. He received a five-year sentence of probation, and was ordered to complete eighty hours of community service and attend domestic abuse classes. Turner was also ordered to pay court costs and $2,000 in fines.
On November 19, 2001, the State filed the first of a series of revocation petitions. A hearing was held on March 4, 2002, in which the State’s petition was dismissed, and the trial court ordered that Turner’s probation continue. However, the trial court ordered Turner committed to the Pulaski County jail on fines and court costs stemming from the 1999 convictions. On March 4, 2002, the Pulaski County circuit clerk sent a “speed letter” to the Pulaski County jail, advising the jailers that the revocation petition had been dismissed, and that the trial court had ordered Turner “committed on fines and court costs.”
The State filed a second petition of revocation on June 28, 2002, and a hearing was held on October 21, 2002. Initially the trial court commented, “On a plea of guilty, it’ll be the judgment and sentence of the court that you pay a fine of $200 plus costs and be returned to probation.” The State cautioned that if the trial court wanted to continue Turner on probation it would not be able to modify the sentence at a later date if an additional fine was assessed. The State requested that the petition be dismissed so that the probated sentence would be subject to modification at a later date. The trial court dismissed the petition and returned Turner to his sentence of probation.
A third revocation petition was filed on January 8, 2003. The State presented evidence that Turner had failed to meet with his probation officer, failed to pay his supervision fees, and failed to perform his community service. The trial court found Turner guilty and sentenced him as follows: “All right, I find you guilty as charged. Count one, that will be ten years in the Arkansas Department of Correction. Count two, one year concurrent. Count three, one year concurrent.”
Turner first argues that the trial court lacked jurisdiction to revoke his probation pursuant to the petition filed in 2003 because the court had previously modified his probated sentence and fine in 2002. Prior to Act 1569 of 1999, a trial court lost subject matter jurisdiction to modify or amend an original sentence once it was put into execution. Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003). A sentence is put into execution when the trial court issues a judgment of conviction or a commitment order. Id. A guilty plea, coupled with a fine and probation or a suspended imposition of a sentence, constitutes a conviction. Id. This conviction deprives the trial court of jurisdiction to amend or modify the executed sentence. Id. See also Ark. Code Ann. § 5-4-301 (Repl. 1997). Once a sentence is put into execution, an attempted modification of the original order is erroneous. Gates, supra (holding that the trial court lacked subject matter jurisdiction to modify the sentence originally imposed by imposing an additional term of fifteen years’ suspended sentence).
In Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), the appellant entered a guilty plea, and the trial court sentenced her to a suspended imposition of sentence of one year. The appellant was also ordered to pay a fine of $500 and court costs of $107.75 at the rate of $50 per month. Subsequently, the State filed a petition to revoke the appellant’s suspended imposition of sentence. The trial court held that the appellant’s suspended sentence would remain in effect, but modified the sentence by adding another $500 fine and two weeks’ incarceration in the Crawford County Detention Center. On appeal, the supreme court held that the trial court lacked jurisdiction to modify the appellant’s sentence once it was put into execution.
Turner’s convictions arose from offenses committed in 1998, prior to the effective date of Act 1569 of 1999. Consequently, the supreme court’s holding in Gates, supra, is controlling, and while the trial court had jurisdiction to revoke Turner’s probation, it lacked jurisdiction to modify the original sentence with respect to any of the State’s petitions to revoke. Thus, the issue that this court must resolve is whether the trial court’s 2002 “commitment on fines and court costs” ordered at the time the 2001 revocation petition was dismissed constitutes a modification of Turner’s original sentence.
In this regard, the State argues that the trial court’s commitment of Turner at the March 2002 hearing was not a modification because the trial court could have been acting pursuant to Ark. Code Ann. § 5-4-203 (Repl. 1997). The State contends that the trial court did not enter a judgment and commitment order following the March 2002 hearing and that the trial court was merely imposing a “jail-for-dollar, failure-to-pay-fine commitment of [Turner] for his failure to pay his fine and court costs.” The State concedes that Turner’s failure to pay his fine could have been a basis on which to revoke his probation, but contends that, because the March 2002 proceeding resulted in neither a revocation nor an additional fine, the trial court retained jurisdiction to revoke Turner’s probation pursuant to the State’s 2003 petition.
Arkansas Code Annotated section 5-4-203 (Repl. 1997) provides in pertinent part:
(a)(1) When a defendant sentenced to pay a fine or costs defaults in the payment thereof or of any installment, the court, upon its own motion or that of the prosecuting attorney, may require him to show cause why he should not be imprisoned for nonpayment.
* * *
(3) (A) Unless the defendant shows that his or her default was not attributable to a purposeful refusal to obey the sentence of the court or to a failure on his or her part to make a good faith effort to obtain the funds required for payment, the court may order the defendant imprisoned in the county jail or other authorized institution designated by the court until the fine or costs or specified part thereof is paid.
(B) The period of imprisonment shall not exceed whichever is the shorter period:
(i) One (1) day for each forty dollars ($40.00) of the fine or costs;
(ii) Thirty (30) days if the fine or costs were imposed upon conviction of a misdemeanor; or
(iii) One (1) year if the fine or costs were imposed upon conviction of a felony.
(Emphasis added.)
We agree that Turner’s sentence had been placed into execution when the judgment and commitment order was entered in 1999. However, we conclude that the trial court neither revoked Turner’s probation nor modified his sentence by the “commitment on fines order” in the March 2002 proceeding. The proceeding was not brought pursuant to a show-cause order, and there is no evidence that the commitment was not in lieu of payment for fines assessed in connection with Turner’s 1999 guilty plea, or that he did not receive credit on his fine for the days of commitment. Nor does Turner argue that he was assessed an additional fine. This case is thus readily distinguished from Harmon, supra, in which the trial court clearly modified the appellant’s sentence by both adding an additional fine and imposing two weeks incarceration. Moreover, the record reflects that both of the first two petitions for revocation were dismissed prior to the third revocation proceeding in which Turner’s probation was revoked.
Turner also argues that the judgment and commitment order reflects an illegal sentence on the terroristic threatening conviction. It is well settled that a challenge to an illegal sentence may be raised for the first time on appeal. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). Further, the issue of an illegal sentence is an issue of subject matter jurisdiction, which this court can raise sua sponte. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
A sentence is void or illegal when the trial court lacks the authority to impose it. Sentencing in Arkansas is entirely a matter of statute . . . We have consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of a crime. Where the law does not authorize the particular sentence pronounced by the trial court, that sentence is unauthorized and illegal, and the case must be reversed and remanded.
State v. Fountain, 350 Ark. 437, 440, 88 S.W.3d 411, 413 (2002) (citations omitted).
In order to construe judgments, we look for the trial court’s intention, which is derived from the judgment and the record. Timmons v. State, 81 Ark. App. 219, 100 S.W.3d 52 (2003). Inconsistencies between the judgments entered and the record of the proceeding are resolved in favor of the trial record. Id. When there is a conflict between the trial court’s oral pronouncement and the recitation on the face of the judgment, the oral pronouncement governs. Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988).
Sentencing is entirely a matter for the Legislature. State v. Pinell, 353 Ark. 129, 114 S.W.3d 175 (2003). Our courts are strictly bound by the terms and sentences enacted by the General Assembly. Id. A trial court has jurisdiction to correct an illegal sentence even if it has been placed into execution. Harness, supra. However, if this court finds that a trial court’s sentence was illegal and that the court’s error is not related to guilt, but only relates to the illegal sentence, this court can correct the sentence in lieu of remanding. Id.
In this case, the judgment and commitment order ofjune 30, 2003, provides for a ten-year sentence of imprisonment for the felon in possession of a firearm conviction, a class B felony. It also reflects a ten-year sentence of imprisonment for the first-degree terroristic threatening conviction, a Class D felony. Arkansas Code Annotated section 5-4-401 outlines sentencing ranges, and provides that the authorized sentence range for a class B felony is five to twenty years. Ark. Code Ann. § 5-4-401 (Repl. 1997). The authorized sentence range for a class D felony is up to six years. Id.
The trial court was not authorized to impose a ten year sentence for the first-degree terroristic-threatening conviction, which is a class D felony and punishable by a maximum sentence of six years’ imprisonment, and Turner thus received an illegal sentence. Moreover, a review of the trial record shows that the trial court pronounced a one-year sentence for the first-degree terroristic threatening conviction. At the conclusion of the revocation hearing the trial court stated that as to count two, Turner was sentenced to “one year concurrent.” The oral pronouncement of the trial court governs. Because the error in the judgment and commitment order constitutes an illegal sentence, we correct the error to reflect a sentence of one year for the terroristic-threatening conviction, to be served concurrently with the ten-year sentence imposed for the felon-in-possession conviction.
Affirmed as modified.
Bird and Crabtree, JJ., agree.
See Ark. Code Ann. § 5-73-103 (Repl. 1997).
See Ark. Code Ann. § 5-13-301 (Repl. 1997).
Turner’s conviction was not subject to the sentence enhancement provision of Ark. Code Ann. § 5-4-401 because his plea agreement indicates that he is not being charged with having any prior convictions.
Apparently, the trial court was referring to the State’s information. Count one is listed as felon in possession. Count two is listed as terroristic threatening, and count three is listed as domestic battery. Count four charges that Turner is a habitual offender, but the plea agreement specifically stated that Turner was not being charged as a habitual offender. | [
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Andree Layton Roaf, Judge.
Appellant Breezy Mayfield appeals from an order terminating her parental rights to her minor son. On appeal, she argues that the trial court erred in finding by clear and convincing evidence that DHS proved the grounds set forth in the petition for termination. We affirm.
Breezy Mayfield is the mother ofB.M., born on January 23, 2002. On October 3, 2002, DHS filed a petition for emergency custody ofB.M., based on the presence of unexplained injuries on the child, including a black eye, broken ribs, cigarette burns on the child’s back, and bruises on the infant’s head. The order granting DHS custody was filed on October 15, 2002. Breezy waived probable cause at a hearing on October 26, 2002, and B.M. was continued in DHS’s custody. An adjudication hearing was held on December 17, 2002, however, Breezy did not appear because she had moved to California on the previous day. Breezy is originally from California, had come to Arkansas with her sixteen-year-old boyfriend, and had lived with various relatives while in Arkansas, including a grandmother and aunt. On the morning of the adjudication hearing, Breezy telephoned the DHS worker assigned to the case, explaining that she had permanently moved back to California with her mother because she needed a place to live. Until Breezy moved back to California, she had been exercising regular visitation with B.M. since his removal from her custody. During the adjudication hearing, DHS stated that other than visitation, Breezy had failed to comply with the case plan’s requirements that she seek counseling, submit to random drug screens, maintain stable housing, and obtain employment. The trial court found that B.M. was dependent-neglected and continued custody in DHS.
Breezy was present at a March 11, 2003 review hearing. Her attorney had filed a motion to transfer the case to California, citing that Breezy lived in California with her mother; that while in Arkansas, Breezy did not have family or economic support; and that she had no intention of returning to Arkansas, but that she wanted to continue working with California’s equivalent of DHS in order to be reunified with her child. Breezy’s attorney argued that Breezy was not receiving reunification services in California, and requested that foster care be transferred to California so that proper visitation and reunification services could be provided to Breezy in California. Both DHS and the guardian ad litem opposed Breezy’s motion to transfer.
At the hearing Breezy testified that she moved to California to seek a stable home environment. She stated that she was receiving emotional and financial support from her mother, brother, and sister in California. She testified that she had contacted the equivalent of DHS in California, and that she was advised to have DHS complete an Interstate Compact for the Placement of Children form. She stated that she was advised that there was no way California could complete a home study until that form was completed. Breezy testified that she had been attending parenting classes on her own; that she began counseling; that she was looking for a job; and that she was willing to do whatever necessary to get her child back. Breezy admitted that she did not notify DHS of her intent to move to California, and that she, her mother, brother, and sister all live in the same apartment.
The representative from DHS admitted that it had not completed the “100-A” form, and admitted, “Right now we just have not made an agreement as to what needs to be done. Our ICPC says that we do not have to do the 100-A, and that they’re [California] just supposed to provide the services. California says that they won’t do it unless we do the 100-A. It’s a form that has to be filed.” DHS stated that it would not complete the form and that there were no services that it could provide to Breezy in California.
The trial court opined that it was not opposed to transferring the case to California, took Breezy’s motion to transfer under advisement, and directed the ICPC officials to appear at the April 7 review hearing to explain what steps need to be taken in order to get the case transferred to California.
ICPC officials did not appear at the April 7 hearing, and instead DHS relied on Arkansas Department Human Services. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002), for its position that ICPC did not apply in Breezy’s case. The trial court declined to send B.M. to California, but agreed to participate in a conference call with the appropriate California judge in order to get the matter resolved.
At the August 12, 2003 review hearing, Breezy submitted letters from various people in California, indicating that she had sought counseling treatment, completed parenting classes, and was actively seeking employment. Breezy also testified that she had a job “lined up.” Reunification was continued as the goal of the case.
On September 9, 2003, a permanency planning hearing was held. DHS recommended termination of Breezy’s parental rights, and the trial court authorized DHS to file a petition to terminate. The court found that, based on the history of the case and the fact that services have been available to Breezy, but she had failed to return to Arkansas to take advantage of those services, the goal should be changed from reunification to termination.
At that hearing, Pelica Cobb testified that DHS was in favor of terminating Breezy’s parental rights; that following termination adoption would be the goal; and that she had not been able to provide services directly to Breezy because of her relocation to California. Cobb stated that a ICPC Regulation home study was done in California at Breezy’s mother’s home, but that the home was not appropriate for B.M. because of the living conditions. Breezy lives in the home, the apartment is a two bedroom apartment and four people reside there, with Breezy sleeping on the sofa and her mother sleeping in the kitchen, and the carpet was filthy. Cobb also stated that Breezy’s mother was taking antidepressant medication and was not open to supervised visitation. Cobb admitted that, although California was not offering her services, Breezy was “doing some things on her own” such as attending parenting classes and counseling sessions. She admitted to speaking with someone from Yuba County Counseling who indicated that Breezy was “making progress in her counseling sessions.” She also admitted that Breezy was currently working.
Breezy also testified that she moved to California to better herself, and that she attempted to seek mental health treatment, but was turned down because she did not have a diagnosis. She stated that she had completed parenting classes, and voluntarily took anger-management classes. She also took co-dependency classes. She testified that she did not move back to Arkansas because she was afraid of failing and did not have any family support or financial support here. At the conclusion of Breezy’s testimony, the trial court denied the motion to transfer, and changed the goal to termination.
DHS filed its petition to terminate on September 17, 2003, asserting that it was not in B.M.’s best interest to be returned to Breezy’s care and custody, and that he had been out of the home for more than one year, and despite meaningful efforts by DHS to rehabilitate the home and correct the conditions that caused removal, the conditions had not been remedied. The petition also alleged that Breezy had failed to provide meaningful support. The termination hearing was held on October 14, 2003, and DHS essentially testified to the facts mentioned above. DHS also stated that Breezy had not provided any meaningful support, but admitted that Breezy was not asked to provide child support and did not have the means. DHS admitted that California would not provide services to Breezy because she did not have her child, but stated that it filed a “100-B” form, which California denied.
The trial court granted the petition and found that it was in the child’s best interest that Breezy’s parental rights be terminated, and that Breezy had provided no meaningful support and had had no meaningful contact with B.M. during the pendency of the case.
This court reviews termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination of parental rights must be proven by clear and convincing evidence. M. T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). When the burden of proving a disputed fact is by “clear and convincing evidence,” the question on appeal is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.
The goal of Arkansas Code Annotated section 9-27-341 (Supp. 2003) is to provide permanency in a minor child’s life in circumstances in which returning the child to the family home is contrary to the minor’s health, safety, or welfare and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the minor child’s perspective. Ark. Code Ann. § 9-27-341 (a)(3). Parental rights may be terminated if clear and convincing evidence shows that it is in the child’s best interest. Ark. Code Ann. § 9-27-341 (b)(3). Addi tionally, one or more grounds must be shown by clear and convincing evidence. The two grounds alleged in this case are: (1) that the child has been out of the home for more than twelve months and the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the child; and (2) that the child has been out of the home for more than twelve months and despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied. Ark. Code Ann. §§ 9-27-341 (b)(3)(i)(a), 9-27-341 (b) (3) (B)(ii) (a) (Repl. 2002).
Breezy argues that the trial court’s order is erroneous because DHS failed to prove by clear and convincing evidence that she willfully failed to provide significant material support and that she willfully failed to maintain meaningful contact with B.M.
In Dinkins v. Arkansas Department Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001), the supreme court held that the trial court erred in finding that the appellant had failed to provide significant material support to her children. The supreme court found that DHS never requested contributions for support from the appellant, and the trial court never ordered the appellant to pay child support. The court held that it was error for the trial court to conclude that the appellant’s failure to support constituted an additional ground on which to base the termination of her parental rights. The supreme court, however, ultimately concluded that the error was harmless based on additional grounds supporting termination.
Similarly in Minton v. Arkansas Department Human Services, 72 Ark. App. 290, 34 S.W.3d 776 (2000), the court of appeals held that it could not find appreciable evidence that the appellant willfully refused to pay support. The court found that there was no evidence that the appellant willfully refused to pay support. The court found that the evidence did not demonstrate that the appellant had the ability to pay even a nominal amount of support even after she stopped using drugs and obtained regular employment.
Breezy was never ordered to pay child support, and DHS concedes that it never requested support from Breezy. Cobb admitted that Breezy was barely able to feed herself, and as a result DHS never asked her to provide food or clothing for B.M. The trial court’s finding that Breezy willfully failed to provide mean ingful support is clearly erroneous where she was not ordered to pay child support and had no means to provide support, and where DHS did not request that she provide B.M. with food and clothing. Dinkins, supra.
However, with regard to the allegation that Breezy failed to maintain reasonable contact with B.M., it is undisputed that Breezy absented herself by moving to California immediately prior to her adjudication hearing. In short, although she appeared at several review hearings and visited with B.M. at those times, B.M. was removed from Breezy’s custody at the age of nine months, and Breezy did not maintain meaningful contact with the child from the time she left the state on December 16, 2002, until her rights were terminated on November 18, 2003.
Arkansas Code Annotated section 9-27-341(b) (3) (B)(ii)(b) provides that to find willful failure to maintain meaningful contact, it must be shown that the parent was not prevented from visiting with the child, taking into account the distance of the child’s placement from the parent’s home. Here, Breezy voluntarily left and made her home in California, and B.M. was in foster care in Rison, Arkansas. Although Breezy was offered services by Arkansas DHS during the pendency of this case, she refused to return to the state or avail herself of the services. Moreover, while in California, she failed to maintain steady employment, never established her own residence, and moved in and out of her mother’s apartment, which in any event was found to be unsuitable in a California home study. We cannot say that the trial court’s finding that Breezy failed to maintain meaningful contact with the child is erroneous given the history and circumstances of this case.
Breezy also argues that the trial court erred in finding that DHS made reasonable efforts to provide reunification services to her. As a sub-argument, Breezy argues that DHS failed to make reasonable efforts toward assisting her with obtaining services in California; that DHS opposed her motion to transfer the case to California, and as a result, failed to make reasonable efforts toward complying with the Interstate Compact for the Placement of Children; that there was a misapplication of the holding in Huff, supra and essentially that the trial court erred in denying her motion to transfer. DHS argues that Breezy’s appeal from the denial of her motion to transfer is untimely, and, alternatively, argues that DHS made reasonable efforts toward reunification, but that Breezy failed to return to Arkansas to take advantage of those services.
Because we affirm the trial court’s finding that Breezy willfully failed to maintain contact with the child, we need not address this argument. However, while DHS did not move expeditiously to seek transfer of the case after the February 2003 motion to transfer was filed, the record reflects that DHS ultimately submitted the ICPC form 100-A to California in August 2003, that the ICPC-requested home evaluation was conducted on or about September 4, 2003, at Breezy’s mother’s home in Yuba County, California; that the home evaluation resulted in the county recommending against an ICPC placement in the grandmother’s home because of unsuitability; and that this information was conveyed to DHS prior to the permanency planning hearing. Placement was denied and the Interstate Compact Case formally closed on September 30, 2003. Testimony concerning the failed transfer attempts was presented by DHS at both the permanency planning hearing on September 9, when the trial court finally denied the motion to transfer, and at the termination hearing on October 14. Accordingly, the trial court’s findings that Breezy’s motion to transfer should be denied and that DHS made reasonable efforts to provide reunification services to her, which she declined to accept, were not in error.
Affirmed.
Robbins and Bird, JJ., agree. | [
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John F. Stroud, Chief Judge.
Appellant, Earl Loy, was convicted in a bench trial of possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced to ninety months in the Arkansas Department of Correction, with sixty months suspended, and he was assessed $160 for court costs. On appeal, he argues that the trial court erred (1) when it denied his motion to suppress evidence in what he characterized as an illegal search and (2) in finding that there was sufficient evidence to support his conviction. We affirm appellant’s conviction.
On the evening of October 29, 2001, Officers Samuel Spenser and Mark Willis of the Hot Springs Police Department went to 109 Boaz in Hot Springs to attempt to serve two misdemeanor arrest warrants on appellant. A U.S. Park Ranger had advised the officers that he had followed appellant to that address. Officer Spenser testified that he approached the residence, a mobile home, and knocked on the door inside the carport area. When he knocked on the door, a male voice just inside the door asked, “Who is it?” When Spenser identified himself as the police, the voice inside told him “just a minute,” and Spenser heard footsteps inside running toward the back of the trailer. Spenser advised Willis that he thought appellant was going to abscond, and Willis went to the back of the trailer.
Spenser knocked again, and when he was told “just a minute” a second time, he told the person inside that if he did not come out, he would bring the police dog out. At that time, appellant, whom Spenser recognized from a photo, opened the door, looked around, told the officer “just a minute” again, and closed the door. Spenser heard more footsteps inside, knocked again, and appellant answered the door again.
Spenser said that when appellant opened the door, a smell hit him immediately, his eyes and nose began to burn, and his lips and tongue began to go numb. He saw a large trash bag on the floor right inside the door with a lot of matches pouring out of it and some gloves lying on the floor, and he said that the air-conditioner was blowing full blast even though it was cold outside and the windows were open. Spenser testified that he turned to Willis and said, “meth,” to which appellant replied, “You got a search warrant? You need a search warrant for that.”
Spenser asked appellant who he was, and appellant told them that his name was Steve; however, both officers recognized appellant as the person for whom they had the arrest warrants, and they took him into custody. Spenser said that when they removed appellant, he also saw a syringe lying on the coffee table. The officers saw a female sitting at a table by the door who was identified as Nancy Lyon, and she told them that there was a female in the back. Willis did a sweep of the residence at that time.
On cross-examination, Spenser said that there was a door frame to the carport, but that he went inside that area and knocked on the trailer door. He said that the door on the outside of the carport was not a secure door.
Officer Willis’s testimony corroborated that of Officer Spenser regarding how the officers approached the door and what appellant did as they were attempting to get him to open the door. After taking appellant into custody, Willis said that he noticed the female sitting at the kitchen table to the right of the door, and he saw the large bag of matches with the striker plates missing, a syringe on the coffee table, a large bag, and gloves in front of the bag. Due to the female’s response that she thought someone else was in the residence, Willis walked through the trailer and found a man, Dana Ecker, in the bathroom, and another man, Michael Howell, asleep in the bedroom, and he took those individuals outside, along with Nancy Lyon. Willis denied that he opened any cabinets or drawers.
Richard Norris, an investigator on the drug task force, testified that he arrived at the residence after Spenser and Willis had taken several people out of the residence. He noticed strong odors when he arrived that were a culmination of the odors he associated with meth labs. He also saw sitting on the front porch a large glass jar containing a red liquid and a dark sediment and a bucket that had a cloth filter on top containing gray crystals that appeared to him to be iodine crystals. He also saw the books of matches inside the front door.
Norris entered the residence to make sure that there were no items that could cause an explosion and to ventilate the residence by opening more windows. Norris also turned off the air conditioning; made sure that there were no open chemicals; and made sure that there were no open flames, open fires, or open heaters burning. When he walked to the back bedroom, he saw what appeared to be a hydrogen gas generator protruding from under the bed that was still putting off an acid vapor. He also found a female hiding under the bed, later identified as Paula George. After removing George, the residence was secured, and Norris applied for a nighttime search warrant, which was granted. The basis for it being a nighttime search warrant was, “The Affiant [Norris] states that the residence cannot be properly secured so as to not pose a danger to the community or anyone who might enter. The Affiant believes that exigent circumstances exist to warrant conducting the search during nighttime hours.” The warrant was executed, and numerous items related to the manufacture of methamphetamine were found inside and outside the residence, as well as in the garbage of the residence.
Dana Ecker, the man found in the bathroom of the residence, testified that he knew appellant lived at the residence, but he did not know if appellant’s landlord, Terry Floyd, was still living there at the time of appellant’s arrest. He said that when he went to the residence that night, he did not knock on the carport door, but instead knocked on the trailer door. He said that he was there when Michael and Paula came in, but that he did not notice anything in their hands. He said that he was drinking that night, but that he did not smell anything unusual in the trailer, and he did not see anyone doing anything that he thought was illegal.
Jacqueline Reynolds testified that the residence had been her mother’s, but that after she died, her brother, Terry Floyd, lived there. However, she said that Floyd had moved out in the summer of-2001, and that appellant was allowed to live there because he was working on some cars. She described the carport as a breezeway and said that it had not been screened in for over a year. She said that when she approached the trailer, she would go to the metal door on the trailer, not the one outside, because you could not knock on that one.
Carla Veazey testified that appellant lived at her deceased grandmother’s house and that she had been there several days prior to appellant’s arrest and found him cooking meth. She said that appellant promised to quit if she did not call the police, and she agreed.
The State rested, and appellant rested without calling any witnesses. Appellant made his arguments for his motion to suppress and his motion for directed verdict. The trial court took the issues under advisement and later issued a letter ruling denying appellant’s motion to suppress and finding him guilty. Appellant now brings this appeal.
Appellant contends that the trial judge erred in denying his motion for directed verdict. A directed-verdict motion is a challenge to the sufficiency of the evidence. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). Although appellant’s argument regarding the sufficiency of the evidence to support his conviction is his second point of appeal, preservation of his right against double jeopardy requires that the appellate court consider the challenge to the sufficiency of the evidence before alleged trial error is considered, even though the issue was not presented as the first issue on appeal. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Id.
Appellant contends that there was no evidence presented at trial that connected him with the drug paraphernalia found in the residence, and therefore the State failed to prove that he exercised care, control, and management over the contraband or that he knew that it was in fact contraband. He argues that there was no testimony that he purchased any of the items seized, that he was seen holding or using any of the items seized, that his hands were stained, or that he appeared to be under the influence of methamphetamine. He further points to the fact that Investigator Norris, when asked what evidence connected appellant to the items in the home other than the fact that he lived there, replied that there was nothing.
In order to prove possession, it is not necessary to prove literal physical possession of contraband. See Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Contraband is deemed to be constructively possessed if the location of the contraband was under the dominion and control of the accused. See Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Although constructive possession may be implied when contraband is in the joint control of the accused and another person, joint occupancy, standing alone, is not sufficient to establish possession or joint possession. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). The State is also required to establish that (1) the accused exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband. Id.
In the present case, appellant was unquestionably living in the residence at 109 Boaz. Although the landlord, Terry Floyd, had also lived in the trailer with appellant, the evidence indicated that Floyd had not been living at the residence for several weeks before appellant was arrested. When the officers arrived at the residence on the night of October 29, appellant was the person who repeatedly answered the door. When appellant finally opened the door, Officer Spenser smelled a strong chemical odor, his eyes and nose began to burn, and his lips and tongue started to go numb. Items associated with the manufacture of methamphetamine were found throughout the residence, outside the residence, and in the garbage outside the residence, and there were various stages of manufacturing occurring in different rooms of the residence. Furthermore, appellant acted in a suspicious manner when answering the officer’s knock, opening and closing the door several times and looking around furtively. We hold that all of this evidence supports the finding by the trial court that appellant possessed drug paraphernalia with the intent to manufacture methamphetamine, and we affirm on this point.
Appellant also contends that the trial court erred in denying his motion to suppress the evidence found in the house where he was residing. In his brief, appellant first argues that he had standing to contest the search. We hold that this is a moot point because the trial court determined that appellant had standing to contest the search. Additionally, appellant also argues (1) that Officers Spenser and Willis did not have probable cause to enter his home absent a valid search warrant; (2) that no exigent circumstances existed that would permit Officers Spenser or Willis or Investigator Norris to enter the house without a warrant; and (3) that the nighttime search did not comply with Rule 13.2 of the Arkansas Rules of Criminal Procedure.
In reviewing the denial of a motion to suppress, the appellate court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
Appellant first argues that Officers Spenser and Willis improperly crossed the threshold of what the officers described as a carport to serve the valid arrest warrants because that was part of his residence and he had an expectation of privacy in that area. Appellant attempts to make much of the facts that there was an outside door, that there were posts at the corners, and that there was plywood on one end of that area. However, the testimony at trial was that the door could not be locked, that there was no longer screening around the area, and that you could walk between the wooden posts. Furthermore, both Dana Ecker and Jacqueline Reynolds testified that the trailer door, not the door on the outside of what the officers described as the carport, was the door that was approached and knocked upon when desiring entry into the trailer.
However, as the State points out, our supreme court, in Benevidez v. State, 352 Ark. 374, 379, 101 S.W.3d 242, 246 (2003) (citing Payton v. New York, 445 U.S. 573, 603 (1980)), held, “For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Although our supreme court has not explicitly held that a misdemeanor arrest warrant is sufficient for an officer’s entrance into a home, the Eighth Circuit Court of Appeals, in United States v. Clayton, 210 F.3d 841, 843 (8th Cir. 2000), has held that this principle is applicable to both felony and misdemeanor arrest warrants. Furthermore, Benevidez explicitly allows officers to enter a dwelling if they have a valid arrest warrant and reason to believe that the suspect lives in the dwelling and is within it. Appellant makes no argument that the arrest warrants were not valid, and the officers testified that they had received information that appellant was inside the residence from a U.S. Park Ranger who had followed appellant to the residence. We hold that the officers’ approach to the front door of the trailer was proper.
Appellant also contends that Officers Spenser and Willis, and later Investigator Norris, had no probable cause to enter the residence without a search warrant, and that no exigent circumstances existed that would have allowed them to enter the residence without a warrant. Rule 14.3 of the Arkansas Rules of Criminal Procedure provides:
An officer who has reasonable cause to believe that premises or a vehicle contain:
(a) individuals in imminent danger of death or serious bodily harm; or
(b) things imminently likely to bum, explode, or otherwise cause death, serious bodily harm, or substantial destruction of property; or
(c) things subject to seizure which will cause or be used to cause death or serious bodily harm if their seizure is delayed;
may, without a search warrant, enter and search such premises and vehicles, and the persons therein, to the extent reasonably necessary for the prevention of such death, bodily harm, or destruction.
Under this emergency exception, a warrantless entry into a residence may be upheld if the State proves that the officer had reasonable cause to believe that someone inside was in imminent danger of death or serious bodily harm. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).
We hold that the initial entry of Officers Spenser and Willis was justified under subsection (a) of Rule 14.3 of the Arkansas Rules of Criminal Procedure. Based upon what the officers saw and smelled when appellant opened the door, they believed that methamphetamine was being manufactured, which, based upon their knowledge of meth labs, would pose a threat of immediate serious bodily harm to anyone in the residence. The officers also had reason to believe that there were other persons in the residence based upon the footsteps that they heard when they first arrived and the fact that there was a female sitting at the table who said that she thought there was a female in the back of the house. We hold that this was proper in light of the circumstances.
With regard to Investigator Norris, under subsection (b) of Arkansas Rule of Criminal Procedure 14.3, entry into a residence is allowed where there is reasonable cause to believe that there are things imminently likely to burn, explode, or otherwise cause death, serious bodily harm, or substantial destruction of property. As the State points out, Norris was a member of the drug task force and was an expert in the field of clandestine meth labs, and he entered the residence to further secure the scene and ensure that there was no flame burning that could cause an explosion. In United States v. Walsh, 299 F.3d 729 (8th Cir. 2002), a second search by someone who had special training in meth labs was upheld when that search was for heat sources that could ignite. The Eighth Circuit held, “The potential hazards of methamphetamine manufacture are well documented, and numerous cases have upheld limited warrantless searches by police officers who had probable cause to believe they had uncovered an on-going methamphetamine manufacturing operation.” Id. at 734. We hold that Walsh is instructive in the present case. Here, there was not only an odor, but the officers had seen evidence of meth production, and Investigator Norris was better-equipped as a member of the drug task force to insure that all possible sources of danger associated with the meth lab were contained. We find no error on this point.
Appellant’s last point is that the nighttime search warrant did not comply with Rule 13.2 of the Arkansas Rules of Criminal Procedure. We must first note that based upon the trial judge’s ruling contained in the abstract, which is the record on appeal, it did not appear that the trial judge ruled on the specific issue of the nighttime search. In Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004), the supreme court held that when multiple issues were raised in a motion to suppress, the appellate court would not reach the merits of any argument not ruled upon by the trial court. However, upon reviewing the record, which this court can do to affirm, see Turner v. State, 59 Ark. App. 249, 956 S.W.2d 870 (1997), we discovered that after the trial judge issued his initial letter ruling, the public defender wrote back inquiring specifically about the nighttime search, and the trial judge then ruled upon that issue in an additional letter ruling denying appellant’s motion to suppress on that basis as well.
A factual basis for a nighttime search is required. Stivers v. State, 76 Ark. App. 117, 61 S.W.3d 204 (2001). A nighttime search warrant may only be granted under specific circumstances: the place to be searched is difficult of speedy access; the objects to be seized are in imminent danger of removal; the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. Ark. R. Crim. P. 13.2(c). We hold that none of these exceptions are present here. The trailer was not difficult to access; with appellant arrested and the house secured, there was no imminent danger of removal; and there were no circumstances requiring the warrant to be executed at night.
However, in Crain v. State, 78 Ark. App. 153, 79 S.W.3d 406 (2002), this court held that although there was no justification for a nighttime search, the search was permissible under the good-faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897 (1984). Although this exception is not absolute, in that case it was applied because there was no evidence that the sheriff made material false statements or misrepresentations in his affidavit; there was no evidence that the judge issuing the warrant abandoned his neutral role; and the affidavit contained more than conclusory and boilerplate language. In determining whether the good-faith exception is applicable, this court must decide whether it “was objectively reasonable for a ‘well-trained police officer’ to conclude that the nighttime search was supported by probable cause.” Crain, 78 Ark. App. at 157, 79 S.W.3d at 410. In Crain, this court, quoting United States v. Martin, 833 F.2d 752 (8th Cir. 1987), held:
Although a police officer may not rely entirely on the magistrate’s finding of probable cause, in cases where, as here, the courts cannot agree on whether the affidavit is sufficient, it would be unfair to characterize the conduct of the executing officers as bad faith, particularly where there has been no material false statements or misrepresentations in the affidavit and where the officer is acting in good faith. When judges can look at the same affidavit and come to differing conclusions, a police officer’s reliance on that affidavit must, therefore, be reasonable.
Crain, 78 Ark. App. at 158, 79 S.W.3d at 410.
In accordance with Crain, we must look to the totality of the circumstances, including what the affiant, Investigator Norris, knew but did not include in his affidavit. The affidavit included the following information in support of Norris’s request for a nighttime search: there was a strong chemical odor emanating from the residence; there was a syringe lying on the coffee table; there was a bag of book matches with the striker plates removed just inside the front door; there was a glass jar on the front porch containing a red liquid with a gray sediment; there was a bucket on the front porch with a filter on top that contained suspected iodine crystals; and Norris observed an acetone bottle under the kitchen table, as well as the syringe on the coffee table, the book matches, and some coffee filters. In addition to the information contained in the affidavit, there was also evidence of evasive behavior by appellant when the officers first arrived at the residence to serve the arrest warrants; the air conditioner was on even though it was cold outside and the windows were open; and Norris found a hydrogen chloride gas generator protruding from under a bed that was still putting off an acid vapor.
As in Crain, in the present case there was no evidence that Investigator Norris made any material false statements or misrepresentations in his affidavit; there was no evidence that the judicial officer who signed the search warrant abandoned his detached and neutral role; and the affidavit provided evidence which could create disagreement among judges as to the existence of probable cause. Although we hold that a lack of manpower to secure the residence overnight to prevent a danger to anyone who entered is not a sound basis for a nighttime search warrant, nevertheless, we hold that the good-faith exception to the exclusionary rule is applicable in the present case because as in Crain, we believe that a reasonable, well-trained officer could have believed that a nighttime search was justified under the facts of this case.
Affirmed.
Gladwin, Bird, and Crabtree, JJ., agree.
Griffen and Neal, JJ., dissent. | [
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