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G-eorge Rose Smith, Justice.
This is a workmen’s compensation case in which the appellants, the employer and insurer, unsuccessfully contended before the commission and in the circuit court that the employee’s claim should be denied because his injuries were “ solely occasioned by intoxication.” Ark. Stat. Ann. § 81-1305 (Repl. 1960). When the facts are viewed as we must view them, in the light most favorable to the commission’s decision, the principal issue emerges as one of law: What is meant by “intoxication,” in the controlling section of the statute?
Inasmuch as the ultimate issue is one of law we need narrate the controlling’ facts only, disregarding conflicts in the testimony. Letsch, a truckdriver employed by the appellant truck line, underwent surgery in January, 1966, for the removal of most of his stomach. During his convalescence his surgeon, Dr. Dorman, prescribed a course of treatment including mepergan fortis pills. Letsch testified that Dr. Dorman did not warn him against taking the pills while he was driving. (Dr. Dorman usually gave such a warning.)
On June 25,1966, after Letsch had returned to work, he drove one of his employer’s trucks from Springdale to Kansas City, arriving at about 8:30 a.m. He did not sleep during the day before leaving' Kansas City that evening for Springfield, Missouri. He did, however, take two of the mepergan fortis pills. The commission, despite Letsch’s denials, found that he also drank some liquor while he was in Kansas City. About thirty minutes after leaving Kansas City the claimant ran off the highway and suffered the injuries for which compensation was awarded. He testified that he did not remember anything that happened after about 3 -.00 that afternoon.
The claimant unquestionably made a prima facie case by his own testimony and that of Dr. Dorman, who stated that, “very definitely,” the medication and a head injury suffered by Letsch three days earlier could have had a bearing upon the truck accident. The pills, he said, tend to make some patients “kind of go out of their minds, confused.” On cross-examination Dr. Dorman testified that the pills would potentiate the effect of alcohol and might cause a person to drop off to sleep. He explained that the pills are a relatively strong narcotic, combining a synthetic morphine and a tranquilizer. His testimony about the effect of combining alcohol with mepergan fortis is not disputed.
Under the statute, the issue is whether the claimant’s injuries were solely occasioned by intoxication. There is an affirmative presumption, relied on by the commission, that the injury did not result from intoxication. Ark. Stat. Ann. § 81-1324. Reading the two statutory sections together, we have held that “if the employer seeks to defeat recovery because of intoxication of the employee, the employer must not only prove that the employee was intoxicated, but the employer must go further, and prove that the death [injury] of the employee ‘was solely occasioned by intoxication.’ ” Cox Bros. Lbr. Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91 (1952).
Here the appellants insist that the statutory reference to intoxication must he taken to mean intoxication from narcotics as well as intoxication from alcohol. We cannot approve such a broad interpretation. Perhaps the argument would he sound if the narcotics were taken voluntarily as such, as by a drug addict. But construing the act liberally in favor of the claimant, we think it clear that the lawmakers’ reference to injuries caused solely by intoxication was not intended to include the effects of medication innocently taken upon the orders of a physician. It happens that here the consumption of alcohol contributed to the narcotic effect of the pills, but there is an abundance of substantial evidence to show that the alcohol was not the sole cause of the claimant’s condition.
One of the eases cited by the appellants confirms our conclusion. In State v. Glynn, 20 N.J. Super. 20, 89 A. 2d 50 (1952), a truckdriver was convicted of driving under the influence of intoxicating liquor upon proof that his condition was caused by a combination of drinking beer and taking benadryl capsules. The statute applied to a person “who operates a motor vehicle under the influence of intoxicating liquor.” Counsel for the defendant argued that the statute contemplated that intoxicating liquor should be the only cause of the prohibited condition. In rejecting that argument the court said: “Defendant would have the statute read: ‘A person who operates a motor vehicle while exclusively under the influence of intoxicating liquor . . .’ The Legislature has not so phrased the provision.”
By contrast, our legislature has so phrased the compensation law by denying compensation for injuries solely occasioned by intoxication. We conclude that the appellants failed to meet their burden of proving that the claimant’s injuries were solely due to intoxication.
We cannot sustain the appellants’ second argument, that compensation should be denied because Letsch was slightly off the most direct route from Kansas City to Springfield when the accident happened. The commission found no material deviation, saying: “Claimant was driving respondent’s truck and was going in the general direction of Springfield, Missouri, where his first stop was to be made. There is no evidence that claimant was on a personal mission.” We cannot say that the commission’s conclusion is not supported by substantial proof.
There is another issue — a minor one. The commission found a compensable permanent partial disability, even though Letsch was earning the same wages at the time of the hearing as he was before his accident. Such an award was upheld in Dockery v. Thomas, 229 Ark. 984, 320 S.W. 2d 257 (1959). We reasoned that what the claimant had earned for a short period of time after his injury did not prove that the commission was wrong in compensating him for the permanent injury to his body as a whole. We regard that decision as sound and reject the appellants’ insistence that it be overruled.
Affirmed.
Fogleman, J., concurs.
Harris, C.J., and Byrd, J., dissent. | [
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George Rose Smith, Justice.
This unlawful detainer action was brought by the appellant, as administrator of the estate of Mabel Brickey Ayres, to recover possession of a 177-acre farm owned by Mrs. Ayres at her death on September 7, 1963. By making bond the plaintiff obtained possession of the property during the pendency of the suit, the defendants being unable to make a cross-bond to retain possession. Trial to a jury resulted in a $16,750 verdict for the tenants, Mr. and Mrs. Lacy, upon their cross-complaint for damages for wrongful eviction. The appellant urges eight points for reversal, which for discussion we will condense into four contentions.
First, the appellant argues that the trial court was wrong in treating the contractual relation between Mrs. Ayres and the Lacys as a tenancy from year to year, requiring six months notice for its termination. This argument is without merit. From 1949 through 1963 Lacy farmed the land, at first under an oral agreement with Mr. Ayres and after his death under a similar agreement with Mrs. Ayres. The rent was paid on an annual basis, and the arrangement continued in force through all those years. Upon the undisputed facts the tenancy could only have been one from year to year. Peel v. Lane, 148 Ark. 79, 229 S.W. 20 (1921); Lamew v. Townsend, 147 Ark. 282, 227 S.W. 593 (1921).
Secondly, the appellant unsuccessfully objected, under the dead man’s statute, to Lacy’s testimony that by his agreement with Mrs. Ayres he was to pay as rent one fourth of the cotton crop and $20 an acre for the rest of the land. We find no prejudice, not only because there was other testimony to the same effect by the witness Robbins, but also because in determining the appellees’ maximum recovery we attach no importance to the terms of the year-to-year agreement.
Thirdly, the appellant complains of the trial court’s refusal to allow the introduction of a probate court order by which he as administrator was authorized to bring this action. No error occurred. The ex parte order was not binding upon the Lacys, yet it might have misled the jury into thinking that the probate court had made a controlling determination that the administrator had a valid cause of action.
Finally, the amount of the verdict is questioned, with reason. Lacy’s proof encompassed items of pecuniary damage totaling only $15,575, according to the appellees’ own brief, plus an apparent allowance by the jury of an additional $1,175 for the mental anguish suffered by the Lacys as a result of having been evicted. No authority is cited for the novel notion that a breach of contract like this one gives rise to a compensable claim for mental anguish, nor is there any such rule of law. Restatement, Contracts, § 341 (1932). Consequently we confine ourselves to the Lacys’ proof of pecuniary losses.
In unlawful detainer cases we have adhered to the measure of damages stated in McElvaney v. Smith, 76 Ark. 468, 88 S.W. 981, 6 Ann. Cas. 458 (1905): “When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover as damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agreed to pay, he may recover this excess and, in addition thereto, any other loss directly caused by the eviction, such as the expense of removal to another place.” See also Byers v. Moore, 110 Ark. 504, 163 S.W. 147 (1913).
Mrs. Ayres died on September 7, 1963 — too late in the year for her administrator to terminate the year-to-year lease by giving the required notice six months before January 1, 1964. The first notice to quit given by Brickey as administrator was in a letter dated November 27, 1963. This action was brought in the following February, when the Lacys were evicted by the sheriff.
Inasmuch as the jury allowed all the preeuniary losses enumerated by Lacy, our concern is merely to eliminate those not supported by substantial evidence or not allowable as a matter of law. Lacy testified that after receiving notice that he would not have the farm in 1964 he diligently tried to rent other farm land in Arkansas, Mississippi, or Missouri. He was unsuccessful, because by then all the available land had been rented to others. Lacy testified that he spent $459 in trying to find another place, that he had already spent $250 in preparing the Ayres place for cultivation in 1964, and that he spent $83 in moving his equipment after he was evicted. We consider all three items to be properly allowable.
When Lacy was evicted he had a combine and a tractor which he was buying on credit. As a direct result of his wrongful eviction he was unable, for lack of income, to keep up the payments on either machine. He thereby lost his equity of $3,800 in the combine and $1,800 in the tractor when the equipment was repossessed by the seller. We think the jury was justified in finding that those losses, in the language of the McElvaney case, were “a direct and natural consequence of the wrongful act of the landlord.” That is not true, however, of an asserted loss of a $1,200 equity in a truck, because Lacy did not buy that vehicle until 1964, after he had been evicted.
Ordinarily the element of damage that can be most convincingly proved by an evicted tenant is the difference between the rental value of the property and the price that he agreed to pay. Here Lacy contends in his brief that upon that score he is entitled to recover $7,983. That sum, however, was the entire amount of rent paid by his successor tenant in 1964. Of course that is not the measure of Lacy’s damages. The only definite testimony showing that his rental agreement was more favorable than that of his successor is his undisputed proof that in 1963 his rent for the same property amounted to only $6,346.74. Even viewing the case as favorably as possible in support of the verdict, we cannot sustain a loss-of-rental-value award exceeding $1,636.26, the difference between the 1963 rent and the 1964 rent.
'To sum up, we find that an allowance of only $8,-028.26 is supported by the record. In such a situation our practice is to reduce the judgment to the highest allowable figure and to affirm it as so modified. Kane v. Carper-Dover Merc. Co., 206 Ark. 674, 177 S.W. 2d 41 (1944); First Nat. Bk. of Minneapolis v. Malvern, 171 Ark. 994, 287 S.W. 185 (1926).
It is so ordered.
Fogleman, J., concurs. | [
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Carlton Harris, Chief Justice.
Appellant, Kenneth Beam d/b/a Beam Asphalt Company, instituted action against appellee, Jack Parson d/b/a Mena Red-E-Mix, seeking judgment in the amount of $5,414.77, the allegations being that appellant had suffered that amount of damages by reason of appellee’s furnishing defective and non-conforming base material, supposedly GB-3, this act necessitating the replacement of 2% to 3 acres of parking lot. Parsons filed a counterclaim for $3,759.41 representing materials furnished and equipment rendered and sold. The case was tried before the court, sitting as a jury, and at the conclusion of the evidence, Beam’s complaint was dismissed, and Parsons was granted judgment for the amount sought, plus interest from the date of judgment. Appellant brings this appeal, asserting several points for reversal.
Of course, this being a case from the Circuit Court, we are only concerned with whether there was substantial evidence to support the trial court’s decision, and it is accordingly unnecessary that we detail all of the evidence offered by appellant.
The facts, in brief, are that Beam took a sub-contract to build two parking lots, and a clay gravel sub-base was put in in approximately January, 1966. In April of the same year Parsons agreed to furnish GB-3 . base material and No. 8 mineral aggregate for the job. In May, appellee delivered a sample of material, which was testéd by Gene Daniel, a registered professional engineer of Port Smith, and operator of a soil and concrete testing firm. Mr. Daniel’s report stated:
“This material conforms to Arkansas Highway Department specifications for gravel base course GB-3.”
Daniel testified that the sample was acceptable, and the report reflects that the sample came from the source of Parson’s crushed gravel site. Beam’s testimony reflects procedure after receiving the material:
“Well, after it’s dumped on the job, the first thing after it’s dumped on the job, you have got to do is take either a dozer or motor grader and spread the material, and as soon as it’s roughly graded in, then you take your water and your rollers and grader, and usually those three pieces of machinery, well, you can prepare it, get your compaction and all with it.”
He used 35,000 gallons of water on this job. After spreading the material, and wetting it, it was “prime-coated,” and the seal coat was applied in early June. As the seal coat was rolled, it began to buckle under the weight of the roller, and the end result was that the GB-3 was taken off. A sample of the material used was given to Daniel who, after an examination, reported that it was not GB-3 material.
The evidence offered by various witnesses indicated that there could be six possible reasons for a parking lot to break apart, one being freezing, which cannot be considered here because there was no freezing weather during the period of construction. The other reasons given were improper rolling, excessive watering, improper compaction, base course too thin, and finally, defective materials, this latter cause being the contention of appellant.
Eli Depuis, employed by U. S. Motors as a manufacturing engineer, testified that he was already familiar v/ith the lot which was paved before the GB-3 was placed on it; that part of the ground was hard, but the side nearer the highway was softened to the extent that he conld not drive his Volkswagen on it. Although he went by the job each day, he said that he never saw the employees of appellant rolling and compacting this soft area, recognizing however, that it could have been done when he was not present. Parsons likewise testified that he never did see any rolling done. This testimony was disputed by Roy Paleide, job superintendent for the prime contractor, and Donald Bolton, who was working for Beam on this particular job, i-e., both testified that the lot was properly rolled. As to excessive watering, Daniel testified that ordinarily, to water down 12,711 square yards of material, 2 inches thick, for a single seal job, 20 to 25 thousand gallons of water would be used, and 35,000 gallons would be more than enough. The witness stated that whether this last amount would have a detrimental effect would depend upon the sub-base and sub-grade, i.e., whether there had been saturation. He said that 35,000 gallons on this project could be excessive, but there were too many intangibles to definitely reach such a conclusion.
An interesting observation was made by Dale Spencer, a resident engineer with the Arkansas State Highway Department, and James Looney, street commissioner of Mena, both stating that, in their opinion, 2 inches of GB-3 on top of the clay base would not be sufficient to carry traffic that would ordinarily be on a street or parking lot. When asked what his opinion would be if the evidence reflected that a lot with 4 inches of GB-3 material buckled the same way, Mr. Spencer stated that he would not express an opinion, since there are many things that can go wrong with a seal coat job. Spencer also testified that it was possible that materials could meet specifications when delivered, but not meet same when laid, and this could be either because the material was defective or because it was laid in an inefficient manner. Spencer mentioned that Daniel’s manner of sampling was not in conformity with the Highway Department’s general method, but that the first Daniel report showed that the material was well within specifications.
Appellant objected to the testimony of Looney on the basis that this witness had not had sufficient experience to qualify as an expert. The proof reflected that Looney had been employed by the City of Mena for six years as street commissioner, and had been in charge of construction, repair, and maintenance of all city streets. He had not had experience with G-B-3 materials. The witness had had experience in sealing since 1948 when working for the state, and we cannot say that it was an abuse of discretion for the trial court to admit this testimony. As stated in Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865:
“The determination of the qualifications of an expert witness to express an opinion is within the discretion of the trial judge, and we will not reverse his decision unless it appears that he abused that discretion. ’ ’
For that matter, this case was not tried before a jury, and there is no indication that the testimony of this witness had any particular influence on the court’s decision, it being remembered that Spencer, whose qualifications were not questioned, testified to the same thing.
Jim Beam, brother of appellant, and also a general contractor, admitted that he had never seen G-B-3 material laid thinner than 3 inches, and Mr. Faleide also testified that this was the first instance in which he had known of GB-3 materials being laid only 2 inches thick, although he stated that if the subbase, and other requirements of the job were complied with, the 2-inch thickness should not have too much effect.
As previously stated, there was evidence offered by appellant that the lot was properly rolled; that there was no excessive watering; that the sub-base had been properly compacted and had been permitted to settle for 4 to 5 months before base material was put on it. The Beams and Faleide testified that, in their opinion, the buckling of the parking lot was not caused by the fact that the GB-3 was only 2 inches thick. Still, these were all fact questions to be determined by the trial court. Certainly, there was evidence that the condition could have been caused by other than defective materials, and the trial court was not required to believe the statements of every witness who testified.
Parsons testified that the first knowledge he had of any complaint was when he sought his money and was advised by Beam that the materials had been unsatisfactory. From Beam’s testimony, it would appear that he had no suspicion of the cause of the trouble until the parking lot buckled, was ripped up-, and a sample further tested by Daniel. This seems unusual, since Beam was an experienced contractor, and, according to highway engineer Spencer, the Highway Department runs a complete test on GB-3 material for every 500 yards. Of course, Beam could have tested the GB-3 at intervals before using, and any deficiency would have been found.
Based on the testimony heretofore set out, we hold that there was substantial evidence to support the finding of the trial court.
Affirmed.
B-S was defined by Daniel as a natural or artificial mixture of gravel and soil mortar uniformly well graded from coarse to fine, and free from objectionable materials, and that 100% of such material should pass through a IV2 inch screen.
Actually, Mr. Faleide testified that he observed some of the material as it was brought in, and that it did not look the same as the material delivered at the beginning of the job. He called this to the attention of both Parsons and the contractor, but stated, “They told me that it was the same material and that it would meet the specifications. The same material as had been delivered to start with and that tests were made.” Accordingly, he had no further tests made. In referring to “they,” it is not clear whether Faleide was referring to Beam or to the prime contractor, although it was probably the latter. However, if the appearance was such as to be questionable to Faleide, one wonders why it was not also questionable to Beam. | [
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Lyle Brown, Justice.
This is an eminent domain proceeding instituted by the Arkansas State Highway Commission in connection with the construction of Interstate 40 through the town of PlumervilLe, Conway County. The taking traversed a substantial portion of a subdivision owned by appellees, George Poteete and wife. The Highway Commission’s principal point on appeal concerns the fact that the jury was permitted to consider possible damages to twenty-eight lots, no part of which was in the actual taking.
Sixty full lots and portions of thirty-three lots were within the new right-of-way. The Commission contended that those 93 lots were the only lots to be considered in awarding compensation. It was the landowners’ theory that 28 lots outside the actual taking were diminished in value because they were so interdependent with the parcels taken. The trial court submitted to the jury the described controversy in this manner: If the jury found that each of the 121 individual lots (60 taken, 33 partially taken, and 28 not touched by taking) constituted a single unit of value, then the Poteetes could not recover for any depreciation in value of the 28 lots; on the other hand, if the jury found there was a connected or wnity of use of the 121 lots, then the entire 121 lots should be taken as a unit of value and used in calculating compensation.
The Commission relies principally on Arkansas State Highway Comm’n. v. Taylor, 238 Ark. 278, 381 S.W. 2d 438 (1964). That case involved lots in a subdivision. ¥e held that where the only use shown for the lots was a separate and distinct use and the holding of each lot by itself, each individual lot constituted a unit of value. In that event those lots not in the actual taking could not be considered in calculating compensation.
The fact situation in Taylor hardly makes it applicable to the case at bar. There it was emphasized that no testimony showed that any one of the lots in the subdivision was used, or would be used, in connection with any other lots. We hasten to reaffirm the law in Taylor, but it does not encompass every situation in which there is a partial taking of a subdivision. Long* before Taylor, our Court made this pronouncement in Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S.W. 375 (1908) :
“This court has frequently held that in a proceeding by a railroad company to condemn a right of way the assessment of damages is not restricted to the injury done to the legal subdivision of land described in the petition, and that if the tract described is part of a larger connected body of land the owner may recover for the injury done to the tract as a whole. It follows from this that where the whole of a tract of land is taken it should be valued as a whole, and not according to the legal subdivisions as distinct and separate parcels of land.
“ ‘Whether a particular lot of land constitutes an independent parcel is a question which cannot be determined in the affirmative by the mere fact that it is separated from other land by a highway or street, or by paper lines, or by fences; nor can it be determined in the negative by the mere fact that it is all in one ownership and is not divided by streets or by paper lines.’ Wellington v. Boston & Main Bd., 164 Mass. 380; ...”
In general terms it may be said that the controlling principle is “separate and independent” utilization as opposed to a “connected or unity of use.” That is the essence of the test in Boles. See Nichols Em. Dom. Supp. V. 4, § 14.31; USA v. 26.81 Aeres, 244 F. Supp. 831; State v. Jay Six Cattle Co. (Ariz.), 353 P. 2d 185; U.S. v. Powelson, 118 F. 2d 79.
An examination of the lots, including the utilities, reveals these elements of interdependence or evidence of the same:
1. A substantial number of the “untouched” lots on the north of the interstate are dependent, for sewage purposes, on Wall Street, which was taken, that being the natural outfall of a sewer line;
2. Access to the “untouched” lots on the north:
(a) Lots 1-12 in the northwest corner have no access except through lots that were in the taking (saving two lots bordering on Highway 92);
(b) Lots 2-6, Block 2, and Lots 13, 14, Block 3, are dependent for access on streets and lots in the taking;
(c) Lots 1, 2, and 3, Block 1 could not be reached except by traversing several adjoining lots (excepting Lot 1 which is bordered by a street on the east side) ;
3. “Untoucher)” lots in the southwest corner:
(a) Lot 25, which was partially taken, abutted Highway 92. Lot 26 abuts Lot 25 on the east. Testimony was to the effect that Lots 25 and 26 needed to be joined in a single sale to make an attractive unit with highway frontage;
(b) The highest economic value of Lots 26-30 was said to be dependent on the top tier of five lots adjacent on the north, which tier was partially taken;
(c) A partial taking of Lot 40, which abuts Highway 92, allegedly destroyed the marketability of Lot 39; those two lots would have been combined to make an ideal building unit with highway frontage;
(d) The taking closed the west end of a ten-foot alley running behind Lots 26-30. Appraiser Barnes tes tified that none of those lots could ever be serviced by the dead-end alley;
4. Appraiser Barnes pictured the highway right-of-way as running the full length, east and west, of the subdivision and roughly cutting a wide swath through the center. He reasoned that the street pattern serving most of the “untouched” lots had been destroyed. (A majority of the streets in the affected area now “dead-end” into the new highway.) He also asserted that the right-of-way would have to be utilized to run sewer lines to the “untouched” lots on the north. That was the route laid out by the town of Plumerville. Presently, according to Barnes, the cost of laying those facilities would be prohibitive;
5. There was also evidence that a number of the lots would necessarily be sold in groups of “three-lot-deep tiers”; and others would be sold in two-lot units. Witness Pearce testified that a normal homesite in Plumerville required two or more lots of the general size of those in the subdivision.
Nichols summarizes the rule in this manner, which we consider applicable here:
“In many cases the court can, as a matter of law, determine that lots are distinct or otherwise, but ordinarily it is a practical question to be decided by the jury or other similar tribunal which passes upon matters of fact, which should consider evidence on the use and appearance of the land, its legal divisions and the intent of its owner and conclude whether on the whole the lots are separate or not.” Nichols Em. Dom. Supp., V. 4, § 14.31.
We hold that the trial court acted properly in submitting the matter to the jury and we have summarized evidence which we think made the question one for the jury to resolve.
One other contention is urged for reversal. The Commission contends that testimony regarding compensation for the twenty-eight lots, no part of which was taken, would be in the nature of an assertion for special damages; that special damages were not pleaded and therefore no recovery is allowable. The answer is that the landowners here tried their case on the theory that the 121 lots had a unit of use and that the taking of a-part of the unit diminished the value of the residual, or the twenty-eight lots. Diminution in value of part of an individual tract- — if it is a unit — is not classified as special damages. Arkansas State Highway Comm’n. v. Lewis, 243 Ark. 943, 422 SW. 2d 866 (1968).
Affirmed.
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Conley Byrd, Justice.
TMp action was tried upon the theory that the Louisiana tort-feasor’s liability insurance carrier through fraud and deceit lulled the injured parties into a sense of security until Louisiana’s one-year prescription ran on their claim. The carrier, Firemen’s Insurance Company of Newark, New Jersey, appeals from jury verdicts awarding Mrs. Zelma Jones $15,000; her daughter, Paula Jones, $1,000; her husband. Elston Jones, $1,000; and her brother, Jerry Ezell. $5,000. Elston Jones cross appeals on the basis that the $1,000 verdict in his favor is inadequate. Leo Ezell, father of Jerry Ezell, cross appeals, urging that the court erred in failing to enter judgment in his favor for the amount of the jury’s corrected verdict.
The record shows that Mrs. Jones had not more than an eight-grade education and that her parents, Mr. and Mrs. Leo Ezell, had even less education. Mrs. Jones was married at the age of fourteen and had two daughters. The older daughter, Paula, had scoliosis and was being treated by a specialist in Houston.
On July 22, 1965, Mrs. Jones, Paula and Mrs. Jones’ brother, Jerry Ezell, were on their way to Houston to have Paula’s brace adjusted. While stopped at a traffic light in Shreveport, Louisiana, their automobile was hit from the rear by Edgar F. Kemp. Kemp admits having imbibed some alcoholic beverages prior to the collision. The investigating police officer testified Kemp had been drinking. Kemp pleaded qnilty to a charge of reckless driving. Mrs. Jones described him as being drnnk. Kemp admitted liability to both Mrs. Jones and the investigating officer.
Mrs. Jones, her daughter and her brother all received hospital treatment in Shreveport. Mrs. Jones was later transferred by ambulance to a hospital in El Dorado, Arkansas. She was in the hospital again in September, October, February, March, May and July for treatment related to her July 22, 1965 injuries, according to Dr. Moore, her treating doctor.
Mrs. Jones says that while in the Shreveport hospital she was called by Mr. Maddox, one of appellant’s adjusters, who suggested that she should get any kind of medical care she needed and assured her that her bills would be taken care of.
About August 17, 1965, Mr. Williams, an employee of Chambers Claim Service, took a written statement from Mrs. Jones in the presence of her husband and her mother. Mrs. Jones testified that she also signed medical authorizations at that time for all the doctors except Dr. Moore and that she delivered one to Dr. Moore. Williams denies that the medical authorizations were signed.
The Joneses say that during Williams’ visit Mrs. Jones got to talking about the medical expenses and went to crying. Williams went over to Mrs. Jones and told her to brace up, that she knew he was going to take care of her and to let him worry about it. She had been in and out of the hospital so much that it was too early in the day to evaluate the claim, and as quick as her condition permitted they would make as early a settlement as possible. They say Williams told Mrs. Jones that with the type of injury she had it would take a year to evaluate the claim. Mrs. Jones had known Williams when he worked on the El Dorado police force.
Mr. Jones testified that when Williams asked him if he had contacted an attorney, he replied that he had only talked to Mr. Walter Brown on the telephone one time; that Williams said they didn’t need a lawyer; that he was going to take care of them; and that the Joneses only had to submit a price and Williams would take care of the rest of it.
After taking the statement from Mrs. Jones, Williams called her three or four times and Mrs. Jones called him three or four times. Her testimony is that when she would try to rush Williams up, he would tell her that they couldn’t file a claim for a year and that they had to wait a year and a day from the accident date to submit one figure to the company. The last telephone call from Williams came about two weeks before July 18, 1966, when he called to say he was going on a vacation shortly and would be passing through Little Rock, and if the Joneses could come up with a figure he would be glad to submit it to the insurance company as he went through Little Rock and perhaps he would have something for them when he came back, which would be two or three days after July 22.
About two weeks before July 22, 1966, Mrs. Jones, who acted somewhat as spokesman for all the parties, took the accumulated medical bills to Chambers Claim Service and matched them to see that Chambers Claim Service had all the bills that she had. According to Mrs. Jones, she and Mr. Whatley, a partner in Chambers Claim Service, didn’t have a whole lot of conversation, but when she left she thanked him for the kindness Williams had shown them in handling the claims, said that the year was almost up and they had survived it and appreciated what Williams had done. Whatley made no comment.
On July 18, 1966, before the running of the one-year prescription on July 22, Mr. Jones notified Mr. Chambers, the other partner in Chambers Claim Service, that they were ready to submit a figure. Chambers stated that he was tied up but would get out as soon as possible — maybe the next day. When Chambers did not contact the Joneses as promised, they called Chambers Claim Service several times without being able to reach anyone, but each time left their name and phone number. Their next contact from Chambers Claim Service was a letter dated August 22, 1966, stating that the insurance company had instructed them to close their file as there was no further need for their services. Upon telephone inquiry to Chambers Claim Service, Mrs. Jones was informed that this was the first time a file had ever been pulled from them in this manner and that they did not know what was wrong or why it had been done.
After some difficulty Mrs. Jones reached Mr. Foster, the claims manager for Firemen’s in Shreveport, and asked for an explanation of Chambers Claim Service’s letter of August 22. She informed him that she had promised to call Chambers Claim Service back and tell them why the file had been pulled out of their hands. She says that at this point Mr. Foster laughed and said she needn’t worry about calling Chambers Claim Service back, that they were instructed from the beginning and well knew what to do with that claim from the beginning up to the point of writing the letter, that the time had expired, and that the file had been forwarded to Dallas and was closed and forever void. This was the first time the Joneses and Ezells knew that the statute of limitations in Louisiana was one year. (Arkansas has a three-year statute.)
Much of the foregoing testimony was disputed by witnesses for Firemen’s.
Firemen’s file shows that it had reminded-Chambers Claim Service of the one-year prescription in Louisiana as early as February 1966. Both "Whatley and Foster admit they knew the one-year statute was going to run within two weeks from the time Mrs. Jones went to Chambers Claim Service to match up the bills. Some time in June or July Foster had talked to Whatley about the prescriptive period. His inquiry was to see, if the twelve months did go by, that their skirts were clean so they could not be accused of having led the Joneses astray. Although he says he cautioned Whatley to be careful from this point on, he subsequently corrected his testimony to say that the call was made on July 22, 1966, for the purpose of informing Chambers Claim Service that the prescriptive period had run. Mr. Foster admitted that he had the authority to waive the one-year prescription (claim), but that he was asserting that this claim was barred by prescription in Louisiana. Kemp said that the carrier got over to him the point that he could still be sued in Arkansas for two more years but not in Louisiana.
In the action against appellant, appellees joined as parties defendant the adjuster Tom Williams, and J. M. Chambers and H. R. Whatley, partners doing business as Chambers Claim Service. In the same complaint, appellees alleged a cause of action against W. R. Brown, an attorney, on the theory of malfeasance. The jury returned a A^erdict only against Firemen’s as above stated.
Firemen’s first ground for reversal is that the court erred in failing to grant its motion to dismiss at the conclusion of plaintiff’s testimony, for the reason that fraud can not be predicated on misrepresentations as to matters of law nor on opinions on questions of law based on facts known to both parties, especially when the representations are made by the avowed agent of the adverse interests.
We disagree Avith appellant’s contention because we understand a representation as to the laAV of a foreign state to be a question of fact rather than of law. See Aimot., 24 A.L.R. 2d 1039 (1952), Restatement, Torts, §545(2), Comment (e). Furthermore, under the fact situation here recited, we find no direct misrepresentation of the law of the state of Louisiana. Actually, the gravamen of the offense is the agent’s promising to settle with appellee and advising her to wait a year to evaluate her claims. She was therefore lulled into a sense of security in the state of Arkansas while remaining ignorant of Louisiana’s one-year prescription. This conduct concealed from the Joneses the fact that their claim would be barred before they knew the extent of their injuries.
Firemen’s second point is that it was entitled to a direct verdict because no proof was offered of conspiracy between Chambers Claim Service or their employee Williams and Firemen’s. But here again Firemen’s overlooks appellees’ complaint, which alleged fraud or conspiracy to commit fraud. We have consistently held that in actions against joint tort-feasors where a joint relationship is alleged, there may be a recovery against all of the defendants or against any one of them if the proof warrants a finding of his participation in the tort. Patterson v. Risher, 143 Ark. 376, 221 S.W. 468 (1920). In this case appellees were not damaged by the alleged fraud until Firemen’s, which had the option either to plead or to waive the one-year prescription, closed its file in reliance on the bar of the prescription.
The third point for reversal is that Firemen’s was entitled to a directed verdict because no testimony was introduced as to the value of appellees’ claim against Kemp in Louisiana. This alleged error is not supported by the record. There was both lay testimony and testimony of Dr. Moore about appellees’ injuries. Based upon this testimony the trial court instructed the jury in detail about the damages appellees would have been entitled to recover in a direct action against Kemp, and about the burden of proof and the defenses available. Firemen’s, by failing to argue any objections to the instructions, has waived any error in connection therewith.
Firemen’s cites no authority for its argument that only expert testimony could be received to show the present value of appellees’ claim against Kemp in Louisiana. We seriously doubt that such a rule prevails, but at any rate we must hold the contention without merit. In this instance appellees showed the same damages they would have proved had the case been tried in Louisiana, and under Ark. Stat. Ann. § 27-2504 (Supp. 1967) Firemen’s was entitled to* and did have the matter submitted to the jury under the law of Louisiana.
Under the fourth allegation of error, Firemen’s makes the inconsistent and contradictory argument that appellees failed to prove the basic allegation in their complaint that they lost their cause of action in Louisiana by reason of prescription. It is difficult to understand how one can make this argument while denying liability to appellees because the one-year prescription has run and while their claims agent, who has authority to plead or waive the statute, testifies that the action is barred by Louisiana law. Notwithstanding the inconsistent positions we find that the claim is barred under Louisiana’s one-year prescription. Green v. Grain Dealers Mutual Ins. Co, 144 So. 2d 685 (La. App. 1962) and Craig v. Montelepre Realty Co., 202 So. 2d 432 (La. 1967).
In the Green case, Mrs. Green alleged that while riding in a vehicle driven by her husband in Louisiana, the vehicle was struck from the rear by Mrs. Richaud. Mrs. Green, a resident of Texas, returned to her home state, where she was contacted by Crawford & Company on behalf of Grain Dealers Mutual, the liability insurer of Mrs. Richaud. Crawford & Company agents on numerous occasions advised Mrs. Green that there was no need to obtain legal assistance in asserting her claims; that she would be paid for her damages by the insurance company and would not be prejudiced by continu ing to negotiate; and that she had two full years in which to file suit. Mrs. Green was ignorant of the one-year prescription statute. In denying recovery the Louisiana court pointed out that it only gave relief against the running of the prescription law to prevent the injustice of an innocent party being lulled into inaction in the enforcement of a claim by reason- of defendant’s concealment or fraudulent conduct, or of defendant’s failure to perform a legal duty, causing plaintiff to be kept in ignorance of his rights. It then pointed out that the alleged representation that Mrs. Green had two years in which to bring her cause of action was but a misrepresentation of law and not of fact, and that under Louisiana law no one can allege ignorance of the law to prevent the running of a prescriptive right. In denying recovery the court pointed up two other grounds, one that the adjuster was under no duty to advise Mrs. Green correctly on the Louisiana law of prescription, and the other that Mrs. Green had an opportunity equal to that of the adjuster to learn the Louisiana law concerning the one-year prescription in tort cases. In doing so the court recognized that other jurisdictions would permit recovery for Mrs. Green.
In the Craig case, Mrs. Craig proved damages to her dwelling from the use of both a pile driver and other heavy equipment in the construction of a hospital on adjacent land. After the pile driving had begun Mr. Montelepre assured Mrs. Craig that adjustment of damages would be made toward the end of the construction, and on occasion sent workmen to repair some of the damages when they occurred. The pile driving activity ceased on April 10, 1963, and suit was not filed until April 17, 1964. However, construction of the hospital was continuing. The trial court charged the jury as follows:
“You are charged that when a party lulls another into the belief that he will suffer no loss by his inaction, and thus induces him to refrain from claiming a debt, prescription will not begin to run until the party is undeceived.”
The court on appeal disallowed Mrs. Craig’s claim for the pile driving damages and in so doing said:
“If the jury found that the plaintiff was lulled into inaction by the assurances of Mr. Montelepre in response to the corresponding charge, and was thus entitled to damages which would otherwise be prescribed, then such a finding would be manifestly erroneous since the evidence adduced could in no wise indicate acts lulling the plaintiff into inaction so as to prevent the running of prescription. The acts of the defendant alleged to mislead the plaintiff must be such as to prevent him from knowing of his cause of action or must import of deliberate concealment, or fraud, or failure to perform a legal duty.”
Firemen’s fifth alleged error is that it was entitled to judgment notwithstanding’ the verdict because: (1) under the doctrine of respondeat superior the jury, by exonerating the adjusters, exonorated Firemen’s as their principal, since Firemen’s could act only through agents; (2) under the theory of conspiracy the exoneration of the co-conspirators exonerated Firemen’s; and (3) a corporation standing alone cannot be gulty of conspiracy when the alleged co-conspirators have been exonerated.
We find appellant’s contentions under the fifth allegation to be without merit — first, because the complaint obviously alleges joint and several liability on the part of Firemen’s, Chambers Claim Service and Tom Williams, and not necessarily on the doctrine of respondeat superior; second, because the proof shows that Firemen’s also acted through an adjuster named Maddox and its claim manager, Foster; and third, because the fraud was not complete until Foster exercised his discretionary authority to rely upon the one-year prescription. Thus obviously some of the conduct was performed by persons other than Chambers Claim Service and its agents and subsequent to their actions.
It was pointed out in John Deere Co. v. Metzler, 51 Ill. App. 2d 340, 201 N.E. 2d 478 (1964):
“It was said in Hyman v. Burmeister, 216 Ill. App. 98, If a plaintiff fail in the proof of a conspiracy or concerted design, he may yet recover damages against such of the defendants as are shown to be guilty of a tort, resulting in damages to him. The charge of conspiracy, where unsupported by the evidence, will be considered mere surplusage, not necessary to be proved to support the action.’ ”
To the same effect see Patterson v. Risher, supra.
The cross appeal of Leo R. Ezell, personally and individually in his own right, arises in this manner: Proof of medical bills for Jerry Ezell was put into evidence by stipulation, agreeing that the medical expenses had been incurred but without an agreement that they were incurred as a result of the injuries received in the accident. The form of the verdict submitted to the jury left it to the jury to find generally for appellees and then had individual interrogatories as to the damages of each claimant. When the verdict was returned the jury had found damages for all claimants except Mr. Ezell. As to him, the verdict was left blank. The foreman explained to the court that nine of the jurors had found no damages in favor of Mr. Ezell and told the court that if it preferred the word “none” it could be so written. Thereupon the word “none” was inserted and the verdict was signed by nine of the jurors. The court explained to the jurors that this trial had extended over a week and that, should the Supreme Court determine that it should have sent the jury back out to determine the damages because the verdicts were inconsistent, it would be a rather expensive trial and a waste of a lot of time. To avoid suck expense, the court again instructed the jury on the damages Mr. Ezell would be entitled to receive and sent them back out to reconsider the matter. The jury this time returned a verdict for $2,000. In drawing tlie judgment the trial court gave Mr. Ezell only bis cost money.
Mr. Ezell here argues that the court, in sending the jury out for the second verdict, must have been acting under Ark. Stat. Ann. § 27-1741.3 (Repl. 1962) and that having exercised the discretion to send the jury back out, it must enter a verdict for the amount found. With this contention we do not agree, because as we read the court’s comment it sent the jury out the second time only to avoid the cost of a new trial should this court rule that it abused its discretion in not sending them out. In other words, as we understand the court’s action, it did not determine that the first verdict was inconsistent with the evidence but was merely trying to avoid the cost of a new trial should its judgment prove erroneous.
While the record shows that Mr. Ezell incurred medical expenses upward of $2,000, there was a clear dispute as to whether they were incurred as a result of the accident. We can not say that the first verdict was not supported by substantial evidence.
Appellee Elston Jones alleges error of the trial court in failing to enter judgment notwithstanding the verdict for medical bills incurred by him for his wife in the sum of $4,317.47 and for his daughter in the sum of $560.70. Here again the amount of the medical bills was stipulated but without agreement that they resulted from the collision. Under our decisions, Fullbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49 (1928), there was substantial evidence to support the finding of the jury and we can not say the trial court’s action in entering judgment for the amount of the jury’s verdict was erroneous.
Affirmed.
Brown and Jones, JJ., dissent.
J. Fred Jones, Justice.
I do not agree with the majority opinion in this case. The statutory prescription period for bringing actions for personal injuries is one year in Louisiana. One year has expired since the collision, out of which this cause of action arose, and no suit has ever been filed by any of the appellees in Louisiana. Instead of filing their suits in Louisiana where the accident occurred and the defendant tortfeasor lived and could be served with process, the appellees brought suit in Arkansas and recovered judgments for damage against the liability insurance carrier of the Louisiana tort feasor for fraudulently causing appellees to forego the filing of a suit in Louisiana within the prescription period of one year. All of the alleged statements and acts constituting the gravamen of the alleged fraud were directed toward the appellee Mrs. Jones, but judgments were awarded to all four of the appellees.
I find no evidence in the record that appellees’ causes of action in Louisiana has expired in the light of the fraud alleged by appellees. I am unwilling to say that an insurance adjuster’s authority to waive the statute of limitations in the settlement of claims, and his election not to do so, amount to a judicial determination that a cause of action has been lost by prescription, in Louisiana or any other state, where it is provided by statute or otherwise, that the statutory period of prescription may be suspended or tolled by actionable fraud.
Consequently, I am unwilling to assume, as I feel the majority was required to do in affirming this ease, that appellees had lost their cause of action in Louisiana at the time this suit was filed in Arkansas.
There are 116 pages of the Louisiana Code devoted to causes which interrupt and suspend prescription in that state. (West’s L.S.A. Civil Code, pages 259-375). The plea of prescription in Louisiana, like the plea of limitations in Arkansas, is a matter of defense to be affirmatively pleaded by the defendant. By legislative enactment, courts cannot supply the plea of prescription in Louisiana, L.S.A. Civil Code, Article 3473. In Louisiana, prescription is a “special defense” that must be pleaded, and if a complaint states a cause of action justifying relief and the prescriptive plea is not made, the court cannot supply it, but must give judgment for the plaintiff if the demand is otherwise established. Sirmon v. Cron & Gracey Drilling Corporation, 44 F. Supp. 29. Delay does not affect plaintiff’s cause of action in Louisiana, where the defendant does not plead prescription. Sporl v. New York Indemnity Co., 176 La. 363, 145 S. 771. In Louisiana the plea of prescription is persona] to the defendant and discretionary with it. U. S. v. Mercantile Nat. Bank at Dallas, 67 F. Supp. 759.
The rule “contra non valen tern agere nulla currit praescripto” is also applied in the state of Louisiana to prevent the injustice of an innocent plaintiff being lulled into a course of inaction in the enforcement of bis right by reason of concealment or fraudulent conduct by the defendant, or because of his failure to perform a legal duty whereby plaintiff has been kept in ignorance of his rights. Kennard v. Yazoo & M.V.R. Co., 190 So. 188.
As I view this case, it was submitted to the jury on hearsay evidence and the assumption that Edgar F. Kemp, the Louisiana tort-feasor, would have had no defense, even in mitigation of damages, under the Louisiana law if the suit had been filed and tried in that state. Aside from Mrs. Jones’ own testimony, I find no evidence of actionable fraud in this case. The dramatic nature of Mrs. Jones’ testimony adds nothing to its quality as substantial evidence in my opinion.
Mrs. Jones testified that she had observed Kemp driving out from a beer tavern and following her auto mobile; that he was lying over on the steering wheel and was weaving his automobile from side to side while driving behind her; that she had been stopped for the traffic light a few seconds when Kemp ran into the rear of her automobile, knocking it through the intersection and to the second parking meter beyond the intersection; that her neck was injured to the extent that she was unable to hold her head up; that when she got out of her automobile, it was necessary for her to take hold of her hair with one hand in order to hold her head up while talking with Kemp; that Kemp admitted that the accident was all his fault, that he had $100,000 insurance on his automobile, and that she had nothing to worry about. She testified that Kemp was obviously drunk; that he fell to one knee and then to the other knee and finally had to pull himself up and brace himself against an automobile while talking to her. She testified that she “passed out” soon after a traffic officer arrived; that she was taken to a hospital in Shreveport where Mr. H. Gr. Maddox, a claims representative for Kemp’s liability insurance carrier, Firemen’s Insurance Company, called on her and advised her not to worry about anything, to make all the long distance telephone calls necessary and that the company would assume full responsibility for all necessary bills.
The fraud Mrs. Jones complains of primarily had to do with a Mr. Williams. She testified that after returning to her home in El Dorado, Arkansas, she was advised by Mr. Williams, an employee of the Chambers Claim Service, to whom the matter had been referred by the insurance company, that no settlement of her claim could be made for a period of one year. The effort required to elicit this testimony from Mrs. Jones also detracts from its quality as substantial evidence of fraud insofar as I am concerned. .
“Q. * * * Did you discuss any other subjects down there ? Did you ask him any questions or discuss any other subjects?
A. Well, I asked him — He told me that he would take care of the claim and that we would have to arrive at the amount; that it was too early yet; that this kind of claim would have to run its course, was, I believe, the way Mr. Williams stated it to me, as best I remember now, and in telling this I’ll say, so the jury can understand this, that I didn’t know anything about it then, not anything whatsoever. I didn’t know the difference between a claim or none of — Still don’t know what to call it, as you can see. I knew a little bit more when these depositions were taken and know a little bit more about all of it now than I did then, but I didn’t know anything about it and I believe that he said it had to run its course. It was too early in the game to do anything then, but at the end of the year or the period of a year, that we would have to tell him the figure. He’d handle everything for us in the claim except the figure; that we’d have to tell him what we wanted, the insurance company, what we wanted to negotiate over the figure and start that and I was asking —
Q. Now did he say anything else with reference to this twelve month period?
A. Well, I don’t think I asked him a lot. Well, that did upset me and I said. ‘You don’t mean it’s going to be that long?’ and he said, ‘Well, this is something yon just can’t estimate overnight’. ‘It’s something that your condition could vary from, from time to time’, and I don’t remember how he consoled me with that right now. It’s been too much passed since then, but he did tell me that it would be that length of time before it would be anything done.
Q. Did he comment further why it had to be that length of time? Anything else? Any further comments about the twelve months period?
A. Not that I can remember, Mr. Whetstone. He just said that it was a twelve month waiting period to evaluate a claim of this type.
Q. Well, did he explain what he means by Waiting period’?
A. I can’t remember.
Q. Well, what did you say when he said about waiting the twelve month period?
A. Well, that upset me. I knew that I had already had two hospital bills and wondered what more it was going to run into and I didn’t know what to evaluate this claim meant and I didn’t know anything about it, what it meant or what to expect or nothing and he said that he would go ahead and get everything together and for me to get the authorizations on to Dr. Moore and that he would take those and get the information from Shreveport and that it was a time waiting period.
Q. What do you mean ‘time waiting period’? Did he explain that to you?
A. He said you just can’t evaluate a claim like this until after a year, a whiplash case. He said he had handled a lot of them and it just took time to evaluate them; that you couldn’t tell whatever injuries you had at the end of a period would be; that that’s what he had understood, I believe was the explanation that he left me with.
Q. Did you. try to hurry him up any on the thing?
A. Yes, sir, I asked him wasn’t there anything that he could do.
Q. And what did he say?
A. He said no; that there wasn’t anything could be done. We just had to wait; that the insurance — there wasn’t anything to worry about; that it was a liability case; that they would pay it; that it was an open and closed or open and shut case, was the way he said it. It wasn’t anything to worry about. The man hit me from the rear. He was drinking and I was sitting still and it wasn’t any fault of mine and the insurance company was going to pay off, just don’t worry about that, but we just had to be patient with them and wait until this waiting period — this —
Q. What was this waiting period all about?
A. Well, it was just a twelve month waiting period. I knew they was going to pay us and knew it would be just the first day or the next day after the twelve months.
Q. Where did this twelve month business ever come in? Where was that ever introduced into the conversation between you and him? Who ever mentioned that?
A. Mr. Williams told me that.
Q. When did he first tell you that?
A. Just after he had finished taking the statement from me, I believe.
Q. Did he mention it any other times?
A. "Well, every time I talked to him on the telephone.
Q. And you’d try to rush him up or shorten the twelve months?
A. Yes, sir, and he would ask me had we arrived at a figure yet and did I have any medical bills and whatnot and I’d tell him yes, I had a few and that we still hadn’t arrived at a figure to submit to the insurance company and he’d tell me, well, that if I did to call him and let him know, but don’t worry about it; that we had plenty of time; that he had to wait, but in case I did arrive at a figure to let him know.”
Mrs. Jones testified that she relied on this information and these representations and made no effort to settle her claim against Kemp until a year had passed, at which time she was advised that the prescription period in Louisiana was one year; that the year had run out and that the insurance company had closed its file on her case.
This suit was filed in Union County Circuit Court against Kemp, Chambers and Whatley, d/b/a Chambers Claim Service, Tom Williams, their employee, Firemen’s Insurance Company, and also attorney Brown, who had represented Mrs. Jones in settling her claim for medical benefits under the provisions of her own automobile insurance policy. The complaint contained eighty-six paragraphs and prayed judgments against Kemp, on account of his negligence and misconduct, for $46,000 in favor of Elston Jones; for $10,000 in favor of Paula Jones, a minor; for $100,000 in favor of Mrs. Jones; for $20,000 in favor of Leo B. Ezell; for $20,000 in favor of Jerry Ezell, a minor, and for $250,000 punitive damages. The complaint alleged conspiracy between Kemp and his liability insurance carrier and its agents and employees, and alleged fraud on the part of all of them in causing appellees to delay bringing an action in Louisiana for the recovery of damages for personal injuries until after the prescription period had run in that state, and in the alternative the complaint prayed judgment against all the defendants in the same amounts prayed against Kemp.
The cause was submitted to the jury on the issue of fraud and the jury found in favor of all the defendants except the insurance company, and rendered a verdict in favor of the four appellees against Firemen’s Insurance Company in amounts totaling $23,000.
At the trial Mrs. Jones testified that Williams told her, when she visited him in Texas, that the insurance company had specifically directed him to lull her into a sense of security until the . Louisiana prescription period had run. Such statement was emphatically denied by Williams, who was no longer employed by the Chambers Claim Service. As a matter of fact, all of Mrs. Jones’ testimony was emphatically denied, except as to the occurrence of the accident. Kemp appeared specially and testified that Mrs. Jones told him, at the scene of the collision, that she was not injured. The police officer who investigated the collision testified that the automobile driven by Mrs. Jones was 'knocked forward about the length of the automobile from the point of impact. Mr. Maddox testified that he made several attempts to take a statement and obtain medical authorizations from Mrs. Jones while she was in the hospital at Shreveport, but that she would not see him and that he never did see her at all. This testimony was confirmed by Mr. Foster, claims manager for Firemen’s, and Mr. Maddox’s supervisor. Mr. Maddox and Mr. Foster also testified that efforts were continued through the Chambers Claim Service; in El Dorado to obtain medical authorizations from Mrs. Jones so that the claims could be evaluated; that Mrs. Jones would only submit medical bills but would not sign medical authorizations so that the company could determine the nature and extent of her alleged injuries, and the validity of the medical bills submitted.
In Craig v. Montelepre Realty Co., 202 So. 2d 432, cited by the majority, the question of prescription was permitted to go to the jury under an instruction, as follows:
“You are charged that when a party lulls another into the belief that he will suffer no loss by his inaction, and thus induces him to refrain from claiming a debt, prescription will not begin to run until the party is undeceived.”
The Craig case was an action for personal injury and property damage caused by vibrations from a pile driving operation. The instruction was not held erroneous as a matter of Louisiana law. The Louisiana court simply held that had there been a finding that the plaintiff had been lulled into inaction and therefore entitled to damages under the charge, such finding would be erroneous under the facts of that case because the evidence only showed that the defendant had promised to make final adjustments toward the end of the operation. The operation continued on for some time after the vibrations ceased, and the defendant had repaired some of the damage from time to time as it occurred. In connection with the instruction, the Louisiana court said:
“If the jury found that the plaintiff was lulled into inaction by the assurances of Mr. Montelepre in response to the corresponding charge, aud was thus entitled to damages which would otherwise be prescribed, then such finding would be manifestly erroneous since the evidence adduced could in no wise indicate acts lulling the plaintiff into inaction so as to prevent the ruiming of prescription. The acts of the defendant alleged to mislead the plaintiff must be such as to prevent him from knowing of his cause of action or must import of deliberate concealment, or fraud, or failure to perform a legal duty. This is illustrated by the cases cited by both the plaintiffs and the defendant. Odoberto v. Virgin, Pletier’s Orl. App. No. 7986.
Kennard v. Yazoo and M.V.R. Co. La. App., 190 So. 188 (La. App. 1939).” (Emphasis supplied.)
When a complaint in Louisiana shows on its face that the prescription period has run, it appears to he incumbent upon the plaintiff to allege acts of the defendant, such as to prevent him from knowing of his cause of action or that import of deliberate concealment or fraud, or failure to perform a legal duty.
Kennard v. Yazoo & M.V.R. Co., supra.
Instead of filing suit in Louisiana and determining in the courts of that state, whether they had actually lost their cause of action by prescription, the appellees apparently assumed that their right to maintain an action in a Louisiana court expired when they were advised by an insurance adjuster that the claim file had been closed because of the expiration of the period of prescription in Louisiana. As I see it, the appellees filed the present damage suit in Arkansas alleging loss of their cause of action in Louisiana because of the same fraud they might well have alleged in Louisiana to show that they had not lost their cause of action in that state.
Appellees have suffered no damage, and they claim none, merely because the prescription period has run in the state of Louisiana. The damage they have suffered, if any, and the damage they claim, is for the loss of their right to maintain a lawsuit in Louisiana, because the prescription period has run in that state. I find no proof in the record that such fraud as appellees allege, caused them to lose their cause of action in Louisiana. Such fraud as appellees allege in this case is the very fraud that may have suspended prescription in the state of Louisiana.
The majority say that the fraud in this case was not complete until Foster exercised his discretionary authority to rely upon the one year prescription. It seems to me that the majority is elevating the decision of a claims adjuster, in the exercise of his discretion in handling of claims, to the decision of a judicial tribunal that is final and binding. An insurance claims adjuster, or claims representative, may exercise his discretionary authority to offer only a specified sum in settlement of a claim, but certainly such exercise of discretion has little to do with the outcome of a lawsuit. It is entirely possible that the appellant insurance company, through competent attorneys, would have taken an entirely different view toward a complaint filed in the proper court in Louisiana, than the claim agents took toward the adjustment of the claims of appellees. It is entirely possible that the appellant, on advice of counsel, would not have pleaded prescription as a defense to a complaint filed late because of such fraud as is alleged in this case. Certainly there is no actionable fraud in a statement by a claims agent that his employer will plead prescription or rely on the statute of limitation in event a suit is filed. Actionable fraud relates to a past existing fact and not to future events or occurrences. Crider v. Simmons, 192 Ark. 1075, 96 S.W. 2d 471.
The majority seem to hold that a statement made by an insurance adjuster, as to the Louisiana statute of prescription, if made in Louisiana, would be a statement of law and not actionable in fraud, but if the adjuster steps across the state line and makes the same statement in Arkansas, it becomes a statement of fact and is actionable. Be that as it may, the most severe acts of fraudulent conduct complained of here, consisted of alleged statements made by Mr. Williams, an Arkansas adjuster, and made in Arkansas and Texas, pertaining to the Louisiana law. It would at least be interesting to know how the Louisiana courts would have treated the matter had it been presented to the courts of that state.
The case of Green v. Grain Dealers Mutual Ins. Co., 144 So. 2d 685, cited by the majority, is no authority for how the Louisiana courts would have treated the fraud alleged by the appellees in the case at bar. In the Green case the claim agent told the plaintiff that the prescription period in Louisiana was two years and that the insurance company would pay her. In the case at bar Mrs. Jones says that Williams told her that there was a waiting period of one year on this type of claim and then later told her that the insurance company had specifically instructed him to lull her into inaction until the statutory period had run. Williams denied making such statements, but if a Louisiana court had heard the testimony, and had believed Mrs. Jones, it undoubtedly would have considered such statements as more than mere statemets of Louisiana law. As vague as - appellee Jones’ testimony is as to what Mr. Williams told her about a one year waiting period, such information of itself should have put appellee on such notice as to cause her to at least make inquiry of an attorney. If, however, a Louisiana court had excused Mrs. Jones of her own lack of diligence, such court might have even found that Mrs. Jones was led to believe that she had no cause of action at all for a period of one year from the date of the accident, and that the appellant had fraudulently concealed her actual cause of action.
In my opinion the appellees showed no diligence whatever in presenting their cause of action against Kemp in Louisaina. A charge of fraud must he established by evidence that is clear. Crider v. Simmons, supra. If appellees lost their causes of action by prescription in Louisiana, I am convinced that they did so through their own delay, and not because of fraud practiced upon them by the appellant. If the alleged fraud prevented the appellees from filing suit in Louisiana within the year following the accident in that state, I am of the opinion that the courts of Louisiana, and not the courts of Arkansas, should say whether appellees have lost their cause of action in Louisiana.
I would reverse the judgment of the trial court.
Brown, J., joins in this dissent. | [
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Paul Ward, Justice.
The prime issue is whether Mary Gr. Norton (land owner, and appellant here) entered into a valid lease with Roy Hindsley (lessee, and appellee here) for the years 1967, 1968, and 1969. The issue is further clarified by the pleadings — summarized below.
On February 13, 1967 appellant filed a complaint against appellee in circuit court, alleging in substance: appellee is claiming right to possession of certain lands (described in detail), but is in unlawful possession of same; appellee unlawfully refuses to relinquish possession, and; appellant has been damaged in the sum of $500. The prayer was for a Writ of Unlawful Detainer; that she be given possession of said lands, and a judgment for $500.
In answer to above appellee alleged: that on or about November 1, 1966 he made a binding lease agreement with appellant for the years 1967, 1968, and 1969 for $15,000; that appellant accepted his rent notes for said amount, and; that appellee had been renting the land for the past twelve years and that, even if no new lease agreement was made, appellant had failed to give him proper notice of termination.
On May 10, 1967 appellant filed an amendment to her original complaint, alleging: appellee occupied the land for the year ending December 31, 1966 “under an oral one-year contract”; appellee was notified by mail on November 10, 1966 that “all rights of possession” terminated on the above date.
The issues were tried before a jury which found for appellee, and a judgment was so entered.
For a reversal appellant relies on two points which we now discuss.
One. “Appellee’s actions, as a matter of law, did not take an oral lease for three years out of the operation of the statute of frauds.” For reasons, mentioned below we do not agree with appellant.
In the first place, appellant did not plead the statute of frauds as required by many of our decisions. In Smith v. Milam, 195 Ark. 157 (p. 158), 110 S.W. 1062 we said:
“A sufficient answer to this is that the statute of fraud was not pleaded in the lower court and cannot be interjected into the case for the first time on appeal.”
See also Rogers v. Moss, 216 Ark. 838, 227 S.W. 2d 630, and Dunn v. Turner Hardware Company, 166 Ark. 520, 266 S.W. 954. It is also pointed out that appellant asked the court (Inst. #2) to instruct the jury to find in her favor unless it found she did not sign a written agreement for the leasing of her lands”. This Instruction was refused, and we think properly so. There was no contention on the part of appellee that she signed anything. At any rate appellant does not here contend the court erred.
Furthermore, appellee offered testimony which, in substance, shows: he consulted with appellant in October of 1966 about renting the land for three years; that she was agreeable, and instructed him to prepare the rent notes; that he prepared the notes, signed them, and delivered them to appellant; that, relying on the agreement, he prepared ninety acres for cultivation, and; that he never heard anything further from appellant for some three weeks later. These issues of fact were submitted to the jury under appellant’s own requested instruction no. 1 and appellee’s instruction no. 2 which were given by the court.
Two. We also find no merit in this point which reads:
“The question of the good faith and bona fide intentions of the appellee in holding over after the expiration of his lease and after the required notice should have been submitted to the jury.”
So far as we can determine from the record this issue was, in general language, submitted to the jury. Certainly appellant asked for no specific instruction on this point. The trial court did refuse appellant’s requested instruction no. 2 on the ground that the issue had al ready been covered in other instructions. We agree with the trial court.
Affirmed.
Fogleman, J., concurs.
G-eorge Rose Smith, Brown & Byrd, JJ., dissent. | [
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Paul "Ward, Justice.
This appeal challenges a decree of the chancery court approving “ ... a 10% across-the-board assessment increase on all real estate in Dallas County”.
The case was tried on the pleadings and a stipulation of facts which, for brevity and clarity, are summarized below.
On September 30, 1967 certain residents, citizens and taxpayers of said county (referred to here as ap pellants) filed a “Petition”, alleging, in substance: J. O. Oliver is county clerk and secretary of the Dallas County Equalization Board (referred to hereafter as Board); D. C. Ellen, Steve Garlington and Alton Thomas claim to be members of said board (they are appellees here); The clerk has notified appellants that the Board has “made ten percent across the board of assessments all real estate in Dallas County”, but no increase against any improvements or personal property; the said Board members were not selected in the manner required by law, and do not possess the qualifications required by law; said members did not take the oath of office within the time required by law, and failed to keep journal proceedings, and; the court should restrain said members from “extending the illegal and unauthorized assessments”. The prayer was in accord with the last allegation.
The answer by appellees, while quite lengthy, is, in essence, a general denial together with a detailed justification of their appointments and actions and will be mentioned later. Appellees asked that appellants’ complaint be dismissed.
The issues were submitted to the trial court on appellants’ Motion for Summary Judgment, on a stipulation of facts, and on brief submitted by both sides. On December 16, 1967 the court entered a decree denying an injunction as requested by appellants, and holding (a) that the Board is validly constituted and (b) the “10% across-the-board assessments increase ... is proper ... ”
On appeal appellants rely on only one designated Point for a reversal. It reads:
‘ ‘ The chancellor erred in holding that the members of the equalization board of Dallas County, Arkansas, were qualified to serve as members of said equalization board and that such improper selection did not invalidate all acts of the equaliza tion board, specifically a 10% across-the-board increase on the value of real estate in the county. ’ ’
We deem it unnecessary to reply to all the arguments and citations of cases presented on appeal by appellants, because we have concluded the case must be affirmed on other grounds explained below.
It is conceded by appellees that the Board members here involved were not selected, in every detail, as is set forth in Ark Stat. Ann. § 84-702 (Repl. 1960) although they were selected within the purview of the statute.
Soon after July 1, 1967 the Board was notified by the Assessment Coordination Division of the State that the county would lose much needed school funds because of a 17% assessment. At this time two members of the Board resigned and one member’s term had expired in May, so it appeared necessary to fill the two vacancies before August 1, 1967 when, under the statute, the Board was to begin its work. In this emergency situation the vacancies were filled as presently set out.
Steve Garlington, who was, concededly qualified, had been a member previously and was reappointed in May 1967, when his term expired, by the County Judge as provided by the statute.
D. C. Ellen, an elector and owner of real estate, was appointed by the Superintendent of Schools (at the request of the County Judge) when W. B. Barnes was forced to resign from the Board because of poor health. This method did not comply with the statute.
Alton Thomas, an elector who had been a holder of real estate for many years and who still had an interest in real estate, was selected by the Mayor and councilmen of the largest city in the county (at the request of the County Judge) to take the place of Clark Jordan who had resigned for business reasons.
We set out the above details to show that, when the emergency arose, the mentioned officials apparently acted in good faith, and, in doing so, followed the requirements of the statutes as fully as possible under the circumstances.
Under the undisputed facts summarized above we conclude that Garlington, Ellen Thomas were defacto members of the Board, and that their actions were therefore valid. This is in accord with the holdings of this Court in Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279. There we find this statement:
“A person who enters into an office and undertakes the performance of the duties thereof by virtue of an election or appointment, is an officer de facto, though he was ineligible at the time he was elected or appointed, or has subsequently become disabled to hold the office. Indeed, it is settled by a current of authority almost unbroken for over 500 years in England and this country, that ineligibility to hold an office does not prevent the ineligible incumbent, if in possession under color of right and authority, from being an officer de facto with respect to his official acts, in so far as third persons are concerned.”
The Gerlach case also cited McClendon v. State, ex rel, 129 Ark. 286, 195 S.W. 686 as holding “that the qualifications of a de facto alderman could not be inquired into in a collateral proceeding...” The proceeding in this case is, of course, a collateral attack on the rights of appellees to serve on the Board.
Appellants make two other arguments for a reversal, but they must also be rejected. One is that the 10% across-the-board assessment on real estate was not fair and equitable. The other is that the Board did not keep minutes as required by statute. The answer to the first argument is that no proof was offered to show anyone’s property was assessed unfairly, and further more this point was not argued in chief by appellants. The answer to the second argument is that the stipulations provide that all records of the Board “will be made available for inspection by the Chancery Court Judge” upon his request.
Affirmed.
Harris, C. J. and Byrd J., dissent. | [
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PER CURIAM.
This is in the main an action for a declaratory judgment brought by three members of the State Board of Election Commissioners and sixteen citizens, all as representatives of the Republican Party. The defendants are the other members of the State Board of Election Commissioners and sixteen citizens who were named as the third member of the county board of election commissioners in sixteen counties, who are also joined as representatives of the Democratic Party. The complaint as amended asks for a declaratory judgment construing the statutes governing the selection of election judges and clerks. This appeal is from an order of the circuit court finding that the appellants are not entitled to declaratory relief and dismissing their complaint.
At the outset we hold that there is an actual and substantial controversy that should be decided and that falls within our declaratory judgment procedure. Moreover, in election cases we have repeatedly announced decisions in cases that had actually become moot, for the sound reason that controversies about the election laws present issues of public interest that ought to be set at rest. Pirtle v. Dalmasso, 240 Ark. 1063, 403 S.W. 2d 740 (1966), and cases there cited.
Under the statutes the county election commission is composed of a representative of the majority party, a representative of the minority party, and a third member chosen by the State Board of Election Commissioners. Initiated Act 3 of 1948, as amended. The majority party is defined as that party receiving the largest number of votes for the office of Governor in the last general election (ibid.) and is therefore now the Republican Party. Under the statutes it is the duty of the State Board to select as the third member of the county boards persons who will “represent” the majority party, or as we said in Ellis v. Rockefeller, 245 Ark. 53, who will “act on behalf of and . . . work with the majority party in the selection of the election judges and clerks.”
Under the statute the two majority members of the county election commissioners are to select two election judges and one clerk for each polling place, with the minority member selecting one judge and one clerk. Ark. Stat. Ann. § 3-608 (Repl. 1956). It was unquestionably the intention of the lawmakers that the minority party would always be entitled as a matter of right to one judge and one clerk at each polling place.
The petitioners assert that the statutes have been construed to mean, and will be so administered with reference to the coming general election, that the minority party (now the Democratic Party) is entitled to select one judge and one clerk for each precinct and that a majority of the commission may then select the other two judges and one clerk. Hence, if the third member of the commission should see fit to join with the minority party member rather than with the majority party member, the result would be that the minority party would select all the judges and clerks, leaving the majority party with no representation whatever at the polls. That result would leave the majority party in a worse position than it occupied when it was the minority party, for then it was entitled to select one judge and one clerk for each precinct as a matter of right.
We cannot approve that construction of the statute. In our view the legislature contemplated that the majority member of each county commission and the third member selected by the State Board to represent the majority party would ordinarily agree upon the selection of two judges and one clerk for each polling place. In that respect the third member has a duty of good faith. If the third member and the majority-party member (now the Republican member) are unable to agree upon anyone to serve as judges and clerks selected by the majority party, then it is thereby demonstrated that the third member is not qualified to “represent” the majority party as we used that term in Ellis v. Rockefeller, supra. The Republican member of the commission then becomes, in fact, the minority member of the commission and as such we hold that he is entitled to select one judge and one clerk for each precinct. This per curiam order so declares the law.
Reversed.
Harris, C.J., concurs.
Fogleman and Byrd, JJ., dissent. Justice Fogleman ’s written dissent to be filed later.
John A. Fogleman, Justice.
It is to be regretted that our system has been unable to devise a method to insure fair elections and eliminate the constant struggle for control of election processes. Until we devise that system, we must depend on the machinery which has been devised legislatively, through initiative and General Assembly action. The courts are not empowered to provide election machinery or eliminate what may seem to them to he defects in the machinery provided by the agency government most representative of the people, the ultimate sovereign, in whom the power is properly vested. I have supreme confidence in the judicial department of government in its own area and in its competency to deal with judicial questions. I have no confidence in its ability to deal with legislative problems as competently as the proper branch. Certainly, the courts cannot be expected to do a better job in that field than either the General Assembly or the people of the state.
I agree estentially with the dissenting opinion of Mr. Justice Byrd. I cannot help expressing my feeling that the court has acted legislatively. One reading the act in question, would be hard put to find the lang uage stating that the county chairman of each party (the majority and minority, as defined in the act) was entitled to name one judge and one clerk of election in each precinct. The act was drawn to protect the minority party, not the majority.
There is no need to elaborate on the pleadings in this appeal. Actually, No. 5-4834, Rockefeller v. Purcell, 245 Ark. 522, 434 S.W. 2d 65, and this appeal were from two different judgments in the same case. The judgment from which this appeal is taken denied that part of appellants’ petition praying a declaratory judgment that, in event of disagreement between any third member of any county board of election commissioners and any chairman of the Republican Central Committée “in that county” in the naming of judges and clerks, the Chairman of the Republican Committee should be permitted to name two judges and one clerk in each precinct without “interference” from the third member or the Chairman of the Democratic Committee. It is alleged and admitted that the Attorney General of Arkansas has rendered an opinion that in the event of disagreement between the Republican chairman and the third member of a county board, then the disagreement would be resolved by appointment of these judges and this clerk by vote of a majority of the board. I do not see how the statute can be read otherwise. The portion of the Attorney General’s opinion overlooked by the majority in its per curiam opinion states that the act clearly requires that in such event, the majority of the county board must name a member of the majority party to fill the vacancy or vacancies. Under his construction, there would be two Republican judges and one Republican clerk in each precinct. It is difficult for me to see how the majority party is thereby discriminated against.
Actually, this is an appeal from the opinion of the Attorney General in the guise of an action for a declaratory judgment. There is not even a remote suggestion of a justiciable controversy.
The declaratory judgment procedure “does not license litigants to fish in judicial ponds for legal advice.” Lide v. Mears, 231 N.C. 111, 56 S.E. 2d 404 (1949). What I have had to say about the applicability and availability of declaratory judgment procedure in Rockefeller v. Purcell, No. 5-4834, 245 Ark. 522, 434 S.W. 2d 65, is also relevant here, for the most part. This is an even more obvious application for an advisory opinion than was involved in that case, however.
1 submit that there is no party petitioner who has a £ £ legally protectable interest. ’ ’ I further submit that there is no justiciable controversy in the sense of ripeness for judicial determination. How could the trial court have written a judgment granting specific relief of a conclusive nature to any of the appellants directing what the parties may or may not do?
This leads to another important defect in the proceedings which justified the action of the circuit judge in denying a declaratory judgment. The defect of parties appears on both sides of the jurisdictional fence. Not a single petitioner is a member of a county board of election commissioners, nor do any of them show a legal right to act as such. Equally as fatal to the action here is the fact that not a single election commissioner by virtue of his position as Chairman of the Democratic party of his county is a party to the action in any capacity. The rights and duties of these 75 officials are as much involved in this proceeding as those of the other two county members. Not only is there that defect, but the position of appellant petitioners for declaratory relief meets itself coming back when they seek this relief. They ask that the only members of any county election commission made parties to the proceedings be declared ineligible. If declared ineligible as a result of this court’s decision in No. 5-4834, then not only will there be no county board of election commissioners before the court, there might not be a single member of any county board.
The action of the trial court was justified because the defect of parties was jurisdictional and required dismissal of the petition.
The requirements of the declaratory judgment act are clear. The pertinent part reads:
“When the declaratory relief is sougnt, an persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” [Ark. Stat. Ann. § 34-2510 (Repl. 1962)].
While we have no decisions in this state particularly in point, authorities from other jurisdictions having adopted this act are either controlling or highly persuasive. They differ in effect only slightly. By the great weight of authority, the defect of parties is fatal to the action.
I have already demonstrated the basis of my belief that none of the appellants-petitioners had any “legally protectable interest” in my dissenting opinion in Rockefeller v. Purcell, No. 5-4834 (November 1, 1968). I also set out there authorities supporting my positions that (1) those not parties to the action are not bound and that their rights are not concluded and (2) that a petition for declaratory relief should not be granted unless the court could grant specific relief through a judgment of conclusive character directing, not suggesting what the parties may or may not do. There remains for treatment the defect of parties defendant (or respondent) .
Before declaratory relief is granted, all interested parties should be before the court. School Dist. No. 1 v. School Dist. of Lansing, 331 Mich. 523, 50 N.W. 2d 150 (1951). The statutory requirement that all persons having or claiming any interest which would be affected by the declaration be made parties controls over any general statutory provisions as to waiver of objections as to defect of parties when not raised by demurrer or answer. Redick v. Peony Park, 151 Neb. 442, 37 N.W. 2d 801 (1949). The plaintiff, or petitioner, has the duty of joining, as parties, all persons who have or claim any interest which would be affected by the declaration. Redick v. Peony Park, supra. A petition does not state a cause of action for declaratory relief when it fails to name as a respondent (or defendant) an interested and indispensable party. Cook v. Sikes, 210 Ga. 722, 82 S.3D. 2d 641 (1954).
Where persons whose rights are affected are not made parties to the proceedings, the court should decline to declare the rights of those who are parties. Jefferson County v. Jefferson County Fiscal Court, 259 Ky. 661, 83 SW. 2d 16 (1935).
The presence of all necessary parties is jurisdictional and cannot be waived. Redick v. Peony Park, supra. In order to be entitled to relief by declaratory judgment, the petitioner must prove a legal right capable of, and in need of, protection from claims, demands or objections emanating from a source competent legally to put the legal interest or right in jeopardy. State v. Haveland, 223 Minn. 89, 25 N.W. 2d 474 (1946). The opposition in the case must come from a source competent legally to jeopardize the petitioner’s right. Miller v. Stolinski, 149 Neb. 679, 32 N.W. 2d 199 (1948).
The indispensable and necessary parties in any declaratory judgment action are not only those whose rights would be affected thereby, but also those whose legal interests in the controversy are conflicting with those of the petitioner. People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956). A petition that fails to name as a party defendant (or respondent) anyone whose rights or duties are affected by statutes to be construed in the action should be dismissed for defect of parties. Axton v. Goodman, 205 Ky. 382, 265 S.W. 806 (1924) (Ky. C.A. 1924); Worden v. City of Louisville, 279 Ky. 712, 131 S.W. 2d 923 (1939). It should be dismissed if it fails to join all parties whose interests and rights are affected. Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686. If jurisdiction is not obtained over indispensable and necessary parties, the action' should be dismissed. People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956).
Illustrative of the cases cited above are Axton v. Goodman, supra, and Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686.
In the Axton case, candidates of the Progressive party for presidential elector brought suit under the Declaratory Judgment Act against the Chairman of the State Board of Election Commissioners and the Chairman of a county board of election commissioners, to obtain a declaration of their rights to appoint challengers and inspectors at the general election. The Attorney General of the State had rendered a written opinion to the Chairman of the Progressive party that they were not entitled to do so. The court said:
# * No one of the defendants has any duties to perform with respect to the appointment of challengers or inspectors, or their admission to, or exclusion from, the booths.”
The petition was said to have been properly dismissed because no one whose rights or duties were affected by the statute to be construed was made an adverse party in the proceeding.
In Coleman v. Henry, 184 Tenn. 550, 201 S.W. 2d 686, the petition sought a declaration construing a statute requiring a financial statement of campaign expenditures to be filed by candidates or their campaign managers. The defendant was the campaign manager for the successful Democratic candidates. None of the candidates nor the public officials to whom the report would be made were made parties to the suit. Their joinder was held to be necessary and indispensable and their non-joinder fatal on the question of justiciable controversy in a suit for declaratory judgment. The dismissal of the petition on demurrer was sustained.
I sincerely trust that the language in the majority’s per curiam opinion as to election controversies can be used to prevent it from opening the floodgate to applications to the courts for advisory opinions. I still subscribe to the belief that judicial controversies are best decided when pounded out on the anvil of advocacy in proceedings between parties whose interests are vitally real, not academic. I further believe that advocacy cannot make its full contribution to our judicial system unless it is invoked from the perspective of the parties really involved. In this case they would be the county election commissioners.
The old adage, “Haste makes waste,” states a fact of judicial, as well as everyday, life.
I would affirm the judgment of the circuit court.
Conley Byrd, Justice.
I disagree with the majority because it is contrary to Ark. Stat. Ann. § 3-608 (Repl. 1956), and because the premise stated in the majority opinion is not sustained by the record or the contention of the parties.
The statute provides:
“It shall be the duty of the County Board of Election Commissioners not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in the respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk in each precinct shall be chosen and appointed by two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party. Provided further that if there are no registered or known members of the minority party m any precinct or precincts within a county the minority party member of the County Board of Election Commissioners is hereby prohibited from naming any person to represent such minority party as a judge or clerk in any such precinct or precincts who is a member of the majority party, and in such event, the County Board of Election Commissioners shall by a majority vote name the judge and the clerk allotted the minority party for any such precinct or precincts ...”
“In the event the majority or minority representative on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerhs for each voting precinct, as authorised hereinbefore then the County Board of Election Commissioners by majority vote may fill such vacancy, provided, that in no event shall all of the jiidges or both of the clerics at any voting precinct be members of the same political party unless there are no members of the minority party registered in said precinct.” (Emphasis mine).
The appellees concede that when a deadlock occurs between the County Chairman of the majority party and the appointed third member, it is the duty of the County Board of Election Commissioners to select by majority vote “known” members of the majority party to serve as such judges and clerk. However, appellants in their brief contend that this is not enough, but that the se lection should he those members of the party selected by the Chairman of the majority party. The majority opinion makes two conclusions with respect thereto:
(1) That when the entire County Board makes a selection of two members of the majority party as judges and one member as clerk, the result is that the minority party selects all the judges and clerks leaving the majority party with no representation whatever at the polls; and (2) that when the third member appointed by the State Board of Election Commissioners is unable to agree with the County Chairman of the majority party as to which members of the majority party are to serve as judges and clerks, then such third member has demonstrated that he is not qualified to “represent” the majority party as we used that term in Ellis v. Rockefeller, 245 Ark. 53.
Apparently the majority does not agree whole heartedly with appellants contention. The conclusions in the majority opinion are not based on logic. As to the first conclusion, I can think of nothing more patently illogical than the statement that, for purpose of insuring a fair election, the Republican Party is without representation at the polls when two “known” Republicans are serving as judges and one “known” Republican is serving as a clerk.
The fallacy of the second conclusion can be best demonstrated by reference to the recent litigation in this court in Childers v. Roberts, cause #4830, (disposed of by per curiam order on October 21, 1968). Included in the record therein are certified copies of the minutes of the Republican State Convention showing a controversy between Ralph Childers and John Oliger as to which one had been duly selected County Chairman by the township committeemen of Conway County. Until I read the majority opinion, I would not have believed that anyone would say that the third member of the Conway County Election Commission was not properly dis charging his duty by insisting* that the clerk in some or all of the precincts be a “known” Republican selected from the faction supporting Mr. Oliger. The composition of the State Election Board is now and will continue to be such, by the very nature of the selection process, that it should be given some leeway in the selection of the third member for the purpose of insuring fair elections. It is not inconceivable that a situation could develop in a county of such degrading proportions that the State Board might purposely wish to select a third member of the County Board for the very purpose of preventing manipulation of the ballot through the selection of judges and clerks.
If one will again refer to the statute, supra, particularly the italicized portion thereof, he will find that the drafters of the statute anticipated that an impasse could be reached in the method provided for the selection of judges and clerks and that they provided a remedy to prevent the impasse from holding up or interrupting the State’s election machinery. Furthermore, in Initiated Act No. 3 of 1948, § 1, Ai*k. Stat. Ann. § 3-606 (Repl. 1956), it provided:
“For the purpose of this Act (§§ 3-606 — 3-611), the majority party shall be construed to be that political party polling, in the State of Arkansas, the greatest number of votes for Governor in the last preceding general election and the minority party shall be construed to be that political party polling, in the State of Arkansas, the second greatest number of votes for Governor in the last preceding general election.”
How this court can hold that the political party receiving the greatest number of votes for Governor in the last preceding general election can become the “minority party” within the meaning of Ark. Stat. § 3-606 and Í 3-608 without rewriting the statutes to fit a particular exigency is beyond my comprehension.
For these reasons, I respectfully dissent.
See, also, People v. Baker, 133 Colo. 398, 297 P. 2d 273 (1956); Hudson v. Newell, 172 F. 2d 848 (5th Cir. 1949). | [
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George Rose Smith, Justice.
This motion by one of the appellees, Maryland Casualty Company, to dismiss the appeal of another appellee, Housing Authority of Pike County, requires us to construe the term “cross appeal” as it was used in a 1957 amendment to Act 555 of 1953, reading in part as follows:
“When an appeal is permitted by law from the Circuit, Chancery or Probate Court, any party to the action may appeal from a judgment or decree, by filing a notice of appeal within thirty (30) days from the entry of the judgment or decree appealed from. Any other party to the action may cross appeal from a judgment or decree by filing with the court in which the ease is tried a notice of cross appeal within ten (10) days after the notice of appeal is served on such party.” Ark. Stat. Ann. § 27-2106.1 (Repl. 1962).
The question is whether a notice of appeal filed by the Housing Authority thirty-one days after the entry of the judgment can be sustained as falling within the ten-day extension of time allowed by the statute for cross appeals.
The facts are not in dispute. By a judgment entered on January 2, 1968, Piling & Repairs, Inc., was given a $3,000 judgment against Con-Ark Builders, Inc.; Con-Ark was given a $8,023 judgment against Maryland Casualty Company; and Maryland Casualty was given judgment over against Stanley Brown, R. W. Laird, and the Housing Authority for the amount of Con-Ark’s judgment.
On January 31 Brown and Laird filed a notice of appeal, designating Piling & Repairs, Con-Ark, and Maryland Casualty as appellees. On February 1, the last day of the 30-day period allowed for filing notice of appeal, Con-Ark filed such a notice, designating Piling & Repairs as the appellee. The next day, February 2, the Housing Authority filed a notice of appeal designating Piling & Repairs, Con-Ark, and Maryland Casualty as appellees. On February 10 Maryland Casualty filed a notice of cross appeal as against Con-Ark.
Maryland Casualty’s motion to dismiss is based upon the fact that the Housing Authority was not named as an appellee in the first two notices of appeal. Hence, it is argued, the Housing Authority was really a direct appellant and should therefore have filed its notice of direct appeal within thirty days after the entry of the judgment.
The term “cross appeal” has appeared in our statutes ever since the enactment of the Civil Code in 1869, but it has never been entirely free from ambiguity. The provision in the Civil Code seemed to be unmistakably clear:
“The appellee, at any time before trial, by an entry upon the records of the Supreme Court, may pray and obtain a cross-appeal against the appellant, or any co-appellee, in whose favor any question is decided prejudicial to such party.” Civil Code, § 878; Pope’s Digest (1937), § 2772; Ark. Stat Ann. § 27-2137 (R-epl. 1962), where the compiler rightly states that this Civil Code section has been superseded.
The Code stated that an appellee might obtain a cross appeal against “any co-appellee” in whose favor any question prejudicial to the cross appellant had been decided. We construed the section narrowly, however, by holding that “any co-appellee” did not mean every appellee, but only those who were parties to a controversy with the original appellant. In reaching that conclusion we stated that the question was a difficult one. Shapara v. Mixon, 122 Ark. 530, 184 S.W. 399 (1916), followed in Myers v. Linebarger, 144 Ark. 389, 222 S.W. 720 (1920). We ourselves became confused, however, because we said in Corey v. Mercantile Ins. Co., 205 Ark. 546, 169 S.W. 2d 655 (1943): “An appeal by an appellee against a party who has not appealed is in effect an original appeal and must be prayed within six months from the rendition of the judgment.” Of course that statement was inaccurate, because an appellee had a limited right of cross appeal against coappellees, regardless of whether they had themselves appealed.
The Civil Code section was repealed by Act 555 of 1953, which originally made no reference to cross appeals and merely provided in § 2 that “any party” might appeal by filing a notice of appeal within thirty days after the entry of the judgment. In construing the original act we held in 1954 that all notices of appeal, whether direct or cross, had to be filed within the thirty days. General Box Co. v. Scurlock, 223 Ark. 967, 271 S.W. 2d 40. In that opinion we pointed out that a party who did not want to appeal unless another party decided to do so might protect himself against the possibility of a last-minute adverse appeal by filing a precautionary notice of appeal himself.
The legislature evidently did not consider the filing of such a precautionary notice of appeal to be an adequate solution to the problem, because in 1957 it amended § 2 of Act 555 to read as it does now. After providing that any party may appeal within thirty days after the entry of the judgment the amended statute goes on to say: “Any other party to the action [our italics] may cross appeal ... by filing ... a notice of cross appeal within ten (10) days after the notice of appeal is served on such party.”
Maryland Casualty argues in effect that the 1957 reference to a cross appeal should be limited just as it was a century ago in the Civil Code, so that the Housing-Authority should be treated as a direct appellant rather than as a cross appellant.
This argument, in our opinion, misconstrues the intent of the 1957 amendment. The statute explicitly declares that “ [a]ny other party to the action” may take a cross appeal. If the right of cross appeal is limited to the somewhat nebulous meaning that it had in the Civil Code, then the reference to any other party is much too broad, because in most instances no party would meet the narrow qualifications of a cross appellant, On the other hand, if the 1957 reference to a cross appeal simply means a second or subsequent appeal, then the phrase “any other party” carries its ordinary and natural meaning.
We are convinced that the legislature, in amending Act 555, meant to prevent possible injustices stemming from last-minute appeals. Suppose, for example, that a plaintiff recovers a $5,000 personal injury judgment against John Doe and Richard Roe, both solvent, and the jury apportions the fault in the ratio of 99% to Doe and 1% to Roe. Absent an appeal, Roe expects to pay only $50 of the recovery. But if Doe should file a notice of appeal at the last minute and obtain a reversal and dismissal as to him, Roe would be bound to pay the entire $5,000. Under the old conception of a cross appeal Roe could protect himself only by filing a precautionary notice of appeal, as we suggested in the Sctirlock case. We think the statute was amended to provide for that very contingency. Consequently we hold that the effect of the 1957 legislation was to extend the time for any second or subsequent appeal, whether direct or cross, for a period of ten days after the service of notice of the first appeal. We do not imply that the ten-day provision would ever shorten a litigant’s time for filing notice of appeal to a period less than the basic thirty days allowed by the statute.
The motion to dismiss the Housing Authority’s appeal is denied. | [
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MOTION FOR RULE ON CLERK
PER CURIAM.
liAppellant Jennifer Emmert, by and through her attorney, Deborah Sailings, has filed a motion for rule on clerk. On May 21, 2009, the circuit court entered an order terminating all parental rights between Jennifer Emmert and Gary Emmert and Dustin Norem and their children, A.N., J.N., K.E., and S.E. On June 9, 2009, the circuit court entered an order terminating all parental rights between Jennifer Emmert and Gary Emmert and their child, K.E. Jennifer Emmert timely filed her notice of appeal on June 9, 2009.
Pursuant to Arkansas Supreme Court Rule 6 — 9(d) (2009), in dependency-neglect cases, the record on appeal shall be filed with the Clerk of the Supreme Court within seventy days of the filing of the notice of appeal. Here, the record was not tendered until August 19, 2009, one day after it was due.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we stated:
[Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself.
There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
Emmert’s counsel admits fault within the motion. Pursuant to McDonald v. State, we grant the motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted. | [
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MOTION FOR RULE ON CLERK.
PER CURIAM.
[[Appellant Van Burén County Title Co., by and through its attorney, Jerry Patterson, seeks a motion for rule on clerk. The Van Burén County Circuit Court held a hearing in this case on November 26, 2008, and rendered a ruling on May 29, 2009. In its notice of appeal, Van Burén Title Co. mistakenly stated that it was appealing from the “order filed and entered in this case on the 26th day of November, 2008,” the date of the hearing. However, while the May 29 order referenced the November 26 hearing, it is clear that the only appealable order entered in this ease was the May 29, 2009 order.
kThe notice of appeal, filed on June 8, 2009, was clearly timely with regard to the May 29, 2009 order appealed from, and the record was timely lodged within ninety days of the June 8 notice of appeal. Nonetheless, this court’s clerk’s office refused to accept the record due to the apparent untimeliness of the June 8, 2009 notice of appeal that purported to appeal from a November 26, 2008 order.
We grant the motion for rule on clerk. It is clear from the record that there is no other judgment from which an appeal could have been taken. Although the circuit court rendered a ruling from the bench at the conclusion of the November 26, 2008, hearing, Van Burén County Title Co. could not have taken an appeal from this oral ruling. See Ark. R. Civ. P. 58 (a judgment or decree is effectively only when so set forth and entered as provided in Administrative Order No. 2). Supreme Court Administrative Order No. 2(b)(2) provides as follows:
The clerk shall denote the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word “filed.” A judgment, decree or order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book.
See also Farm Bur. Mut. Ins. Co. of Ark. v. Sudrick, 49 Ark.App. 84, 896 S.W.2d 452 (1995) (where notice of appeal recited that appeal was taken from an order entered on August 4, 1998, but no such order existed, and it was apparent that appellant intended to appeal from a later judgment, the failure to designate the later judgment was not fatal to the appeal).
Accordingly, because there is only one appealable order in the record, and the notice of appeal was timely relative to that order (and would have been correct but for the | ¡¡scrivener's error), we grant the appellant’s motion for rule on clerk and direct our clerk’s office to accept the record in this appeal. | [
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Opinion of the Court by Justice SCHRODER.
The issue in this appeal is whether a district court acted outside the scope of its jurisdiction when it issued an order requiring a guardian to provide all financial records related to a court-ordered accounting and to make restitution to a guardianship account. Because the district court is granted exclusive jurisdiction to manage and settle guardianship accounts as provided under KRS 387.520, the District Count was acting soundly within its jurisdiction and the order entered by the Court of Appeals requiring the circuit court to enter a writ of prohibition was improper.
FACTS
As the Appellee in this matter has failed to file a brief, the facts are undisputed. Bruce and Paula Bryant were involved in a motorcycle accident on November 21, 2004, wherein Bruce was fatally injured and Paula suffered a brain injury due to hypoxia. The Appellee, Justin Bryant, the son of Bruce and Paula Bryant, was named administrator of Bruce’s estate and Paula’s guardian. Justin spoke to an attorney in Indianapolis named Rod Taylor, as well as a second attorney in Florida, about pursuing a claim against the driver who had caused the motor vehicle accident, and the two attorneys agreed to work together on the claim. Attorney Taylor also advised Justin to obtain local counsel in Kentucky, Charles Friedman. It is undisputed that in these capacities, Justin was able to collect $452,869.01.
Although Justin collected over $400,000.00 in his separate capacities as administrator of his father’s estate and guardian of his mother, Attorney Friedman did not advise him that he was required to open two separate bank accounts. As a result, he deposited the funds — which he had accumulated on behalf of both his parents separately — into one account in the name of the Estate of Paula J. Bryant, comingling the assets of the Estate of Bruce Bryant with the assets of the Estate of Paula Bryant. Justin used the money for a variety of expenses which he claims were all for the benefit of his mother. One such expenditure was a payment for Friedman’s legal fees. Justin and Friedman argued before the lower courts that Friedman performed services entirely for Paula’s benefit.
On April 6, 2006, Paula’s parents filed a motion to have Justin removed as her guardian, alleging that, among other things, Justin had never made an accounting or filed a financial report after his appointment as guardian. The district court ordered Justin to provide a full accounting of the expenditures he made from his mother’s account. On May 1, 2006, the district court entertained the motion made by Paula’s parents to remove Justin as guardian. By order dated May 4, 2006, the district court appointed GuardiaCare to serve as Paula’s guardian and also ordered Justin to provide a final accounting.
Justin filed an accounting on May 31, 2006, which included various bank statements (but no vouchers or receipts), along with a statement that it be accepted as the “Final Report as Guardian or Conservator, and that I and my surety be discharged.” The Jefferson County Attorney and Paula’s Guardian ad litem objected to the accounting on the grounds that it did not include any explanation of the expenditures as required by KRS 395.610. When Justin failed to respond to this objection and the district court could not locate his whereabouts, the Commonwealth filed a motion for contempt dated July 21, 2006. The Commonwealth also filed a motion for the return of attorney’s fees paid to Friedman in the amount of $25,323.00.
On December 15, 2006, after a series of hearings, orders for a more complete accounting, and motions to hold Justin in contempt, the district court ordered Justin to repay $58,152.19 to Paula’s guardianship account. The court later held Justin in contempt for failure to comply with this order and for failure to comply with an order that he provide a complete accounting. On March 5, 2007, the court ordered Friedman to return $25,750 in legal fees to Paula’s account.
Following a contempt hearing, the district court issued another order on June 11, 2007. This order required Justin to repay $8,191.74 in restitution to Paula’s account and ruled Justin and Friedman jointly and severally liable to repay the $25,750 in restitution to Paula’s account previously ordered.
Justin and Friedman appealed the district court’s orders to the circuit court, but the appeal was dismissed for lack of standing. Justin then petitioned the Jefferson Circuit Court for a writ prohibiting District Judge Prather from enforcing his orders of December 15, 2006, and June 11, 2007. Friedman petitioned the circuit court to prohibit the district judge from enforcing the orders of March 5, 2007, and June 11, 2007. On appeal, Justin and Friedman argued Judge Prather exceeded the jurisdiction of the district court in ordering them to pay restitution. The circuit court denied the petition because “Judge Prather’s orders of December 15, 2006 and March 5, 2007, were valid exercises of both his contempt powers and powers under Kentucky Revised Statute (KRS) 387.520.”
Justin alone filed an appeal with the Court of Appeals, arguing that the district court was without subject matter jurisdiction to order restitution and that, without the issuance of a writ of prohibition, he had no adequate remedy by appeal. On March 19, 2010, the Court of Appeals reversed the Jefferson Circuit Court and remanded the case back for entry of a writ of prohibition, opining that the district court lacked jurisdiction because the charge was one of mismanagement of funds and beyond the scope of the court’s powers under KRS 24A.120. This Court granted discretionary review.
ANALYSIS
A writ of prohibition is an extraordinary remedy, available only in two instances: 1) when a “lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through an application to an intermediate court; or 2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice or irreparable injury will result.” Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 456-57 (Ky.2009) (quoting Hoskins v. Mancie, 150 S.W.3d 1, 10 (Ky.2004)). The standard of review to be applied when reviewing a writ of prohibition depends on the class or category of writ. Grange Mut. Ins. Co. v. Trade, 151 S.W.3d 803, 810 (Ky.2004). When the lower court is alleged to be acting outside its jurisdiction, as alleged in the present case, the proper standard is de novo review because jurisdiction is generally only a question of law. Id.
By virtue of section 113 of the Kentucky Constitution, district courts are tribunals of limited jurisdiction and are restricted to those matters provided for by the General Assembly. Ky. Const. § 113(6). Under KRS 24A.020, the General Assembly provided that the district courts are deemed to have exclusive jurisdiction over any matter when jurisdiction is “granted to District Court by statute ... unless the statute specifically states that the jurisdiction shall be concurrent.”
Turning to the issues presented in the present case, two statutes expressly confer jurisdiction on the district courts in matters involving guardianships and probate. KRS 387.520 was enacted to confer exclusive jurisdiction in the district courts in enumerated guardianship proceedings and provides, in pertinent part, that “[t]he District Courts shall have exclusive jurisdiction over all proceedings involving a determination of partial disability or disability, the modification of orders, the appointment and removal of guardians and conservators, and the management and settlement of their accounts.” (Emphasis added). Thus, the statute explicitly and unambiguously confers exclusive jurisdiction to the district courts for the management and settlement of guardianship accounts. In addition, KRS 24A.120 was enacted to confer exclusive jurisdiction in the district courts in the following probate proceedings:
(2) Matters involving probate, except matters contested in an adversary proceeding. Such adversary proceeding shall be filed in Circuit Court in accordance with the Kentucky Rules of Civil Procedure and shall not be considered an appeal; and
(3) Matters not provided for by statute to be commenced in Circuit Court shall be deemed to be nonadversarial within the meaning of subsection (2) of this section and therefore are within the jurisdiction of the District Court.
Thus, in both guardianship and in probate proceedings the district court has exclusive jurisdiction to oversee the management and settlement of accounts. See also Privett v. Clendenin, 52 S.W.3d 530, 531-32 (Ky.2001); Maratty v. Pruitt, 334 S.W.3d 107 (Ky.App.2011). In holding that the district court exceeded its jurisdiction once “mismanagement” of funds was alleged, the Court of Appeals relied chiefly on a decision by the Court of Appeals in Lee v. Potter, 598 S.W.2d 465 (Ky.App.1980).
Reliance on Lee in this case is misguided. Lee, a decision rendered by the Court of Appeals, involved the interpretation of a different statute, KRS 387.210, which was repealed in 1982. 598 S.W.2d at 468. That statute granted the District Court exclusive jurisdiction of the “appointment and accounting of committees,” however, since July 1, 1982, it has been replaced by KRS 387.520. In contrast to the prior statute, KRS 387.520 now provides the district courts with exclusive jurisdiction over all guardianship proceedings, including “the appointment and removal of guardians and conservators, and the management and settlement of their accounts.” (Emphasis added).
As there is no provision under KRS 387.520 for concurrent jurisdiction with the circuit court, the district courts have exclusive subject-matter jurisdiction over the management and settlement of guardianship accounts, even if such an accounting would be adversarial in nature under KRS 24A.120(2). See, e.g., Privett v. Clendenin, 52 S.W.3d 530 (Ky.2001) (Where district courts are granted exclu sive jurisdiction by statute under the Uniform Transfers to Minors Act (UTMA) to handle accounting claims, they have the authority to decide these claims even though the amounts involved exceed the jurisdictional limitation of $4,000 under KRS 24A.120(1)); Kampschaefer v. Commonwealth ex rel. Kampschaefer, 746 S.W.2d 567, 568 (Ky.App.1988) (District courts may assert jurisdiction over URE-SA action regardless of the amount of ar-rearages.).
“An ‘accounting’ is defined as an adjustment of the accounts of the parties and a rendering of a judgment for the balance ascertained to be due.” 1 Am.Jur.2d, Accounts and Accounting § 52. In Privett, this Court construed the authority of the district court to order and render an accounting under KRS 385.192(1) (the UTMA), and explained that a statute granting district courts the authority to settle accounts “contains an implied grant of authority which permits a trial court to impose a wide variety of remedies ... [including] allowing the trial court to require a custodian to provide a statement of the account, [and] ... enabling the court to render a judgment should the statement indicate that the account had been improperly maintained.” 52 S.W.3d at 532 (quoting Binder v. Sartore, 774 P.2d 1383, 1389 (Colo.1989)).
For the foregoing reasons, the Court of Appeals erred in opining that the district court lacked jurisdiction. Accordingly, we reverse the opinion of the Court of Appeals, vacate the order requiring the circuit court to enter a writ of prohibition, and remand for proceedings consistent with this opinion.
All sitting. All concur.
. Although Justin did not file a brief on the merits in the appeal to this Court, in his brief filed at the Court of Appeals, Justin similarly relied on Lee in addition to this Court’s holding in Priestley v. Priestley, 949 S.W.2d 594 (Ky.1997).
. Moreover, in Lee, the Court of Appeals did not address the exception under KRS 24A. 120(3), that "[m]atters not provided for by statute to be commenced in Circuit Court shall be deemed to be nonadversarial within the meaning of [the district court’s probate jurisdiction] and therefore are within the jurisdiction of the District Court.” (Emphasis added).
.Justin was ordered to render an accounting in his capacity as the guardian of his mother, and not as administrator of his father’s estate. Therefore, the provision under KRS 24A. 120(3), deeming probate matters nonad-versarial and within the district court’s jurisdiction if they are "not provided for by statute to be commenced in Circuit Court,” is not applicable. | [
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DONALD L. CORBIN, Justice.
|,Appellant Alex Blueford brings this interlocutory appeal from the order of the Pulaski County Circuit Court denying his motions to prevent his retrial on a pending capital-murder charge because of double-jeopardy protections. On appeal, Blueford asserts that jeopardy attached and prevents his retrial because the jury determined during his trial that he was not guilty of capital murder and its lesser-included offense of first-degree murder. We find no error and affirm.
The record reflects that on July 15, 2008, Appellant was charged with capital murder in violation of Ark. Code Ann. § 5-10-101(a)(9)(A) (Repl.2006) based on the State’s allegation that Blueford, acting under circumstances manifesting an extreme indifference to the value of human life, caused the death of Matthew McFadden, Jr., a person fourteen years of age or younger. Appellant was initially tried in August 2009. Following the presentation of evidence, the circuit court instructed the jury on the pertinent definitions of capital murder, |2first-degree murder, manslaughter, and negligent homicide. The circuit court also gave the transitional instruction, AMI Crim.2d 302, to guide the jury’s transition from one offense to the next. The transitional instruction provided in relevant part that “if you have a reasonable doubt of the defendant’s guilt on the charge[d offense or lesser included offense just considered], you will then consider the charge of [the next lesser included offense].”
During deliberations, the jury submitted a note to the circuit court stating that “a juror would like to know what happens if we cannot agree on a charge at all.” The jury was returned to the court room and the circuit court gave an “Allen instruction,” requesting that they retire for further deliberations in an attempt to reach a verdict. The jury sent out a second note indicating that they remained deadlocked. When the jurors returned to the courtroom, the following colloquy took place between the circuit court and the jury forewoman:
The Court: All right, Court’s back in session. Madam foreman, the Court has a note from the jury stating, (as read), “The jury cannot agree on any one charge in this case.”
Are you telling this Court that you’re hopelessly deadlocked on every charge?
JuROR Number One: I’m not sure I understand what you mean, sir. To consider—
The Court: Well, you’re obviously in your agreement — any—any charge, conviction of any charge, or even a not guilty finding has to be unanimous. All 12 have to agree.
Juror Number One: Right.
[3The Court: My question to you is, are you so deadlocked that you’re not going to be able to reach an agreement no matter how long we stay here tonight?
Juror Number One: I would say that statement would be true, yes.
The court: Well, that’s not my statement, that’s a question.
Juror Number One: Oh, the answer is yes, we are deadlocked.
The Court: All right, hopelessly?
Juror Number One: I would say so, sir, yes.
The Court: All right. If you have your numbers together, and I don’t want names, but if you have your numbers I would like to know what your count was on capital murder.
Juror Number One: That was unanimous against that. No.
The Court: Okay, on murder in the first degree?
Juror Number One: That was unanimous against that.
The Court: Okay. Manslaughter?
Juror Number One: Nine for, three against.
The Court: Okay. And negligent homicide?
Juror Number One: We did not vote on that, sir.
The court: Did not vote on that.
Juror Number One: No, sir. We couldn’t get past the manslaughter. Were we supposed to go past that? I thought we were supposed to go one at a time.
The court then stated that it appeared the jury had not completed its deliberations, and the court again requested the jury to deliberate further. While the jury resumed deliberations, [ 4counsel for Appellant requested that the court submit verdict forms to be completed by the jurors on the counts that they had decided upon. The State objected, noting that the jury had resumed its deliberations and had not yet made any findings. The circuit court denied Appellant’s request. A short time later, when the jury again indicated that it had not reached a verdict, the circuit court declared a mistrial. Neither the State nor Appellant objected to the declaration of a mistrial. Appellant’s trial was then rescheduled for March 2010.
Prior to the time scheduled for retrial, Appellant filed several motions in circuit court, arguing that the Fifth Amendment’s double-jeopardy provision, as well as Arkansas’s double-jeopardy statutes, barred his retrial on the capital-murder charge and the lesser-included offense of first-degree murder. In support of his motions, he argued that the jury forewoman’s announcement in open court that the jury had found him not guilty on those two charges amounted to an acquittal, such that he could not again be tried on those charges. The circuit court entered an order on February 26, 2010, denying Appellant’s motions. In so ruling, the circuit court stated as follows:
This Court finds, after review of the transcript of Defendant Blueford’s first trial, that the jury foreperson was explicit that the jury was unanimous in voting against finding Defendant Blue-ford guilty of capital murder and first degree murder. However, there were no “findings” or “verdicts” as intended by the law. The jury was unable to complete its deliberations and this Court had to declare a mistrial.
The sole issue on appeal is whether the circuit court erred in finding that jeopardy had not attached, thus, allowing the State to retry Appellant on the charges of capital murder and first-degree murder. This court reviews de novo a circuit court’s denial of a motion to dismiss Uon double-jeopardy grounds. Koster v. State, 874 Ark. 74, 286 S.W.3d 152 (2008). When the analysis presents itself as a mixed question of law and fact, the factual determinations made by the circuit court are given due deference and are not reversed unless clearly erroneous. Id. However, the ultimate decision by the circuit court that the defendant’s protection against double jeopardy was not violated is reviewed de novo, with no deference given to the circuit court’s determination. Id. Finally, we note that a double-jeopardy claim may be raised by interlocutory appeal because if a defendant is illegally tried a second time, the right would have been forfeited. See Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).
Appellant argues that we are called upon to decide the implications of Arkansas’s transitional jury instruction, which is given in criminal cases where the jury is allowed to consider lesser-included offenses. According to Appellant, because the jury was instructed that it could not consider his guilt on a lesser-included offense until it made a determination on the greater offense and the jury forewoman then announced in open court that the jury had found him not guilty of capital murder and first-degree murder, he was acquitted on those two charges. Appellant further argues that entry of a formal judgment is not essential, as the jury’s finding of not guilty is sufficient to bar further prosecution on those two charges. Finally, Appellant asserts that the jury determinations were final because they were not given any type of step-back instruction that would have allowed the jury to resume deliberations on the capital-murder or first-degree murder charges.
| fiThe State counters that where a jury is discharged before completion of a case, a defendant may invoke his right against double jeopardy, except in cases of overruling necessity. The State further asserts that where a defendant consents to a mistrial, there is no requirement of demonstrating overruling necessity. Thus, according to the State, Appellant, who impliedly agreed to the mistrial by failing to object to the granting of the mistrial, may be tried again. Moreover, the State asserts that the deadlocked jury in the first trial constituted an overruling necessity warranting the mistrial.
This court has explained as follows:
Both the Fifth Amendment to the United States Constitution and article 2, § 8 of the Arkansas Constitution require that no person be twice put in jeopardy of life or liberty for the same offense. The Double Jeopardy Clause protects criminal defendants from: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.”
Koster, 374 Ark. at 81, 286 S.W.3d at 159 (quoting Hughes v. State, 347 Ark. 696, 702, 66 S.W.3d 645, 648 (2002)) (citation omitted). Thus, once the jury has been sworn and jeopardy attaches, the court can grant a mistrial without barring subsequent prosecution only if there is an “overruling necessity.” See Smith v. State, 307 Ark. 542, 545, 821 S.W.2d 774, 776 (1992) (quoting Wilson v. State, 289 Ark. 141, 145, 712 S.W.2d 654, 656 (1986)). Under Arkansas law it is well settled that a deadlocked jury is a circumstance that qualifies as an overruling necessity. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). The decision to order a mistrial due to a jury’s inability to reach a verdict is within the sound discretion of the circuit court, and will be upheld absent an abuse of discretion. Id.
17Here, Appellant does not challenge the fact that the hung jury in the first trial was an overruling necessity that required the declaration of a mistrial. Instead, he argues that he was acquitted on the two charges by virtue of the fact that the jury, which was given the transitional instruction, announced in open court that it had found him not guilty of capital murder and first-degree murder, and he cannot now be retried on those two charges. Thus, the question at issue for this court is what effect, if any, the announcement in open court had on the State’s ability to retry Appellant on those two charges.
Both the United States Supreme Court and this court have recognized that a trial ending in a hung jury is not the equivalent of an acquittal for purposes of establishing former jeopardy. See Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) (explaining that trial court’s declaration of a mistrial because of a hung jury was not an event that terminated the original jeopardy to which the defendant was subjected); see also Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991). Moreover, it is axiomatic that a judgment is not valid until entered of record. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). We further stated in Bradford that a judgment rendered in open court is not controlling until entered or filed of record. Id. The mere reading of the jury’s verdict in open court does not constitute an acquittal. Id. Further, a jury’s verdict may be amended before it is entered of record, before 18the jury has separated, and after a poll of each juror reveals that each understands the effect of the verdict. Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980).
It is true that the foregoing cases did not address any implication of the transitional instruction. Nevertheless, neither the giving of those instructions nor the forewoman’s announcement in open court that the jury found Appellant not guilty on those two charges negates the bedrock principle of law that a judgment is not valid until entered of record. It is undisputed that no formal acquittal was entered of record in this case, and we find unavailing Appellant’s assertion that a formal verdict of acquittal was not necessary. In support of his contention, Appellant relies on Ark.Code Ann. § 5 — 1—112(l)(B)(i) (Repl.2006), which provides that an acquittal occurs when the “former prosecution resulted in a determination of not guilty.” But, the statutory provision for what constitutes an acquittal in no way forecloses the requirement that for an acquittal to be final it must be entered of record. If we were to accept Appellant’s argument, we would be ruling contrary to years of jurisprudence, and this we will not do.
We recognize that there are prior cases where this court has stated that, in criminal cases, a general verdict is not actually required to be in writing, but may be announced orally. Rowland, v. State, 263 Ark. 77, 562 S.W.2d 590 (1978); Dixon v. State, 29 Ark. 165 (1874); Atkins v. State, 16 Ark. 568 (1855). In Dixon, we explained that the verdict need not be in writing, but may be announced by the foreman of the jury orally and then entered by the clerk in proper form upon the record. Here, however, the jury forewoman was not making |9a formal announcement of acquittal. She was engaged in a discussion with the circuit court about the jury’s deliberations and the jurors’ inability to agree on a verdict. Thus, this is a not a situation where a formal verdict was announced or entered of record.
A similar issue arose in Walters v. State, 255 Ark. 904, 503 S.W.2d 895 (1974). There, this court rejected a double-jeopardy argument where the circuit court inquired into the deliberations, stating as follows:
Neither can we agree with appellant that the first trial resulted in an implied acquittal of all degrees in excess of involuntary manslaughter. The statements between the trial court and the jury foreman cannot be considered under the circumstances as a verdict of the jury. See Ark. Stat. Ann. § 43-1226 (Repl.1964).
Id. at 906-07, 503 S.W.2d at 897. Appellant takes issue with the applicability of Walters to his own case, arguing that its ruling was based on a statute that has since been repealed. According to Appellant, the repeal of section 43-1226 renders Walters inapplicable to the instant case. Appellant simply views the import of Walters too narrowly. Section 43-1226 provided that “[w]here an offense consists of different degrees, a conviction, or acquittal by judgment upon a verdict shall be a bar to another prosecution for the offense in any of its degrees.” This statute, which was subsequently incorporated into Ark. Code Ann. § 16-85-712 (1987), was repealed in 2005. According to Appellant, by repealing this provision the legislature intended to abolish the formalities attendant to a final verdict by endorsing an informal determination by a jury. We agree with the State that the repeal did not indicate such a desire and was more likely the result of a desire to bring statutory authority in line with state and federal precedents and that while judgments are no longer required to bar subsequent 1 ^prosecutions, an actual verdict is still required. Appellant also claims that Walters is of no moment because it does not address the issue of transitional instructions. Again, Appellant too narrowly construes Walters. While the case is factually distinguishable, it demonstrates that this court has rejected the notion that a discussion between the court and the jury fore person amounts to an acquittal where no final verdict was entered.
Although Appellant did not request that the circuit court poll the jury or request that an acquittal be entered of record, he did request that the jury be given verdict forms on the charges of capital murder and first-degree murder. In essence, what Appellant sought was a partial verdict. See Walker v. State, 808 Ark. 498, 825 S.W.2d 822 (1992). Jurisdictions are split on the issue of partial verdicts. But, the majority of jurisdictions have held that if a single charge includes multiple degrees of offenses, the trial court may not conduct a partial-verdict inquiry as to the offenses included within the charge. See, e.g., Richardson, 184 P.3d 755; People v. Hall, 25 Ill.App.3d 992, 324 N.E.2d 50 (1975); State v. Bell, 322 N.W.2d 93 (Iowa 1982); State v. McKay, 217 Kan. 11, 535 P.2d 945 (1975); Commonwealth v. Roth, 437 Mass. 777, 776 N.E.2d 437 (2002); State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (1982); People v. Hickey, 103 Mich.App. 350, 303 N.W.2d 19 (1981).
The minority, on' the other hand, has held that double jeopardy requires a partial verdict of acquittal as to the greater offenses if the jury is deadlocked only as to the lesser l^offenses. See, e.g., Stone v. Superior Court, 31 Cal.3d 503, 183 Cal. Rptr. 647, 646 P.2d 809 (1982); State v. Tate, 256 Conn. 262, 773 A.2d 308 (2001); State v. Pugliese, 120 N.H. 728, 422 A.2d 1319 (1980); Whiteaker v. State, 808 P.2d 270 (Alaska Ct.App.1991). The minority of jurisdictions that accept partial verdicts seem to focus on the fact that there can be no “manifest necessity” warranting the declaration of a mistrial where the circuit court makes no inquiry into the jury’s deliberations as to the greater offenses. People v. Anderson, 47 Cal.4th 92, 97 Cal. Rptr.3d 77, 211 P.3d 584 (2009).
We are simply unpersuaded by the underlying rationale supporting the minority view. Moreover, this court has rejected the concept of a partial verdict in Walker, 308 Ark. 498, 825 S.W.2d 822. There, the appellant’s first trial ended in a mistrial because of a hung jury. During his retrial, he sought a continuance to obtain the presence of the jurors who sat on his first trial based on his assertion that they could testify that they had found him not guilty on the greater offense of capital murder. His motion was denied, and on appeal he alleged this was error. This court affirmed, stating as follows:
Although appellant refers to a “partial verdict” when discussing the murder charges, the short answer to his argument is that the first trial resulted in a hung jury which produced no verdict at all. No double jeopardy issue exists, and the trial court did not abuse its discretion in denying appellant’s motion for continuance.
Id. at 504, 825 S.W.2d at 825. Accordingly, we find no merit to Appellant’s contention that the circuit court erred in denying his motions to prevent his retrial on the charge of capital murder and its lesser-included offenses.
Affirmed.
. Appellant does not challenge the State's ability to retry him on the charges of manslaughter and negligent homicide.
. Although this court did not specifically define "partial verdict” as the term is used in the instant case, it refers to a verdict on some, but not all, of the offenses within the single charge of capital murder. See People v. Richardson, 184 P.3d 755 (Colo.2008). | [
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PER CURIAM.
liOn September 26, 2006, a jury found Eric Flowers guilty of capital-felony murder under Arkansas Code Annotated § 5-10-101 (Repl.2006) and sentenced him to life without parole in the Arkansas Department of Correction. We affirmed. Flowers v. State, 370 Ark. 115, 257 S.W.3d 532 (2007). Subsequently, appellant timely filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2010). No evidentiary hearing was held, and the trial court denied relief on the petition in an order entered November 3, 2009. Appellant timely filed in this court an appeal from that order.
Now before us is appellant’s motion for extension of time to file his brief and a motion for copies of the trial transcript at public expense. We need not address the merits of appellant’s motions because it is clear from the record that appellant could not prevail on appeal of the November 3, 2009 order if the appeal were permitted to go forward. ^Accordingly, the appeal is dismissed and the motions are moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to proceed where it is clear that the appellant could not prevail. Goldsmith v. State, 2010 Ark. 158, 2010 WL 1253187 (per curiam); Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam); Meraz v. State, 2010 Ark. 121, 2010 WL 844885 (per curiam); Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam).
In his petition for postconviction relief, appellant raised five claims of ineffective assistance of counsel based on trial counsel’s alleged failure to prepare a proper defense strategy, including failure to proffer a jury instruction for second-degree murder; inform the trial court that counsel did not have the proper experience to try a capital-murder case; request a continuance following inculpatory testimony from a witness; object and preserve for appellate review the issues of erroneous jury instructions proffered by the State and insufficient felony information; move to dismiss the charges on speedy-trial grounds. None of these grounds is sufficient to warrant reversal of the trial court’s decision.
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam) Inciting Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per cu-riam)). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Jamett, 2010 Ark. 28, 358 S.W.3d 874; Anderson v. State, 2009 Ark. 493, 2009 WL 3235533 (per curiam); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact-finder must be considered. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence, under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. French v. State, 2009 Ark. 443, 2009 WL 3047356 (per curiam); Small, 371 Ark. 244, 264 S.W.3d 512. Under the two-pronged Strickland test, a petitioner making a claim of ineffective assistance must first show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the U.S. Constitution. Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007); Barrett, 371 Ark. at 95-96, 263 S.W.3d at 546. In doing so, the claimant must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Barrett, 371 Ark. at 96, 263 S.W.3d at 546.
As to the second prong of the test, the petitioner must show that counsel’s deficient | ^performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Jamett, 2010 Ark. 28 at 3-4, 358 S.W.3d at 876; Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probabil ity is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Appellant’s first claim of ineffective assistance of counsel alleged failure by counsel to “prepare a proper defense.” According to appellant, trial counsel chose to pursue the theory of defense that appellant was not at the scene of the crime, which appellant claimed “tantamounted [sic] to no defense at all.” Further, appellant argued that, had trial counsel pursued a mental-defect or diminished-capacity defense strategy based on appellant’s drug intoxication at the time, appellant would have been entitled to a jury instruction on second-degree murder.
Trial counsel’s decisions regarding what theory of the case to pursue represent the epitome of trial strategy. Howard v. State, 867 Ark. 18, 238 S.W.3d 24 (2006); see Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000); see generally Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987) (even though another attorney could have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment). Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then such a decision is not a proper basis for relief under | BRule 37.1. Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam); McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam); Johnson v. State, 2009 Ark. 460, 344 S.W.3d 74 (per curiam). This is true even where the chosen strategy was improvident in retrospect. See Coston v. State, 284 Ark. 144, 680 S.W.2d 107 (1984). Further, an attorney need not advance every argument urged by his client. Burnett v. State, 293 Ark. 300, 737 S.W.2d 631 (1987).
To the extent that he made such a contention at all, appellant’s only argument that trial counsel’s decision was not supported by reasonable, professional judgment seems to have been that, had trial counsel presented a mental-defect or diminished-capacity defense, appellant’s drug intoxication would have entitled him to a jury instruction on second-degree murder. Appellant is mistaken; we have held that voluntary intoxication is not a defense to any crime in Arkansas. See Miller v. State, 2010 Ark. 1, 362 S.W.3d 264. Because appellant’s intoxication would not have been a defense to the crime, we cannot say that a decision by trial counsel to pursue a strategy of general denial rather than one of mental defect or diminished capacity was not based on reasonable, professional judgment, and appellant’s argument on this point was without merit.
Appellant’s second asserted basis for ineffective assistance of counsel was premised on trial counsels’ failure to inform the court that they did not have the requisite experience to handle a capital-murder case. Appellant argued that he was entitled to attorneys with at least ten years’ experience handling capital-murder cases, that both of his court-appointed public | defenders had less than ten years’ experience, and that the failure of the attorneys to properly prepare a defense proves that they were inexperienced to the point that appellant was denied effective assistance. Further, appellant argued that he was prejudiced by his attorneys’ lack of experience because, had he had more experienced counsel, “there is a great probability that the outcome of the proceedings could have been different.”
Appellant cited to no authority in support of the proposition that he was entitled to trial counsel who had at least ten years’ experience with capital-murder cases. Indeed, nothing in the Arkansas Rules of Criminal Procedure or the Rules of the Arkansas Supreme Court requires that an attorney have ten years’ experience in death-penalty cases before he or she may sit as lead attorney on such a case. We need not consider an argument when a claimant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. See Jamett, 2010 Ark. 28 at 5 n. 2, 358 S.W.3d at 877, n. 2 (citing Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003)).
For his third claim of ineffective assistance of counsel, appellant asserted that trial counsel failed to request a continuance or a mistrial when one of the State’s witnesses stated unexpectedly that appellant shot the victim because the victim had seen appellant’s face. Appellant argued that the prosecutor had a duty to disclose that the witness would testify in this manner, that the prosecutor’s failure to disclose amounted to a violation under Arkansas Rule of Criminal Procedure 17.1 (2010), and that trial counsel should have requested a continuance or a mistrial based on this failure to disclose. Trial counsel’s failure to request a 17continuance or move for a mistrial, appellant argued, resulted in prejudice because this testimony undermined trial counsel’s proffered theory of defense.
In support of this claim, appellant cited Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), and Shuffield v. State, 23 Ark.App. 167, 745 S.W.2d 630 (1988). Neither case is persuasive.
Williamson dealt with, inter alia, a prosecutor’s failure to provide a copy of a recorded statement made by a witness upon timely request by the defense. In the instant case, there was no mention of a recorded statement by the witness, nor was there any allegation that such a recorded statement had been requested or had not been disclosed.
The Arkansas Court of Appeals decision in Shuffield, in addition to having no prec-edential value in this court, is simply inap-posite. That case dealt with the failure of police to provide the prosecutor’s office with information beneficial to the defense and the imputation of that failure by police to the prosecutor’s office. Appellant did not allege that there was any similar failure in the instant case.
Appellant’s argument seemed to be only that the prosecutor in his case failed to follow certain rules of discovery with respect to the witness’s testimony and that, under Williamson and Shuffield, her testimony should have been excluded; thus, trial counsel would have had a basis for requesting a continuance or a mistrial or for objecting to the testimony. However, appellant did not demonstrate that the State actually violated any rules of discovery, as he failed to provide citation to any authority that would suggest that the prosecutor had a duty to disclose in this situation.
[¡Trial counsel cannot be ineffective for failing to make an objection or argument that is without merit. See Johnson v. State, 2009 Ark. 552, 2009 WL 3681646; Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). Because appellant did not establish that the prosecutor breached any rules of discovery, he accordingly failed to demonstrate that any objection to the witness’s testimony or a motion for a continuance or a mistrial based on the rules of discovery would have been meritorious, and he thus failed to establish that his trial counsel was ineffective.
The fourth basis for ineffective assistance of counsel that appellant raised was based on trial counsel’s failure to object to and preserve for appellate review the “erroneous instructions given to [the] jury.” Appellant claimed that the instructions were erroneous because he “was not properly charged by felony information or indictment, nor did he receive full notice that he was charged with committing the Robbery” that was the underlying felony to support the charge of capital-felony murder. Appellant’s argument, however, is wholly without merit; the Criminal Information charging appellant with capital murder — a copy of which appellant included with his original Rule 37.1 petition— reads:
Committed as follows: Count # 1 Offense: Capital Murder That [Eric J. Flowers] on or about August 25, 2004, in Miller County, Arkansas, did unlawfully acting alone or with one (1) or more other persons, he committed or attempted to commit the offense of robbery as defined in A.C.A. 5-12-103, he or an accomplice caused the death of Obbie Watson under circumstances manifesting extreme indifference to the value of human life; or with the premeditated and deliberated purpose of causing the death of Obbie Watson, he caused the death of Obbie Watson.
Appellant’s fifth argument regarding ineffective assistance of counsel was based on trial counsel’s alleged failure to file a motion to dismiss the charges on speedy-trial grounds prior to trial. Appellant acknowledged that the continuances in his case were all requested by the |fldefense, but he contended that the trial court could not continue a case, even at the request of the defense, for longer than sixty days. Appellant further alleged that, after subtracting the days that he considered ex-cludable from the time between his arrest and his trial, he was tried 147 days beyond the one-year deadline for speedy trial.
Arkansas Rule of Criminal Procedure 28.1 (2010) requires that any defendant charged with a criminal offense is entitled to have the charge dismissed with an absolute bar to prosecution if he is not brought to trial within twelve months from the time provided in Rule 28.2, excluding only such periods of reasonable delay as are authorized in Rule 28.3. This court has held that failure to file a timely speedy-trial motion may constitute ineffective assistance of counsel. See Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986); Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981). However, we have also held that continuances requested by the defense were excludable periods for purposes of calculating the twelve-month deadline. See Johnson v. State, 2009 Ark. 552, 2009 WL 3681646; Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007). Most importantly for purposes of the instant petition, we have never held that only sixty days of a continuance requested by the defense were excludable; on the contrary, we have consistently held that the entire delay caused by the continuance was chargeable to the defendant. See, e.g., Dodson v. State, 358 Ark. 372, 191 S.W.3d 511 (2004) (holding that periods of 13, 72, 136, and 284 days were properly excludable as continuances | ^requested by the defense).
As appellant conceded in his original Rule 37.1 petition, all of the continuances in question were requested by his trial counsel. Thus, all periods of delay between appellant’s September 6, 2004 arrest date and his trial on June 25, 2006, were chargeable to appellant, and his speedy-trial claim is without merit.
Based on the foregoing, it is clear that appellant could not prevail if his appeal were permitted to proceed. We therefore dismiss the appeal, and appellant’s motions are accordingly moot.
Appeal dismissed; motions moot.
. While the trial court did not enter written findings of fact and law explaining the rationale for dismissing appellant’s petition without holding an evidentiary hearing, we have held that we will nevertheless affirm a trial court's decision notwithstanding the failure to comply with Arkansas Rule of Criminal Procedure 37.3(a) where it is clear from the record or on the face of the petition that no relief is warranted. See Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).
. Appellant’s petition for postconviction relief also included a conclusory claim of actual innocence; such claims are challenges to the sufficiency of the evidence and are not cognizable in petitions under Rule 37.1, however. See, e.g., Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).
. Appellant contended that only the first sixty days of a continuance are excludable under Arkansas Code Annotated § 5-4-310(b)(2) (Repl.2006). That statute, however, deals only with the time in which someone arrested on allegations of probation or parole violations must be given a preliminary probable-cause hearing and is inapplicable here. | [
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JIM GUNTER, Justice.
hA jury in Crawford County convicted appellant David Sweet of aggravated robbery and kidnapping, and he was sentenced to two consecutive terms of life imprisonment. Our jurisdiction is pursuant to Rule l-2(a)(2) of the Arkansas Rules of the Supreme Court.
Appellant asserts six arguments on appeal: (1) that the circuit court erred in denying his proffer of jury instructions on the offenses of robbery and false imprisonment; (2) that the circuit court erred in allowing into evidence a videotape and several photographs; (3) that the circuit court erred in refusing to suppress appellant’s custodial statements; (4) that the photo lineup provided to the victim was unduly suggestive and created a substantial possibility of misidentification; (5) that the circuit court abused its discretion in denying appellant’s request for a mistrial; and (6) that the circuit court erred in denying appellant’s motion for directed verdict because there was insufficient evidence to support the aggravated robbery and kidnapping charges. We affirm.
|2On April 29, 2009, at approximately 5 p.m., Elizabeth Bitzelberger was the last employee to leave the medical clinic in Mulberry, Arkansas. As she was exiting through the back door of the clinic, a man came at her with a knife. He forced Bit-zelberger back into the clinic and used duct tape to cover her mouth and bind her feet and hands. He then demanded money. The man took six dollars out of Bitzel-berger’s purse and $102.60 out of the cash drawer in the office of the clinic. He then placed Bitzelberger in one of the examination.rooms and ripped off her shirt and bra with the knife. Thereafter, he took the keys to Bitzelberger’s truck and went out the back door of the clinic to the parking lot. When Bitzelberger heard the backdoor bell indicating that the man had left the building, she freed her feet and ran out the front of the clinic, across the street, and into a neighboring pharmacy. There, she had pharmacy employees call for help.
After law enforcement officers arrived on the scene, Bitzelberger gave a description of her attacker and then identified appellant as her attacker from his picture as a registered sex offender on the Arkansas Crime Information Website. The next day, appellant was apprehended by law enforcement. While he was being transported to jail, appellant confessed to Mulberry Police Chief Joshua Craig. Later, appellant gave a videotaped confession to Crawford County Sheriffs Department Detective Ken Howard.
On February 9, 2010, the State filed an amended information charging appellant with aggravated robbery in violation of Ark.Code Ann. § 5-12-103, a Class Y felony; kidnapping in violation of Ark.Code Ann. § 5-11-102, a Class Y felony; attempted rape in violation of | ¡⅛Ark.Code Ann. § 5-3-201, a Class A felony; and enhanced sentencing as a habitual offender. Prior to trial, appellant filed a motion to suppress his custodial statements and a motion in limine to exclude Bitzelberger’s photographic identification of appellant, a surveillance videotape from the pharmacy across the street showing Bitzelberger running across the street, and photographs of Bitzelberger taken after the incident.
The circuit court held a hearing on the motions on January 28, 2010, with a followup hearing held the morning of trial on February 10, 2010. Evidence was presented that appellant had four prior felonies and had served twenty-one years in prison in Georgia. After hearing testimony and argument from both parties, the circuit court found that the photographic identification of appellant by Bitzelberger on the day of the incident was not unduly suggestive because at the time, appellant was not a suspect in the crime. Therefore, an actual photographic lineup had not taken place. The court did prohibit the State from mentioning that the photographs were accessed from the sex-offender registry. The circuit court also found that the videotape and photographs were admissible. As to the suppression of appellant’s custodial statements, the circuit court found that appellant made a knowing and voluntary waiver of his rights.
At trial, Bitzelberger identified appellant as the man who accosted her on April 29, 2009. She testified that as she was leaving the Mulberry Clinic, appellant “came at” her with a knife to her throat. He pushed her back into the clinic; taped her mouth, wrists, and ankles with duct tape; and demanded money. Bitzelberger stated that appellant warned her that he |4would not kill her if she cooperated. She testified that appellant took six dollars out of her purse and then asked her where the clinic money was kept. After appellant removed the tape from her mouth, Bitzel-berger told appellant the money was in the front office. Appellant carried Bitzelber-ger over his shoulder to the front of the clinic where he took $102.60 out of the clinic’s coffers. Bitzelberger stated that appellant wiped down the handles of the drawer with his sleeve. Appellant then carried Bitzelberger back to one of the clinic’s examination rooms. There, he placed her on the examination table and re-taped her wrists behind her back. Bit-zelberger pleaded with appellant not to hurt her and she would not tell anyone what he had done. Appellant responded that “that’s what they all say.” Appellant told Bitzelberger that if she did not shut up, he was going to kill her. At that point, appellant used the knife to cut open Bitzel-berger’s shirt and cut off her bra. Appellant made a comment about Bitzelberger’s youth and that “they don’t know what they’re missing out on.” Bitzelberger testified that appellant touched the inside of her leg when he made the statement. Appellant again taped her mouth shut and asked for the keys to her truck. She nodded to her left jacket pocket. Appellant removed the keys from her pocket and exited the clinic through the back door. Bitzelberger stated that when she heard the service bell above the back door indicating that appellant had left, she rolled her ankles to remove the tape. She tripped, fell into a weight scale, hit a table, knocked over several chairs, and ran out the front of the clinic to the pharmacy across the street where employees immediately called for the police.
Bitzelberger testified that she got a good look at appellant during the incident. She described him to police as 5'8" or 5'9", blue-eyed, with salt and pepper hair, a moustache, and |5an unshaven face. Bit-zelberger testified that Detective Patti Bonewell with the Crawford County Sheriffs Department showed her twenty-five pictures to try to identify her attacker. Bitzelberger did not identify any of the men pictured as the perpetrator. However, Detective Bonewell showed Bitzelber-ger a second batch of photographs, and she immediately identified appellant as her attacker.
Martha Wilkins testified that she was employed by the Mediquik Pharmacy in Mulberry and was working on April 29, 2009. She stated that she saw a man cross the street and go behind the Mulberry Clinic at approximately closing time. Wilkins identified appellant as the man that she saw that day. Ten or fifteen minutes after Wilkins saw the man, Bitzelberger rushed into the pharmacy. Wilkins testified that Bitzelberger’s shirt and bra were cut so that her breasts were exposed, that she had duct tape hanging from her ankle, that her hands were taped behind her back, and that she had tape across her mouth.
Franklin County Sheriffs Officer Brent Scott testifiéd that on April 30, 2009, he was summoned to assist in the apprehension of appellant. Dispatch informed Officer Scott that appellant was on foot running west along Highway 64. Officer Scott apprehended appellant at an apartment complex off the highway after several bystanders indicated the direction the man had ran. Officer Scott testified that there was a short foot chase but that after he drew his firearm and warned appellant to stop, he did so. Officer Scott informed appellant of his Miranda rights and handed him off to Mulberry Police Chief Joshua Craig.
Chief Craig testified that he arrived at the pharmacy shortly after 911 dispatch reported the call of a possible kidnapping. Chief Craig stated that he recovered a surveillance recording | fifrom the pharmacy of the outside perimeter. He said that the next day, he took custody of appellant from Officer Scott and transported appellant to the Crawford County jail. Chief Craig admitted that he did not Mirandize appellant but said that he overheard Officer Scott recite the rights to appellant. On the way to the jail, almost immediately after being placed in the patrol car, appel lant began talking and confessed to the officer that he went to the clinic with a knife and duct tape because he needed money. Chief Craig testified that he told appellant that it was best he wait and talk to the investigator at the jail. Appellant, however, kept talking. Appellant told Chief Craig that when the woman opened the back door, appellant pushed his way into the clinic, taped the woman’s hands, feet, and mouth, and stole money. Appellant said that he cut her shirt and bra off but that he never intended to hurt her. Appellant stated that he took her keys but realized it was a manual transmission, which he could not drive. When appellant saw the woman run across the street, he fled. Chief Craig testified that toward the end of his confession, appellant began to cry and ask for help.
Detective Patti Bonewell testified that she responded on April 29 to lead the investigation. She stated that when she reached the scene she met with the victim, who still had her hands tied behind her back and was distraught. Detective Bone-well took several pictures of the crime scene and the victim that were admitted into evidence. Detective Bonewell testified that the video surveillance tape provided by the pharmacy, which was played for the jury, showed a man cross the street and go behind the clinic. Several minutes later, the video shows the victim run into the pharmacy with tape on her mouth and her breasts exposed. Detective Bonewell stated that Bitzelberger gave a physical description of her |7attacker and that, once he was arrested, her description closely resembled appellant. Detective Bonewell explained that she showed Bitzelberger thirty to forty photographs on the day of the incident to try to identify her attacker. Detective Bonewell testified that when Bit-zelberger saw the photograph of appellant, she became agitated and physically upset. Detective Bonewell testified that appellant’s wallet contained $108 and some change when he was taken into custody.
Detective Ken Howard of the Crawford County Sheriffs Department testified that he interviewed appellant in connection with the case on April 30, 2009. He began the interview by reading appellant his Miranda rights and having him sign a waiver of those rights. Appellant circled “yes” and initialed each of the five questions on the form. Moreover, appellant signed the waiver form. Detective Howard stated that he video recorded appellant’s interview. A transcript of the interview was admitted into evidence. In the interview, appellant confessed that he went to the Mulberry Clinic to steal money, accosted the victim with a knife at the back door, tied her up, and fled the scene once he realized she had gotten away. Detective Howard testified that appellant did not give him all the facts initially, but rather that he confessed in “bits and pieces.”
After the State rested, appellant moved for directed verdict and stated the following:
As to the aggravated robbery, the State has not presented enough evidence to show that [appellant] could have the culpable mental state, purposefully, based on his mental retardation. There is no evidence of physical force. There are no injuries to the victim to corroborate any type of physical force. There’s been conflicting testimony as to what type of knife it was, and there’s no knife in evidence.
As to the kidnapping charge there’s no evidence that the victim failed to consent or she did not consent in any way. I don’t think 15 minutes would qualify as substantially interfering with her liberty.
|8As to the intent again, based upon his mental retardation, he could not form a culpable mental state of purposefully.
After making his motion for directed verdict, appellant renewed several motions, including his objection to the pretrial photographic identification, his objection to the State’s introduction of photographs and the surveillance video, and the suppression of appellant’s custodial statements. The circuit court denied all defense motions.
The defense called Dr. Paul Deyoub to testify regarding his mental examination of appellant. Dr. Deyoub stated that he interviewed appellant on May 21, 2009, and administered several tests to him. Based on the outcome of that testing, Dr. Deyoub scored appellant’s intelligence quotient at fifty-two and diagnosed him with mild mental retardation. However, Dr. Deyoub testified that he also diagnosed appellant with malingering, or not giving his best effort on the tests and attempting to control their outcome. Based on appellant’s malingering, Dr. Deyoub stated that his intelligence quotient was likely between sixty-five and seventy, which would still qualify as mildly mentally retarded. Although Dr. Deyoub stated that appellant’s mild mental retardation was a mental defect under the law, Dr. Deyoub also determined that appellant could appreciate the criminality of his conduct, had the capacity to form the culpable mental state, and could conform his conduct to the requirements of the law.
After the defense rested, appellant renewed his motion for directed verdict arguing almost verbatim the arguments he made in his initial motion for directed verdict. Those motions were denied by the circuit court. The case was submitted to a jury, which found |9appellant guilty of aggravated robbery and kidnapping, sentenced him to two terms of life imprisonment, and recommended those sentences run consecutive. The circuit court entered a judgment and commitment order on February 19, 2010, sentencing appellant to two consecutive life sentences. Appellant filed a timely notice of appeal on February 26, 2010.
I. Sufficiency of the Evidence
Although appellant presents his challenge to the circuit court’s denial of his motion for directed verdict as his last point on appeal, we must address such a challenge first for purposes of double jeopardy. See Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. The credibility of witnesses is an issue for the jury and not the court. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Appellant’s first sufficiency argument is that the State failed to establish the necessary elements of aggravated robbery because appellant could not have formed the requisite culpable |inmental state (purposefully) due to his mental retardation. Appellant also contends that no weapon was recovered, that there was no proof that the knife was a deadly weapon, and that there was no proof that appellant intended to inflict or attempted to inflict death or serious physical injury upon the victim.
Arkansas Code Annotated section 5-12-103 (Repl.2006), states that a person commits aggravated robbery if he or she commits a robbery as defined in Ark. Code Ann. § 5-12-102 and:
(1) Is armed with a deadly weapon;
(2) Represents by word or conduct that he or she is armed with a deadly weapon; or
(3) Inflicts or attempts to inflict death or serious physical injury upon another person.
Arkansas Code Annotated section 5-12-102(a) (Repl.2006), states that a person commits the offense of robbery “if, with the purpose of committing a felony or misdemeanor theft ..., the person employs or threatens to immediately employ physical force upon another person.” A “deadly weapon” is defined as a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury or anything that in the manner of its use or intended use is capable of causing death or serious physical injury. Ark.Code Ann. § 5-1-102(4) (Supp.2009). Knives have been found to be a deadly weapon in previous cases. See, e.g., Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999); Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984).
The evidence in this case is sufficient to support the jury’s finding that appellant committed aggravated robbery. Dr. Dey-oub testified that although appellant suffered from mild mental retardation, he was able to appreciate the criminality of his conduct and conform | T1his behavior to the law. There is no indication in Dr. Dey-oub’s testimony that he believed appellant could not form the culpable mental state. In fact, just the opposite. Dr. Deyoub specifically noted that appellant had the capacity to form the culpable mental state. Furthermore, Bitzelberger’s testimony was that appellant assaulted her with a knife. It was reasonable for the jury to consider a knife a deadly weapon, and that conclusion is supported by our prior case law. Additionally, the statute does not require that appellant inflict or attempt to inflict death or serious physical harm to the victim. That element is preceded by the conjunction “or.” The facts were that appellant was armed with a knife, used it to threaten to kill Bitzelberger, and then stole money from her and the clinic. That evidence is sufficient to support the aggravated-robbery conviction.
Appellant’s second sufficiency argument is that the State failed to prove the necessary elements of the offense of Class Y kidnapping. A person commits kidnapping if, without consent, he restrains another person so as to interfere substantially with the other person’s liberty with the purpose of facilitating the commission of any felony; facilitating flight after the commission of any felony; inflicting physical injury upon the other person; or terrorizing the other person. ArkCode Ann. § 5-11-102 (Repl.2006). Kidnapping is a Class Y felony except that the statute makes clear that the offense is to be considered a Class B felony if the defendant can show by a preponderance of the evidence that he or she or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial. ArkCode Ann. § 5-ll-102(b)(2) (Repl. 2002).
| ^Appellant maintains that because the victim in this case was released by appellant in a safe place, the State failed to prove the necessary elements of the Class Y felony of kidnapping but instead proved appellant guilty of Class B felony kidnapping. As a threshold matter, we must determine whether this argument is preserved for our review. To preserve a challenge to the sufficiency of the evidence for appeal, a clear and specific motion for a directed verdict must be made to the trial court. Pinell v. State, 364 Ark. 358, 219 S.W.3d 168 (2005). Arkansas Rule of Criminal Procedure 33.1 establishes the procedure for making the motion and reads in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
We have said that the reasoning behind this rule is “that when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.” Pinell, 364 Ark. at 357, 219 S.W.3d at 171. An additional reason for the requirements under Rule 33.1 is that this court may not decide an issue raised for the first time on appeal. Elkins v. State, 374 Ark. 399, 288 S.W.3d 570 (2008).
In his motion for directed verdict following the State’s case-in-chief, appellant argued only that the State failed to present sufficient evidence that the victim’s liberty was substantially interfered with or that she had not consented to the restraint. Appellant’s renewal of that motion was substantially the same. Appellant never argued below that the evidence presented by the State proved Class B felony kidnapping but not Class Y. Pursuant to our case law, we decline to address that specific argument because it was not preserved for our review. See Pinell, supra.
II. Lesser-included Offenses
Appellant argues that the circuit court erred in denying his proffered jury instruction on the lesser-included offense of robbery and first- and second-degree false imprisonment. Specifically, appellant contends that the court should have instructed the jury on robbery |ubecause appellant told the police that he never intended to hurt the victim and because there was no proof that he actually used a knife in the commission of the crime. Furthermore, appellant maintains that the jury should have been instructed on false imprisonment in the first and second degree because the victim was able to free herself and escape and the time she was restrained was only approximately fifteen minutes.
An instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Once an offense is determined to be a lesser-included offense, the circuit court is obligated to instruct the jury on that offense only if there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser-included offense. Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005). A trial court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Grillot, supra.
The elements of aggravated robbery and robbery are fully explained above in the section on sufficiency. Ordinary robbery is generally a lesser-included offense of aggravated robbery, and more often than not a robbery instruction is required when the charge is aggravated robbery. Broum v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). However, when the evidence is so conclusive as to show that only aggravated robbery was committed, the judge need not instruct the jury on mere robbery. Id. In Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004), we concluded that there was no rational basis for the circuit judge to instruct the jury on ordinary robbery. There, the defendant had pushed into the victim’s trailer home, | ^demanded money, and pulled out a pair of broken scissors to enforce his demand. We held that those facts supported the circuit judge’s decision not to instruct on simple robbery.
Here, Bitzelberger testified that appellant held a knife to her throat, threatened to kill her if she did not cooperate, and forced her into the deserted clinic. Thereafter, appellant bound her with duct tape and cut her shirt and bra with the knife, fully exposing her breasts. Appellant admitted to police that he used a knife to steal money from Bitzelberger and the clinic. He also admitted that he used the knife to cut the victim’s shirt and bra. Certainly, the knife was therefore sharp enough to be capable of cutting through fabric and a bra strap. Based on these facts, we cannot say that the circuit court abused its discretion in refusing to instruct the jury on ordinary robbery because the evidence provided by the State clearly establishes appellant was guilty of aggravated robbery.
As to whether the circuit court erred in declining to instruct the jury on false imprisonment, we have held that neither first-degree nor second-degree false imprisonment is a lesser-included offense to kidnapping. Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006). In Davis, we explained that first- and second-degree false imprisonment include elements not required' to prove kidnapping. Therefore, it was not error for the circuit judge to refuse to instruct the jury on false imprisonment as it is not considered a lesser-included offense to kidnapping.
III. Admissibility of Videotape and Photographs
Appellant’s next argument is that the circuit court erred in allowing the State to introduce into evidence (1) a surveillance videotape that was provided to police by the hspharmacy that showed the victim run across the street and into the pharmacy and (2) and photographs identified as State’s Exhibits 22 through 30 that depicted the scene of the crime. Appellant asserts that the videotape was cumulative and inflammatory, especially in light of the fact that witnesses had testified to the events on the day of the incident. Similarly, appellant argues that the photographs the State introduced, which depicted the duct tape around Bitzelberger’s ankles and wrists, the minor injuries she sustained as a result of her escape, and her partially nude torso, were cumulative and introduced only to elicit an emotional response from the jury.
'As with other matters pertaining to the admissibility of evidence, the admission of photographs is a matter left to the sound discretion of the trial court, and we will not'reverse absent an abuse of that discretion. Springs v. State, 368 Ark. 256, 244 S.W.3d 683. (2006). When photographs are helpful to explain testimony, they are ordinarily admissible. Id. Moreover, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Id. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Id. The same requirements for the admission of photographs apply to the admission of video evidence. Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008).
We affirm the circuit court’s decision on the admissibility of this evidence. Both the videotape and photographs were relevant to corroborate the testimony of witnesses. The |17videotape shows Bitzelber-ger run across the street, but it has no sound element. The photographs are ten of thirty photographs the State intended to admit into evidence. They illustrate Bit-zelberger’s condition shortly after the incident occurred, showing her injuries and her state of undress. Nothing in the videotape nor the photographs is extraordinarily sensational or gruesome. Both the videotape and the photographs simply show the victim as appellant left her. Based on our precedent, we are satisfied that the circuit court did not abuse its discretion in allowing the videotape and the ten photographs into evidence where those items where informative of what happened on the day in question and corroborated the testimony of the State's witnesses.
IV. Custodial Statements
Appellant argues that the circuit court erred in not suppressing appellant’s custodial statements because they were made without a knowing, voluntary, and intelligent waiver of his rights. First, appellant contends that appellant’s statement to Chief Craig while being driven to the jail should be suppressed because “it was improbable that [Chief] Craig could ensure [a]ppellant made a knowing, intelligent and voluntary waiver of his rights when said rights were given allegedly by another person in such a noisy, chaotic environment where [Chief] Craig admitted he didn’t hear the exact words being said.” Second, appellant asserts that appellant’s videotaped statement made at the jail should have been suppressed. However, appellant fails to develop this second argument in his brief on appeal. He makes vague statements that Detective Ken Howard knew that appellant was “not the brightest individual,” |isand that Dr. Dey-oub had diagnosed him with mild mental retardation, but appellant never cites to any authority or provides any persuasive argument that the formal waiver appellant signed at the jail was involuntarily or not knowingly made. We do not address arguments that are not supported by authority or convincing argument. Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004). Consequently, we address the merits of appellant’s waiver argument as to his patrol-car confession, which appellant articulated with proper argument and citation to authority in his brief on appeal.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). In Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003), we clarified the appropriate standard of review for cases involving a trial court’s ruling on the vol-untariness of a confession — we make an independent determination based upon the totality of the circumstances. We review the trial court’s findings of fact for clear error, and the ultimate question of whether the confession was voluntary is subject to an independent, or de novo, determination by this court. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008).
In order to determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, this court looks to see if the statement was the product of free and deliberate |19choice rather than intimidation, coercion, or deception. Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006). To make this determination, we review the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Id. Although mental capacity is a factor to be considered, standing alone it does not support suppression. See Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999). Additionally, the fact that the defendant is not a stranger to the criminal-justice system is a factor to be considered in determining whether a custodial statement was voluntarily made. Id. Again, we will reverse a circuit court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Flanagan, supra.
In Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002), we held that a suspect’s spontaneous statement while in police custody is admissible and that it is irrelevant whether the statement was made before or after Miranda warnings because a spontaneous statement is not compelled or the result of coercion under the Fifth Amendment’s privilege against self-incrimination. See also Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“Volunteered statements of any kind are not barred by the Fifth Amend ment and their admissibility is not affected by our holding today.”).
Here, appellant appears to be arguing that the spontaneous statements he made in the patrol car to Chief Craig while being transported to the jail should have been suppressed 12nbecause although Chief Craig testified that he heard Officer Scott give appellant his Miranda rights, it was noisy and chaotic and Chief Craig admitted he did not hear every single word Officer Scott said. Officer Scott testified that he read appellant his Miranda rights when he arrested him. Chief Craig testified that he took immediate custody of appellant from Officer Scott after overhearing him give appellant his rights. Chief Craig testified that appellant spontaneously confessed in the back of the patrol car, even after Chief Craig warned him it was best to wait until he got to the jail. There is nothing in the record to indicate that appellant did not understand his rights or that he did not hear the recitation of those rights by Officer Scott. Although appellant was diagnosed as mildly mentally retarded, there is not even a suggestion of coercion in the record. Mild mental retardation standing alone is not sufficient to require suppression. Furthermore, appellant’s confession in the patrol car was spontaneously given. Based on our holding in Fairchild, spontaneous statements are always admissible regardless of whether Miranda rights have been given. Based on the totality of the circumstances, we cannot say that the circuit court erred in this instance.
V. Photographic Identification
As a threshold matter, the State asserts that appellant failed to preserve his argument with regard to the pretrial photographic identification because he did not object to the in-court identification at trial. This court has held that a challenge to an out-of-court photographic identification is not preserved for review where, despite challenging the photo identification prior to trial, the appellant failed to object to the victim’s in-court identification.
Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006); see also Lewis v. State, 354 Ark. 359, 363, 123 S.W.3d 891, 893 (2003) (“To preserve a challenge to a pretrial photographic identification, we require a contemporaneous objection to in-court identification at trial.”); Goins v. State, 318 Ark. 689, 699-700, 890 S.W.2d 602, 607 (1995) (“Neither Goins nor Davis objected at trial on the basis that Ms. Price’s in-court identification of them was unreliable or tainted by the pretrial photographic lineup.”). In Ellis, as here, the defendant made a motion to suppress the photo identification which was denied during a pretrial hearing. However, because Ellis did not object to the in-court identification at trial, this court found that the argument was procedurally barred. Similarly, in this case, appellant did not object when Bitzelberger identified him in court as the perpetrator. Although appellant renewed his objection several times during the trial to the pretrial photographic identification, he did not contemporaneously challenge the victim’s in-court identification as tainted by what he alleged was a suggestive pretrial lineup. Consequently, appellant’s argument on this point is procedurally barred.
VI. Mistrial
For his final point on appeal, appellant argues that the circuit court abused its discretion in failing to grant a mistrial after Dr. Deyoub made a statement during his testimony referring to appellant’s prior criminal history. After being questioned as to whether appellant could understand the charges against him, Dr. Deyoub made the comment that “there were two separate cases that I questioned him about.... He had an explanation for the failure to | ¡^register that he gave.” Dr. Deyoub’s comment referred to charges appellant faced for failing to register as a sex offender. Appellant’s counsel did not make an immediate motion for mistrial. Rather, appellant’s counsel objected on the basis that the response was “outside the scope of my question.” The judge directed the doctor to answer only the question that was being asked. Appellant’s counsel completed his redirect examination, and the State asked several questions on cross-examination. After the doctor had been excused, appellant’s attorney moved for mistrial on the basis that Dr. Deyoub’s mention of appellant’s “failure to register” would prejudice the jury. The circuit court denied the motion and found that the doctor’s comment did not even make clear what the failure-to-register charge involved.
A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction to the jury. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Zachary v. State, 358 Ark. 174,188 S.W.3d 917 (2004). The circuit court has broad discretion in granting or denying a motion for a mistrial, and this court will not reverse the circuit court’s decision absent an abuse of discretion. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).
This court has consistently held that a motion for mistrial must be made at the first opportunity. See, e.g., Ellis v. State, 366 Ark. 46, 233 S.W.3d 606 (2006); King v. State, 361 Ark. 402, 206 S.W.3d 883 (2005); Rodgers v. State, 360 Ark. 24, 199 S.W.3d 625 (2004); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The reason for this is that a circuit | ^court should be given an opportunity to correct any perceived error before prejudice occurs. Ellis, supra. In Ellis, defense counsel did not make his motion for mistrial until the prosecutor had already asked three additional unrelated questions. Id. Furthermore, defense counsel contemporaneously objected to the question, arguing that what the witness had told the prosecutor outside the courtroom was not relevant, and that objection was sustained. Id. This court has previously held that it was proper to deny a motion for mistrial when the request was not made at the first opportunity, even though the motion had been preceded by defense objections sustained by the trial court. See, e.g., Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992); Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986).
Appellant claims that Dr. Deyoub’s statement was so egregious that the circuit court should have granted a mistrial. Appellant claims that the jury at that point saw him as a sex offender. However, appellant’s mistrial motion was not timely. Here, defense counsel contemporaneously objected to Dr. Deyoub’s comment, and the judge instructed the witness to answer the question asked, but defense counsel failed to move contemporaneously for a mistrial. Accordingly, pursuant to our precedent, it was not error for the circuit court to deny the motion as it was untimely made.
VII. Rule h-3(i) Review
In addition to the arguments raised by appellant, we have reviewed the record in this case for reversible error pursuant to Arkansas Supreme Court Rule 4-3(i) (2010), and have [ 24found none.
Affirmed.
. The jury acquitted appellant of the attempted rape charge.
. Appellant also includes a sentence in this section of his argument noting that the victim was detained for only a short period of time and was unharmed by appellant. Even characterizing that single sentence as appellant’s attempt to re-argue that the victim’s liberty was not substantially interfered with so as to satisfy the elements of kidnapping, an argument that appellant did preserve at trial by his motions for directed verdict, we would affirm on that point. The State clearly established that appellant taped Bitzelberger’s hands and feet with duct tape, restrained her at knife-point, and did not release her but left her alone and bound so that he could go out to her vehicle. Thereafter, she escaped. While she was only restrained for ten to fifteen minutes, that time period was dictated by the fact that she was able to get away, not because appellant released her. The evidence that the State presented was sufficient for a jury to find that appellant substantially interfered with the victim’s liberty.
. Mindful of the requirements of Rule 4 — 3(i) of the Arkansas Rules of the Supreme Court, we have reviewed appellant's second confession made at the jail, and we are convinced the waiver of rights signed by appellant was knowingly and voluntarily made. | [
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RITA W. GRUBER, Judge.
liAppellants in this case are the Lillian H. Ashton Trust and Lillian H. Ashton Brooks, in her capacity as trustee for the Trust. They appeal from a decree of the Izard County Circuit Court ordering Mrs. Brooks to specifically perform the contract entered into on April 7, 2007, by her as trustee and appellees, Kenny and Cohl Caraway. Pursuant to the contract, appellant accepted appellees’ offer to purchase certain property owned by the trust in Izard | ^County for $80,000, which was to be due and payable at closing. On appeal, appellant contends that the circuit court erred in ordering specific performance of the contract for three reasons: there was a failure of consideration and Mrs. Brooks revoked acceptance of appellees’ offer; Mrs. Brooks was not competent to enter into the contract in April 2007; and there was undue influence. We find no error and affirm the circuit court’s order.
This case began in early April 2007 when Cohl Caraway called Mrs. Brooks, who was at that time eighty-six years old and living in Downey, California. He asked her if she was interested in selling eighty acres that she owned in Izard County. According to Mr. Caraway’s testimony, after discussing the property for several minutes, Mrs. Brooks told Mr. Caraway that she needed time to consider the offer and to call her back in a few days. Mr. Caraway called her back on April 2nd or 3rd at about 8:00 a.m. Pacific Time. Mr. Caraway testified at trial that Mrs. Brooks said she was interested in selling the property; that she indicated she had spoken with “some people” in the area; and to máke her an offer. Mr. Caraway offered $1000 an acre, which she indicated sounded fair. He told his father, Kenny Cara way, about the verbal agreement and asked him to call Mrs. Brooks. Several days later Kenny Caraway called Mrs. Brooks and spoke with her about the land, which he said Mrs. Brooks was able to describe in detail. He explained that $500 or $1000 was the customary earnest money.
The Caraways then went to the office of Eric Bray, an attorney and licensed ab-stractor who owned Izard County Abstract, to fill out the Offer and Acceptance. Mr. Bray sent the | ¡¡contract to Mrs. Brooks. The Offer and Acceptance described the property, stated the price for sale was $80,000, and indicated that the earnest money to be paid by the Caraways was $1,000. Several days later, on April 10, 2007, the Caraways and Dennis Wilson, their partner in purchasing the property, went to Mr. Bray’s office and called Mrs. Brooks. According to the testimony of the Caraways and Mr. Bray, while on the speaker phone, the Caraways, Mr. Wilson, Mr. Bray, Mrs. Brooks, and appellant’s husband, Mr. Brooks, discussed the transaction. According to the testimony of the Caraways and Mr. Bray, Mrs. Brooks requested that the earnest money be changed from $1000 to $5000. Mr. Wilson wrote an earnest-money check for $5000 payable to the order of Izard County Abstract, dated April 10, and the amended Offer and Acceptance was faxed to Mrs. Brooks. She inserted the date April 4, 2007, as the date she accepted the offer; signed it as Lillian Brooks, Lillian Ashton Trust; and added in her handwriting the word “Trust” after the typewritten name Lillian Brooks under her signature. The contract was faxed back to Mr. Bray on April 10, 2007. Mr. Bray did not deposit the check into his escrow account, but merely held it pending closing or default. He testified that this was how he customarily handled such transactions.
On April 12, 2007, Mr. Bray received by fax from Stephen Drilling, Mrs. Brooks’s son, a handwritten letter signed by Mrs. Brooks stating as follows: “I hereby rescind the offer and acceptance signed by me for the sale of the Arkansas property dated by me, Lillian A. Brooks, April 11, 2007.” Included in the fax was also a letter from Mr. Drilling providing that he had the power of attorney to act in his mother’s behalf and that he was hereby rescinding the |4“0ffer and Acceptance” agreement signed by her, effective immediately. He stated further that, should the Caraways decide to contest the matter, he was prepared to litigate. He added, “Your clients’ took unfair advantage of an 85 year old woman, who is incompetent and ineom-pacitated [sic], in attempting to purchase this tract of property at far below its actual value.”
The Caraways filed a complaint for specific performance against the Trust and Mrs. Brooks in her capacity as trustee on April 18, 2007. Appellants raised the affirmative defenses of duress and coercion along with incompetence or incapacity of Mrs. Brooks to enter into a contract. They also moved for a directed verdict at trial, contending that there was no consideration for the contract because the $5000 earnest-money check was never deposited or negotiated and Mrs. Brooks rescinded her acceptance.
The trial court entered an order on February 23, 2009, ordering Mrs. Brooks, on behalf of the trust, to specifically perform the contract, finding there was valid consideration for the contract and that Mrs. Brooks failed to meet her burden to prove that she lacked the mental capacity to enter into the contract. Appellants filed this appeal.
This is an equity case, which we review de novo on appeal. MDH Builders, Inc. v. Nabholz Constr. Corp., 70 Ark.App. 284, 288, 17 S.W.Sd 97, 100 (2000). However, we will not reverse the circuit court’s findings of fact unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been lacommitted. Id. In reviewing a trial court’s findings of fact, we give due deference to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).
I. Consideration
For their first point on appeal, appellants contend that the circuit court erred in ordering specific performance of the contract because there was a failure of consideration when the earnest-money check was not deposited before Mrs. Brooks revoked her acceptance of appel-lees’ offer. The essential elements of a contract are competent parties, subject matter, legal consideration, mutual agreement, and mutual obligations. Stewart v. Combs, 368 Ark. 121, 126, 243 S.W.3d 294, 298 (2006). While appellants cite both Arkansas cases and cases from other jurisdictions in support of their argument, none of those cases concerned signed written contracts; rather, the cases concerned oral contracts, or unexecuted written contracts. Payment was necessary in those cases to show part performance in order to take the contracts out of the operation of the statute of frauds. See, e.g., Sossamon v. Davis, 271 Ark. 156, 607 S.W.2d 405 (1980); Rolfe v. Johnson, 217 Ark. 14, 228 S.W.2d 482 (1950); Santi v. Denver & Rio Grande Western R.R. Co., 21 Utah 2d 157, 442 P.2d 921 (1968); and Cooper v. Pedersen, 29 Ill.App.2d 384, 173 N.E.2d 549 (1961). Those cases are not relevant to this case.
In this case, the parties entered into a written contract, signed by both parties, pursuant to which appellees offered to purchase and appellant accepted and agreed to sell her property for $80,000. The Offer and Acceptance contract included an earnest-money clause that | ^provided as follows:
Buyer herewith tenders $5000 [$1,000 has been marked through and $5000 handwritten above it] as earnest money, to become part of purchase price upon acceptance. This sum shall be held by Agent and if offer is not accepted or if title requirements are not fulfilled, it shall be promptly returned to Buyer. If, after acceptance, Buyer fails to fulfill his obligations, the earnest money may become liquidated damages, which fact shall not preclude Seller or Agent from asserting other legal rights which they may have because of such breach.
This clause does not require the escrow agent to deposit or negotiate the buyer’s tendered earnest money. Further, appellants have cited no authority for their contention that the escrow agent’s failure to deposit the check into his escrow account constituted failure of consideration. Finally, as specifically noted by the trial court, there was no testimony presented that the check tendered by appellees to Izard County Abstract was insufficient or would not have been honored if presented. Indeed, Mr. Bray testified that he knew Mr. Wilson and that Mr. Wilson had never given him a check that was not good. We hold that the circuit court did not clearly err on this point.
II. Competence
For their second point on appeal, appellants contend that the circuit court erred in ordering specific performance of the contract because she was not competent to enter into a contract in April 2007 and one of the required elements for a valid contract is competent parties. See Hunt v. McIlroy Bank & Trust, 2 Ark. App. 87, 90, 616 S.W.2d 759, 761 (1981). Specifically, they point to the testimony at trial indicating that Mrs. Brooks was eighty-six years old when she signed the contract, suffered from Alzheimer’s disease, and was taking pain 17medication. There is a presumption of law that every person is sane, fully competent, and capable of understanding the nature and effect of her contracts. Union Nat’l Bank of Little Rock v. Smith, 240 Ark. 354, 356, 400 S.W.2d 652, 653 (1966). The burden of proving incompetency rested with appellant. Id.
In spite of the testimony offered by Mrs. Brooks’s three doctors, husband, and son concerning her lack of capacity, the circuit court determined that appellants failed to meet their burden to prove Mrs. Brooks was not competent to enter into the contract in April 2007. The circuit court stated that none of appellant’s doctors gave real testimony as to appellant’s exact mental capacity or state of mind at the time she signed the contract. The court further explained its finding as follows:
My ruling and findings are substantially influenced by particular and specific conduct on Mrs. Brook’s part that occurred contemporaneously with the date of the contract. First, Mrs. Brooks drafted and caused to be faxed to Izard County Abstract Company a well written, and in beautiful handwriting, letter purporting to “rescind” the subject contract. Secondly, Mrs. Brooks drafted, again in beautiful handwriting, a power of attorney for her son. The testimony at trial was that Mrs. Brooks was the author, and drafter, of these document. I find that in order to be able to even contemplate documents of this nature, her mental abilities had to be such that she was aware of the contract, that she had signed said contract, and that she owned land in Arkansas that the contract purported to sell. In addition, Mrs. Brooks insisted upon an increase in the amount of earnest money from $1000.00 to $5000.00, and she personally noted that increase in the amount of earnest money on the face of the contract.
Giving due deference to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony, we hold the circuit court did not clearly err in finding that appellants failed to prove Mrs. Brooks was unable, because she lacked the mental capacity, to enter into a valid and enforceable contract at the time she Rsigned the Offer and Acceptance.
III. Undue Influence
Finally, appellants contend that Mrs. Brooks was an elderly woman suffering from Alzheimer’s disease and there was undue influence by appellees in convincing her to sell her property below its fair market value. The circuit court found that the contract was negotiated over the telephone and that neither appellant nor her witnesses articulated what conduct on the part of appellees rose to the level of duress or coercion. Appellants point to no specific testimony demonstrating undue influence on the part of appellees. We note that Cohl Caraway testified that he did not know Mrs. Brooks’s age or physical condition when he spoke with her and that she appeared to know the property well. Kenny Caraway testified that there was nothing in his conversation with Mrs. Brooks that led him to conclude she did not know the value or extent of her land or that she suffered from any cognitive or mental deficiency. We find no clear error on the part of the circuit court on this point.
Affirmed.
MARSHALL and HENRY, JJ„ agree.
. Throughout this opinion we refer to one of the appellees as "Cohl” Caraway because the complaint filed by Mr. Caraway's attorney to begin this action refers to "Cohl,” the style used in the circuit court (except for the final order) refers to "Cohl,” the style in the notice of appeal and briefs filed with this court refer to "Cohl,” and appellees’ references in their brief are to "Cohl.” However, we note that the contract used the name "Kohl” Caraway, Mr. Caraway’s signature on the contract is "Kohl,” the transcript of testimony from the trial refers to "Kohl," and the circuit court’s decree that was appealed to this court refers to "Kohl.” | [
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DONALD L. CORBIN, Justice.
|!Appellant, Farmers Union Mutual Insurance Company, Inc., appeals the order of the Pope County Circuit Court granting the motion of Appellees, Randall and Heather Robertson, to certify'their case as a class action. As this is an interlocutory appeal from an order granting class certification, our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(a)(8) (2010). See Ark. R.App. P.-Civ. 2(a)(9) (2010). Appellant asserts three points for reversal of the order granting class certification. We find no merit and affirm.
Appellees contracted with Appellant for an “actual cash value” homeowner’s insurance policy on their real and personal property located in Atkins, Arkansas. The insurance policy provided coverage for the replacement and/or repair of Appellees’ property, and defined “actual cash value” as “replacement cost of the property at the time of loss, less depreciation, not exceeding the amount it would cost to repair or replace with material of like kind and quality.” Appellees’ property was damaged in a tornado on February 5, 2008. Appellant 12adjusted Appellees’ repair estimates and depreciated both materials and labor. Appellant tendered payment of Appellees’ claim for damages to real and personal property, and Appellees filed suit in their individual capacity alleging that Appellant had improperly paid their personal-property claim and had illegally depreciated the labor portion of their real-property claim.
Appellees later amended their complaint twice and filed a class-action complaint on behalf of themselves and similarly situated Arkansans, alleging that Appellant had a common practice of depreciating the cost of labor when adjusting real-property damage. According to the second amended complaint, Appellees sought a declaratory judgment and a request for judgment, pursuant to Ark.Code Ann. § 23-79-208 (Supp.2009), for failure to timely and properly pay an insurance claim. Appellees moved for class certification. The circuit court held a hearing where it heard argument of counsel and later entered an order granting the motion for class certification. This interlocutory appeal followed.
Rule 23 of the Arkansas Rules of Civil Procedure governs class actions and provides, in pertinent part:
(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions | .-¡affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. At an early practicable time after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. For purposes of this subdivision, “practicable” means reasonably capable of being accomplished. An order under this section may be altered or amended at any time before the court enters final judgment. An order certifying a class action must define the class and the class claims, issues, or defenses.
Ark. R. Civ. P. 23(a), -(b) (2010).
This court has reviewed the requirement of Rule 23 on numerous occasions, and our law is well settled that the party seeking certification must establish six requirements: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Ark. Media, LLC v. Bobbitt, 2010 Ark. 76, 360 S.W.3d 129; Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008); Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997). The determination that the class-certification criteria have been satisfied is a matter within the broad discretion of the circuit court, and this court will not reverse the circuit court’s decision absent an abuse of that discretion. Ark. Media, LLC, 2010 Ark. 76, 360 S.W.3d 129. In reviewing a class-certification order, this court focuses on the evidence in the record to determine whether it supports the circuit court’s conclusion regarding certification. Id. Neither the circuit court nor this court shall delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met. Id. A circuit court may not consider whether the plaintiffs will ultimately prevail or even whether they have a cause of action. Id. We, thus, view the propriety of a class action as a procedural question. Id.
|4I. Typicality and Adequacy
As its first argument for reversal, Appellant contends that the circuit court abused its discretion in certifying the class because Appellees did not demonstrate that their claims are typical of the proposed class or that they are adequate class representatives. Appellant argues that Appellees failed to satisfy the typicality requirement because they have a claim for damage to personal property that the class members do not. Appellant argues further that Appellees’ claims are not subject to unique defenses such as accord and satisfaction, waiver, and estoppel that are applicable to the class members’ claims. Appellant contends that because Appellees’ claims are atypical, they are not adequate class representatives.
At the outset, we address the part of Appellant’s argument concerning the personal-property claim. Appellant’s argument is based on the premise that Appel-lees have a pending claim for personal-property damage that is unique to Appel-lees while the putative class members only have claims for real-property damage. Appellant contends that Appellees’ personal-property claim alone makes their claim atypical of the class because the common issue of depreciation of labor does not affect the personal-property claim, and thus both the claim and the defenses Appellant would raise to it are unique to Appellees. Appellant contends further that this unique and pending personal-property claim is larger in amount than Appellees’ real-property claim, and therefore creates a potential conflict of interest for Appellees as class representatives because it carries with it the opportunity for Appellees to |fiadvance their larger and unique personal-property claim to the detriment of the real-property claim shared with the class.
Despite all of Appellant’s contentions to the contrary, the record before us simply does not demonstrate that Appellees have a personal-property claim, whether it be pending in this suit or in a separate suit. Our reasoning for this conclusion is twofold.
First, although Appellees did raise a claim for personal-property damage in their original complaint, that complaint has been twice amended. Both times, the amended complaints did not incorporate by reference the original complaint. And both times, the amended complaints did not raise a claim for personal-property damage. This court has stated with approval the “widely recognized doctrine that an amended complaint, unless it adopts and incorporates the original complaint, supersedes the original complaint.” James v. Williams, 372 Ark. 82, 88, 270 S.W.3d 855, 860 (2008) (quoting Edward J. DeBartolo Corp. v. Cartwright, 323 Ark. 573, 577, 916 S.W.2d 114, 116 (1996)). Because the personal-property claim asserted in the original complaint was not incorporated by reference into the amended complaints and was not raised anew in the amended complaints, it is not a pending claim in the present suit. See id. It necessarily follows then, that Appellant cannot now rely on the superseded personal-property claim to support its contention that it is a unique claim that defeats the typicality requirement for class certification, or for any other reason. See id. Appellant’s reliance on Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997), which held that a voluntary nonsuit is not effective without entry of judgment, is |fiwholly misplaced in the present case because Blaylock did not involve the effect of amended pleadings on a claim raised in an original complaint.
Second, it is significant that this court previously refused Appellant’s request to take judicial notice that the personal-property claim was raised anew in a related case and then nonsuited. We refused to do so because the circuit court did not consider the pleadings in that related case in making its decision in the present case. In Farmers Union Mut. Ins. Co. v. Robertson, 2009 Ark. 435, at 2, 2009 WL 3047542 (per curiam), this court stated:
Farmers also asks this court to take judicial notice on appeal of various pleadings filed in a related case. Under appellate jurisdiction, this court reviews a decision of a lower court. Smith v. State, 363 Ark. 456, 457, 215 S.W.3d 626, 627 (2005). The pleadings Farmers asks us to consider were not considered by the circuit court in making the decision that is before us on appeal. How those pleadings might have affected the circuit court’s decision is unknown. We do not decide an issue for the first time on appeal. Id. Appellate jurisdiction does not permit this court to retry cases or make findings of fact, hooper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 227-28, 729 S.W.2d 156, 157 (1987). The motion to take judicial notice is denied.
Despite our previous denial of the request to take judicial notice of the related lawsuit, Appellant continues in its brief to ask this court to consider it on appeal. For the same reason previously expressed, lack of a record indicating the trial court considered the related suit below, we again decline to do so. We discuss the trial court’s lack of consideration of the personal-property claim in further detail under Appellant’s second point on appeal.
In summary, the record before us simply does not demonstrate that Appellees have a claim for personal-property damage that is pending, either in this suit or in a related one. We | .¡therefore limit our analysis of Appellant’s first point on appeal to the contention that the presence of unique defenses defeats the typicality and adequacy requirements.
We recently addressed a challenge to the typicality requirement and recited the following:
In Summons v. Missouri Pacific Railroad, this court adopted the following explanation of Ark. R. Civ. P. 23’s typicality requirement:
Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiffs injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.
306 Ark. 116, 121, 813 S.W.2d 240, 243 (1991) (quoting H. Newberg, Class Actions § 3.13 (2d ed.1985) (footnotes omitted)). When analyzing this factor, we focus upon the defendant’s conduct and not the injuries or damages suffered by the plaintiffs. See FirstPlus Home Loan Owner 1991-1 [1997-1] v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008). Moreover, the class representative’s claim must only be typical and not identical. See Asbury Auto. Group, Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006).
Ark. Media, LLC, 2010 Ark. 76, at 8, 360 S.W.3d 129, 134-35.
In the present case, the circuit court found that the typicality requirement had been met, stating in its order as follows:
Here, the claims of the Plaintiffs are representative and typical of the class as a whole. When it adjusted the Plaintiffs’ property damage claim, Farmers Union depreciated the cost of labor. Farmers Union admits that the definition of Actual Cash |sValue is identical in each of the class member’s ACV Policies; and, it admits that it has adjusted the claims of the class members in the same way that it adjusted the Plaintiffs’ claims, i.e., by depreciating the cost of labor. Therefore, the same conduct that gives rise to the Plaintiffs’ claims (Farmers Union’s depreciation of the cost of labor) gives rise to the proposed class members’ claims, satisfying typicality.
In determining that Appellees had satisfied the typicality requirement, the circuit court correctly focused on the conduct of Appellant. Appellees, as class representatives, and the potential class members allege the same legal theory, which is breach of the actual cash value insurance policy, and the same unlawful conduct by Appellant, which they describe as depreciating the cost of labor as well as materials when adjusting claims under the actual cash value insurance policies. Indeed, as the circuit court found, Appellant admitted that it adjusted the claims of the potential class members in the same way that it adjusted Appellees’ claims — by depreciating the cost of labor as well as the cost of materials. Thus, although Appellant argues that Appellees as class representatives may not be subject to the same defenses to which some of the putative class members may be subject, this court has repeatedly rejected such arguments, holding that a defendant’s individual defenses or claims against particular class members or subsets of class members do not defeat the initial inquiry. See, e.g., Ark. Media, LLC, 2010 Ark. 76, 360 S.W.3d 129; The Money Place, LLC v. Barnes, 349 Ark. 518, 78 S.W.3d 730 (2002). We reiterate that “[o]ur caselaw is clear that the essence of the typicality requirement is the conduct of the defendants and not the varying fact patterns and degree of injury or damage to individual class members.” BNL Equity Corp. v. Pearson, 340 Ark. 351, 357-58, 10 S.W.3d 838, 842 (2000). Thus, we conclude that, because Appellees’ claim as 13class representatives arises from the same course of conduct that also gives rise to the claims of other potential class members, and because those claims are based on the same legal theory, the circuit court did not abuse its discretion in concluding that the typicality requirement was satisfied.
Finally, with respect to Appellant’s first point on appeal, we note that while Appellant uses the word “adequacy” within its argument, Appellant does not per se challenge the three components of the adequacy requirement of Rule 23(a)(4) that this court has delineated as follows:
We have previously explained that the three elements of the adequacy requirement are: (1) the representative counsel must be qualified, experienced, and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation. Jacola, 330 Ark. at 275, 954 S.W.2d at 904.
FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 477, 277 S.W.3d 576, 585 (2008). Appellant simply makes the assertion that Appellees’ claims are atypical, therefore they cannot be adequate class representatives. As we have previously affirmed the trial court’s decision that Appellees’ claims are typical, we find no merit to this challenge to the adequacy requirement. Relevant to the second element of Rule 23’s adequacy requirement, Appellant does argue, as we noted earlier, that Appellees’ claim for damage to personal property creates a potential conflict of interest between Appellees as the class representative and the class. However, as |inwe have previously concluded that any claim of Appellees for personal-property damage is not properly before us on this record, we need not address this argument any further.
II. Meaningful Review
As its second point for reversal, Appellant contends that the circuit court abused its discretion by not undertaking enough of an analysis to enable us to conduct a meaningful review of the findings of typi cality and adequacy. Appellant acknowledges that this court does not require a rigorous analysis of Rule 23, but argues that some analysis of all salient facts is nevertheless required and that the circuit court failed to make any analysis of Appel-lees’ personal-property claim. Appellant contends that the circuit court’s references to Appellees’ lesser claim for damage to their real property does not cure the lack of analysis as to how their greater claim for damage to personal property affects the requirements of typicality and adequacy. Appellant describes this as a failure by the circuit court to “address the elephant in the room” that is “fatal to the validity of [the circuit court’s] order and constitutes an abuse of discretion.”
As we noted previously when considering Appellant’s first point on appeal, the record before us does not demonstrate that Appellees have a pending claim for damage to their personal property. Thus, as was much of Appellant’s first point on appeal, its second point on appeal is based entirely on a false premise — there is simply no pending personal-property claim on this record that the circuit court failed to analyze. In short, we cannot say it was an abuse of discretion for the circuit court to fail to analyze a claim that no longer existed.
| ^However, even assuming arguen-do that such a personal-property claim was pending on the record before us, there is yet another obstacle to our reaching the merits of this argument on appeal. Appellant’s failure to timely request specific findings in regard to the personal-property claim’s effect on Rule 2B’s requirements of typicality and adequacy operates as a waiver of our review of this issue on appeal. When addressing the interplay between Rule 23 and Rule 52 of the Arkansas Rules of Civil Procedure, this court has consistently held that an appellant who, pursuant to Rule 52, fails to timely request specific findings in regard to Rule 23 requirements either prior to or after the entry of the order of certification waives appellate review of issues related to those findings. Baptist Health v. Haynes, 367 Ark. 382, 240 S.W.3d 576 (2006); Lenders Title Co. v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003); Jacola, 330 Ark. 261, 954 S.W.2d 898. While the supplemental record does indicate that Appellant filed with the circuit court a proposed order addressing the personal-property claim, which the circuit court rejected, Appellant had ten days after the order of certification was entered to ask the circuit court to make additional findings with respect to the effect of the personal-property claim on the Rule 23 requirements. The record does not indicate that Appellant ever made such a request.
III. Predominance and Superiority
As its third point for reversal, Appellant contends that the circuit court abused its discretion in certifying the class because Appellees did not prove the requirements of predominance and superiority. Appellant argues that, due to individualized issues and | ^affirmative defenses, class certification is not superior to thousands of individual actions, nor does the common legal question predominate over the individualized issues. Thus, according to Appellant, although there may be a common question — whether Appellant can depreciate labor costs pursuant to the policy language — a determination as to whether and how this was done as to each insured depends upon a separate inquiry into the facts of each claim such that the requirements of predominance and superiority are therefore defeated. Thus, Appellant con tends that a review of each potential class member’s situation would be necessary in order to determine whether depreciation was applied, in what percentage it was applied, and the amount of labor depreciation compared to materials depreciation.
As part of this third point on appeal, Appellant describes our class-certification caselaw as a “certify now, decertify later” approach. Appellant contends that this approach effectively eliminates the requirements of predominancy and superiority from the test for class certification. Appellant asks us to overrule this approach, contending that Arkansas should not stand alone in adhering to a certify now, decertify later rule that has long been rejected by virtually all other jurisdictions.
| is A. Predominance
This court has stated that the starting point in examining the issue of predominance is whether a common wrong has been alleged against the defendant. ChartOne, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008). This court explained further that
[i]f a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement of Rule 23 is satisfied even if the circuit court must subsequently determine individual damage issues in bifurcated proceedings. We have recognized that a bifurcated process of certifying a class to resolve preliminary, common issues and then decer-tifying the class to resolve individual issues, such as damages, is consistent with Rule 23. In addition, this court has said that
[t]he predominance element can be satisfied if the preliminary, common issues may be resolved before any individual issues. In making this determination, we do not merely compare the number of individual versus common claims. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of bifurcated proceedings.
Id. at 286, 283 S.W.3d at 584 (citations omitted) (quoting Asbury Auto. Group, Inc. v. Palasack, 366 Ark. 601, 610, 237 S.W.3d 462, 469 (2006)).
Accordingly, our inquiry is whether there is a predominating question that can be answered before determining any individual issues. Here the circuit court found that Appellant had admitted that the operative provisions of its actual cash value policies are identical among the policies issued to the putative class members. Thus, the circuit court concluded that whether Appellant was able to depreciate labor pursuant to the contractual terms of its policies would be the same and require the same proof.
|14We see no abuse of discretion in this conclusion. The preliminary, common issue of Appellant’s liability under the contract or policy language must be decided prior to any individual issue of damages. The requirement that the common issue predominate is therefore satisfied, and the circuit court did not abuse its discretion in this regard, even if the individualized issues of damages later require bifurcation or the creation of subclasses.
B. Superiority
Rule 23(b) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” As this court pointed out in ChartOne, we have repeatedly held that the superiority requirement is satisfied if class certification is the more efficient way of handling the case, and it is fair to both sides. See ChartOne, Inc., 373 Ark. 275, 283 S.W.3d 576. Where a cohesive and manageable class exists, this court has held that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. See id. This court has further stated that when a circuit court is determining whether class-action status is the superior method for adjudication of a matter, it may be necessary for the circuit court to evaluate the manageability of the class. See id. Furthermore, the avoidance of multiple suits lies at the heart of any class action. See id.
Here, the circuit court found that the resolution of the common predominating issues throughout Appellees’ and the class members’ claims “in one consolidated class action is superior to litigating hundreds or thousands of individual lawsuits on the same common 11fiissues.” The circuit court observed that “[t]hese lawsuits and trials would require each class member to pursue his or her claim individually, entail needless and expensive duplication, waste the resources of both the parties and the Court, and risk inconsistent adjudications.” The court observed further that “[t]he unnecessary burden of filing thousands of individual administrative complaints [with the Arkansas Department of Insurance] to resolve a single precise and common issue on contract interpretation is illogical.”
As for manageability of the class, despite Appellant’s assertions to the contrary, the circuit court did make the following findings:
[T]he management of this case as a class action has not been, and should not be difficult. Unlike many other class actions, there will be no difficult reconciliation of the laws of many different states; only Arkansas law applies. Further, considering that every class member is seeking to enforce the same Arkansas statutes there will be no individual issues, at this juncture, to strain manageability. Issues common to the class predominate over those affecting only individual members, and prosecuting this case as a class action is therefore superior to other available methods of proceeding. Accordingly, Plaintiffs have established that the proposed class meets the superiority requirement of Rule 23(b).
It is clear that the circuit court considered the manageability of the proposed class and concluded that the superiority requirement was satisfied. Accordingly, we cannot say the trial court abused its discretion. As this court has made abundantly clear, a circuit court can always decertify a class should the action become unmanageable. See Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008).
With decertification in mind, we now address Appellant’s request that we overrule what Appellant terms our “certify now, decertify later” approach to class-action litigation. 11fiAppellant argues that allowing certification where the class members’ claims likely cannot be tried fairly due to individualized inquiries regarding liability and damages creates significant and unfair pressure on defendants to set- tie. Appellant argues that our approach of certifying a class that will have to be de-certified later creates “serious constitutional due process problems.” This court has stated the following when previously rejecting this argument:
Finally, we note that Op-Tech argues that allowing this case to proceed as a class action would violate their rights to due process because it would result in separate juries addressing individual issues. Appellees counter that this court has recognized that a bifurcated process of certifying a class to resolve preliminary, common issue, followed by a de-certified process to resolve individual issues is consistent with Rule 23. We agree.
We recently addressed and rejected a party’s argument that a bifurcated proceeding would result in a constitutional violation in Bryant, 374 Ark. at 52, 285 S.W.3d at 644, and stated:
Nor does the possibility of bifurcation render the instant class certification unconstitutional. As we have previously held, we do not know at the point of certification whether more than one jury would ultimately be necessary, and we will not speculate on the question of the inevitability of bifurcated trials or issue an advisory opinion on an issue that well may not develop. See, e.g., BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000).
Accordingly, there is no merit to Op-Tech’s argument in this regard.
Teris, LLC, 375 Ark. at 83-84, 289 S.W.3d at 73. Likewise, for the foregoing reasons expressed in Teris, LLC, General Motors Corp., and BNL Equity Corp., we reject Appellant’s due-process argument in the present case.
As for Appellant’s assertion that our approach to class-action certification is unfair and inefficient, we repeat the following:
|17We are further convinced that a class action is fair to both sides. As we said in SEECO, Inc. v. Hales, supra, [330 Ark. 402, 954 S.W.2d 234 (1997)] and Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991), even if the trial court eventually decides that individual claims have to splinter in bifurcated proceedings, resolution of the issue of wrongful conduct common to all class members can achieve real efficiency as a starting point. We also note that there is a real benefit to the appellants in a class action in that they have the opportunity to nip multiple claims in the bud with common defenses.
BNL Equity Corp., 340 Ark. at 362, 10 S.W.3d at 844. Accordingly, we adhere to our well-settled precedent that allows class actions to be certified first when there are predominating threshold issues of liability common to the class, even though there may be individualized issues that come later requiring either the creation of subclasses or decertification altogether. The facts of this case present us with no federal due-process concerns that require our reconsideration of this approach. And, although Appellant asserts that Arkansas “stands alone” in its approach, we have not been presented with any convincing argument that gives us cause to reconsider our prior decisions concluding that our approach is what we believe to be the more efficient method. We therefore decline Appellant’s request to overrule our prior caselaw on this approach to certifying class actions.
The order granting Appellees’ motion for class certification is affirmed.
. These are the individual issues that Appellant alleges exist: the ratio of labor costs to material costs varies by geographic location; the wage component of labor costs vary by geographic location; the effect of supply and demand on labor and material costs; adjustment methods vary depending on useful life of what is being replaced — e.g., a roof, siding, plumbing, doors or windows; the determination of the remaining useful life of a roof or siding varies on an individual basis; Appellant's use of more than one adjustment company; individual negotiations by and between each insured and Appellant; and the professional discretion used in paying each claim. | [
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Lyle Brown, Justice.
Appellant David W. Searcy appeals from a conviction for grand larceny for allegedly stealing a triangle micrometer and three telescope gauges. For reversal appellant attacks the validity of a search warrant, the admission of stolen articles found in his possession which were in addition to the items described in the charge, and the voluntariness of a purported confession.
Pursuant to a search warrant, the premises of Searcy were searched and no stolen property was recovered. Following the search, Searcy was detained for investigation and taken to the county jail. Searcy advised the officers upon questioning that he had stored the property in his parents’ garage at an address other than his own. Searcy called his mother, directed her to unlock the garage, and proceeded with the officers to the parents’ home. In the garage the officers discovered the micrometer, gauges, and several other recently stolen items of personal property which Searcy admitted stealing. All items were placed in a box and taken to headquarters. The trial court permitted the introduction into evidence of the “other items” in the box. A written confession given on the night of detention was also admitted in evidence. The points relied upon for reversal will be italicized and discussed.
I. The court erred in failing to suppress the search warrant and the evidence acquired from the service of the search warrant.
The weakness in Point I rests with the fact that the search warrant is not involved in the case. No property was seized as a result of the search at the premises of appellant. The only property seized and introduced was the property which the officers found in the garage of appellant’s parents. A search warrant was obtained for the search of the parents’ premises.
II. The court erred in failing to suppress the confession of the defendant.
Officer Saxton testified that he gave Searcy the Miranda warnings when he first entered the suspect’s house with a search warrant. Shortly thereafter at headquarters, where the investigation continued, a radio operator typed out the warnings; they were read to the suspect and in turn he read them; thereupon he affixed his signature. All that procedure was prior to any questioning. Searcy admitted being given a part, but not all, of the Miranda warnings at his home. He also admitted signing the waiver prepared by the radio operator but denies knowing the contents. The trial court, after a full Denno hearing, ruled the signed confession admissible. We have evaluated the court’s findings and made an independent determination of the issue of voluntariness in accordance with the procedure explained in Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968). We do not disturb the trial court’s finding.
III. The coiwt erred in permitting the introduction of other goods allegedly stolen which were not incorporated in the charge.
When the garage was searched the officers found a hand drill and other tools which apparently had been taken from the prosecuting witness’ premises at Ben tonville at the same time the micrometer and gauges were stolen. There was also a box of rifle .shells which was missing from the bus station in Rogers.- ■ The court permitted introduction of these “other items” with a cautionary instruction. The jury was told that the defendant was not being tried for theft of these “other items”; and that “they are not to be considered for any other purpose except as a circumstance to be considered in this case along with all the other evidence.” There was no objection to the particular form of the cautionary instruction.
As to the hand drill and other tools taken from the prosecuting witness simultaneously with the micrometer and telescopic gauges, we hold they were properly admissible. See Wilson v. State, 165 Ark. 148, 263 S.W. 390 (1924). In Lynch v. State, 95 Ark. 168, 128 S.W. 1053 (1910), defendant was charged with the theft of a diamond ring. The ring was stolen along with other items of jewelry. It was there held competent to show defendant had possession of the other jewelry.
Now as to the box of rifle shells reportedly missing from the bus station at Rogers. The general and majority rule is that evidence of the possession of stolen property other than that involved in, or connected with, the charged larceny, is not admissible in the state’s case in chief. 32 Am. Jur., Larceny, § 134; 22 A CJS, Criminal Law, § 691(9)b. We can perceive no connection, even remote, between the larceny at the bus station and the larceny for which the defendant was being tried. Of course, if there was some relation between the two thefts, the shells might well have been admissible, otherwise not. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). The facts here are essentially the same as in the case of Yelvington v. State, 169 Ark. 359, 275 S.W. 701 (1925). It was shown that Yelvington was in possession of the mules which formed the basis of the charge. A state witness testified that he also saw in appellant’s possession some sets of harness which were shown to have been stolen from still another party. The theft of the harness occurred at a different time and place, having no connection with the theft of the mules. Admission of the testimony relative to the theft of the harness caused a reversal.
Reversed and remanded.
Fogleman, J., dissents. | [
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Lyle Brown, Justice.
Appellants were plaintiffs below. They brought suit alleging a four-sixths interest in four lots in Little Rock and contended that their uncle, Eugene Ellis, owned the other two-sixths interest. Appellee Eugene Ellis asserted full ownership on the theory that the record title in the name of plaintiffs ’ father was actually a trusteeship for Eugene’s benefit. Alternatively, Eugene sought a lien for expenditures for improvements. The trial court rejected Eugene’s theory of trusteeship but granted his alternate prayer for a lien. Mrs. Baker, guardian of the four children, appealed from the award of the lien. There was no cross-appeal by Eugene.
The real parties in interest are four surviving children of Leonard Ellis (plaintiffs), and Eugene Ellis, defendant and surviving brother of Leonard Ellis. In his will, Leonard devised the involved lots to Eugene provided Eugene outlived Leonard; otherwise, the lots would go to Leonard’s wife. In that will Leonard did not mention the minor plaintiffs. He did make a nominal bequest to his other two children. Absent being mentioned in the will, these four children claim their right to inherit each an undivided one-sixth interest. They conceded that their uncle, Eugene, received the other two-sixths interest by virtue of the will. Plaintiffs alleged the property not to be susceptible of division in kind and asked for a sale and division of the proceeds. Eugene contended that the property was vacant when purchased in the name of Leonard; that the title was held for Eugene’s benefit in Leonard’s name because the latter had a credit rating; that Leonard raised the money to pay for the lots and the improvements subsequently placed thereon by Eugene but that Eugene repaid the advancements.
The finding of the trial court that Leonard did not hold the property in trust for Eugene is not before us. That is for the reason that Eugene elected not to appeal from that ruling.
The only question on appeal is whether Eugene’s right to a lien for improvements can be justified in law and by the evidence. The undisputed testimony is to the effect that Leonard (now deceased), Eugene, and another brother, combined their labors in improving the lot, in razing other buildings for material, and in actually constructing the house. The lot was in Leonard’s name; he obligated himself in the total sum of $6200 in raising finances for materials and construction; no other brother was asked to sign those loan commitments ; and, by the terms of the will, Leonard expressed his individual ownership of the property by making provisions for its disposition. The facts of the case are that Eugene contributed his labor to construction and lived in the house for many years; the building was located on land to which Eugene had no semblance of col- or of title; and he at no time, during a ten-year period, made request of Leonard for any title or instrument of assurance. It is not uncommon, even for uneducated people, to ask for some written evidence of their interest. i
One who believes himself to be the legal or equitable owner and improves the land of another, under color of title, can recoup the cost of the improvements. Ark. Stat. Ann. § 34-1423 (Repl. 1962). Color of title generally connotes an instrument which by apt words of transfer passes what purports to be a title but which is defective in form. Teaver v. Akin, 47 Ark. 528, 1 S.W. 772 (1886). Our record is void of evidence that any instrument of writing ever existed. The claimant, Eugene, simply relied on oral testimony that the lot was bought for him in Leonard’s name and that payments made to the lender of purchase and construction money were made from funds which Leonard withheld from Eugene’s wages. It may be significant that the fair rental value of the house was said to be $75 per month and at no time were the monthly payments equal to the rental value. It poses a reasonable deduction that Eu gene was actually paying rent instead of purchase money payments.
Reversed and remanded. | [
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J. Fred Jones, Justice.
The appellant father and appellee mother were divorced by decree of the Benton County Chancery Court on December 29, 1960, and the custody of their two year old daughter was awarded to the appellee. This appeal is from a subsequent order of the court modifying its original decree as to child support and visitation rights previously awarded.
Under the original, decree , in 1960, appellant was ordered to pay $60.00 per month for the support of the child and he was awarded the right to visit the child at all reasonable times. On October 4, 1962, the decree was modified oh motion of the appellant, and in addition to visitation rights at all reasonable times, he was awarded custody of the child, in the home of his mother for three hours from 2:00 p.m. to 5:00 p.m. on one day each week.
The award for child support was subsequently reduced to $45.00 per month and on December 8, 1966, at a hearing on' a contempt citation, the court found that appellant was not guilty of contempt but that he was delinquent in the amount of $500.00 for child support prior to October, 1962, as well as for all the calendar years 1965 and 1966. Appellant was ordered to pay the $500.00 delinquency which had accrued prior to 1962, but lie was relieved of the payments due for the calendar year 1965 and the first eight months of 1966. He was ordered to make the payments for the last four months of 1966. In December, 1966, appellant paid $90.00 and in January, 1967, he paid $90.00, but apparently has made no further payments. The appellee had remarried, and on February 4, 1967, she and the child moved with her present husband to Denver, Colorado where he is stationed in the air force.
On February 17, 1967, the appellant, who still lives in Benton County, filed a motion alleging, as the only change in the condition of the parties, that he had paid child support through December, 1967, and that since that time he had been denied visitation rights with his child; that the appellee had removed the child from the jurisdiction of the court, and from the state of Arkansas, thereby depriving him of his rights of visitation awarded in the original decree. Appellant prayed that he be relieved of monthly payments for child support until the child is returned to the jurisdiction of the court. The appellee responded to the motion and following a hearing on January 18, 1968, the chancellor modified the original decree by the order appealed from which is designated “Modification of Decree.”
Under the order appealed from, the appellee was ordered to return the child to Benton County for visits with the appellant for one week during Easter vacation, one week during summer vacation, and for one week during Christmas vacation. The appellant was ordered to continue support payments at $45.00 per month, and judgment was entered against him for the $500.00 delinquent child support payments which had accrued prior to October, 1962, and also for $585.00 representing delinquent payments for thirteen months from December 8, 1966, through January 8, 1968.
Under the argument in appellant’s brief, he states the substance of his contention as follows:
“The appellee has admitted that the child is in Colorado and the appellant takes the position that it would not be fair or equitable to give to the appellee a judgment for $585.00 for the time the child has been in Colorado and the appellant being deprived of his rights under the order of the court.
“The appellant takes a further view that he should be relieved of future payments until the child is returned to Benton County, Arkansas.”
In support of his argument appellant cites the case of Antonacci v. Antonacci, 222 Ark. 881, 263 S.W. 2d 484. That case is very similar in many respects to the case at bar, but sustains the chancellor’s order rather than appellant’s contention. In the Antonacci case, the appellant worked for a railroad company in Arkansas and his former wife took their child to California. In affirming the decree of the chancellor in the Antonacci case, this court said:
“In addition to the fact that appellant can get a pass to travel by train to California, the court reduced the maintenance payments by half and refused to give the appellee judgment for $500 for unpaid installments of maintenance. All of this will enable the appellant to visit the child in California without any extraordinary expense to himself.
“Appellee has a job that she can go to in California where she earns from $65 to $70 per week, whereas here in Arkansas she can only earn about $32.50 per week. Appellee much prefers to live in California; she is happy there and appears to take good care of the child. We do not think the Chancellor erred in refusing to require appellee to remain somewhat a prisoner in Arkansas because of the unfortunate divorce proceeding.
“No doubt in refusing to allow the appellee judgment for $500 for unpaid installments of maintenance the conrt took into consideration the fact that permission was given for the child to be taken ont of the state and there might be some expense to appellant in the event he wished to visit the child in California.”
The appellant, in the case at bar, is a track driver. He works regularly and his work occasionally takes him through Denver, Colorado where his former wife lives. She has not refused him visitation rights in Denver, and he has made no effort to see his child when in Denver giving as his only excuse in failure to do so, that it would cause him to he late with his load. A parent having custody of a child is ordinarily entitled to move to another state and take the child with her. Ising v. Ward, 231 Ark. 767, 332 S.W. 2d 495. The appellee, in the case at bar, was not restricted to territorial limits in the custody awarded her in the original decree, hut she was ordered to return the child to Arkansas for one week visits three times each year, and there is no evidence in the record that she will not comply with that order.
At some stage of the proceedings the chancellor reduced the child support payments from $60.00 per month to $45.00. At the end of the first year following the divorce, appellant was delinquent in payments of child support in the amount of $500.00. The support payments for the calendar years 1962, 1963 and 1964 are not mentioned in the record, hut appellant was totally delinquent for the calendar years 1965 and 1966. The record indicates that the appellant has paid nothing toward the support of his child since 1964 except a $90.00 payment in December, 1966, and $90.00 in January, 1967. The chancellor relieved the appellant from the payment of twenty of these delinquent monthly payments, amounting to $900.00, before the appellee remarried and moved to Denver, and the appellant has never paid any of the delinquencies as ordered by the court except the two $90.00 payments.
Appellee’s mother lives in Benton County and appellee and the child visited there in August, 1967. They attempted to advise appellant of the impending visit by mail. Appellant left Benton County with his mother in July, 1967 for a visit in Canada. He did not return until September and did not advise the child he was going. Although he drove his Cadillac automobile to Canada and back through Wyoming, Oklahoma and then to New Orleans via Rogers in Benton County, he denies that he passed through Denver or made any effort to do so or to see his child at all during this extended vacation trip.
We recognize that all of the record in the entire divorce proceedings is not before us on this appeal, and properly so, but from the record that is before us, it would appear that appellant has paid nothing toward the support of his child for more than half the period of time that has elapsed since the divorce was granted. The record indicates no effort, whatever, on appellant’s part to visit his child or arrange for her visit with him, and it would appear that appellant is more concerned about the child support than about his visitation rights.
It is a matter of common knowledge that at least one parent must necessarily forfeit some individual rights to the constant companionship of minor children when a divorce decree is granted. In defining and enforcing the rights and obligations of the parties to a divorce action, especially where minor children are concerned, much must be left to the sound discretion of the chancellor under the facts and circumstances of the case before him. Although this court tries equity cases de novo on appeal, we do not disturb a chancellor’s order or decree unless it is clearly against the preponderance of the evidence, or unless the chancellor has abused his discretion.
We held that the chancellor did not abuse his discretion in the Antonacci case, supra, relied on by the appellant and we hold that the chancellor did not abuse his discretion in the case at bar.
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George Rose Smith, Justice.
Under Amendment 34 to the Arkansas Constitution municipal employees have the right to belong to labor unions, but they do not have the right to strike against the government. Potts v. Hay, 229 Ark. 830, 318 S.W. 2d 826 (1958). The principal question here is whether a city is under a duty to engage in collective bargaining with a union representing city employees. This appeal is from a decree holding that the city must bargain in good faith with the union representatives. The other issues in the case are of comparatively minor importance.
The record runs to almost 500 pages, but the controlling facts are not really complicated. Many employees of the city of Fort Smith — the exact number is not now material — joined the appellee union, State Council No. 38 of the American Federation of State, County,. and Municipal Employees, AFL-CIO. On June 17, 1968, Jeane Lambie, the state president of the union, sent a letter to the city officials, asking that the union be recognized by the city for the purpose of collective bargaining about wages, hours, and conditions of employment. On the same day Mrs. Lambie appeared at a meeting of the city directors and renewed her request for recognition. No formal action was then taken by the directors.
On the following- day the directors unanimously adopted a written statement of policy which declared, among other points, (a) that the determination of hours of work, salary, etc., was the responsibility of the board of directors and not a matter to be negotiated, (b) that a personnel officer had been made available to hear grievances, (c) that city employees do not have a right to strike or to picket, and (d) that should city employees stop work or picket they would be treated as having quit their jobs and would, be replaced.
That statement was approved on June 18. On the next day the city, administrator (a position similar to that of a city manager) attempted to arrange a series of' departmental meetings at which the city directors’ statement of policy would be read to the municipal employees. The first meeting scheduled was to have been with the sanitation department employees, who collected trash and garbage. It is quite apparent from the testimony that those on each side of the dispute were maneuvering to make it appear that the opposite side was in the wrong. That is, the city wanted it to appear that the workers had quit their jobs, while the union wanted it to appear that some of its members had been discharged because of their union membership. On this issue of fact the chancellor upheld the union’s position. We think the weight of the evidence supports that conclusion.
After the sanitation department meeting, at which about twenty employees were discharged, members of tlie -union set up picket lines at several municipal facilities. A great many of the city’s non-uniformed employees (the police and fire departments have not taken any part in the dispute) refused to cross the picket lines, so that some municipal services — especially garbage collection — were curtailed or discontinued entirely.
On June 20 the city filed this suit for an injunction against the picketing and other assertedly illegal acts. The union’s answer and counterclaim asked that the city be required to bargain collectively with the union’s representatives. Testimony was taken at several hearings.
The chancellor eventually entered two temporary orders, a final order, and a supplement to the final order, all of which are before us for review. The court found that the city’s refusal to bargain with the union was contrary to law. The city was ordered to reinstate the discharged employees, and the employees were ordered to return to work. The city was enjoined from letting contracts to third persons for the performance of municipal services, such as garbage collection. The city was ordered to bargain collectively and in good faith with the union. To that end the court appointed three special masters in chancery, who were directed to assist the parties in their negotiations (in the manner of a mediation board) and to report progress to the court from time to time.
The court was in error in holding that the city was under a duty to bargain with the union’s representatives. In the absence of a statute to the contrary the cases have held almost without exception that a municipality or other political subdivision is under no duty (which we take to mean a legally enforceable duty) to bargain collectively with its employees about wages, hours, or working conditions. Nutter v. City of Santa Monica, 74 Cal. App. (2d) 292, 168 P. 2d 741 (1946); Fellows v. LaTronica, 151 Colo. 300, 377 P. 2d 547 (1862); Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So. 2d 194, 165 A.L.R. 967 (1946); Local Union 283, International B.E.W. v. Robison, 91 Idaho 445, 423 P. 2d 999 (1967); Wichita Public Schools Employees v. Smith, 194 Kan. 2, 397 P. 2d 357 (1964); City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W. 2d 539 (1947), distinguished but not overruled in State ex rel. Moore v. Julian, 359 Mo. 539, 222 S.W. 2d 720 (1949).
Basically, the reason for the rule is that the fixing of wages, hours, and the like is a legislative responsibility which cannot be delegated or bargained away. Several aspects of the matter were discussed in the Wichita case, supra, where the court said:
The entire matter of qualifications, tenure, compensation and working conditions for any public employee involves the exercise of governmental powers which are exercised by or through legislative fiat. Under our form of government public office or public employment cannot become a matter of collective bargaining and contract.
The objects of a political subdivision are governmental — not commercial. It is created for public purposes and has none of the peculiar characteristics of enterprises maintained for private gain. It has no authority to enter into negotiations with labor unions concerning wages and make such negotiations the basis for final appropriations. Strikes against a political subdivision to enforce collective bargaining would in effect amount to strikes against the government.
Some cases have held that a municipality or school district may voluntarily engage in collective bargaining. Norwalk Teachers’ Assn. v. Board of Education, 138 Conn. 269, 83 A. 2d 482 (1951); Chicago Division of the Education Assn. v. Board of Education, 76 Ill. App. 2d 456, 222 N.E. 2d 243 (1966). Those cases do not assist the appellees, for here the city directors are unwilling to engage in such bargaining. In one case cited by the appellees, Local 266, International B.E.W. v. Salt River Project Agri. Imp. & Power Dist., 78 Ariz. 30, 275 P. 2d 393 (1954), the court did sustain the union’s right to strike against an improvement district, but one of the reasons given was that the district was owned by private landholders; so the strike was not against the public.
We do not agree with the appellees’ argument that the city is compelled by Ark. Stat. Ann. § 81-201 (Repl. 1960) to engage in collective bargaining. 'That section reads: ‘ ‘ Freedom of organized labor to bargain collectively, and freedom of unorganized labor to bargain individually is declared to be the public policy of the State under Amendment 34 to the Constitution.” That section is merely a preamble to Act 101 of 1947 — the enabling act for Amendment 34. Except for that prefatory statement of policy the act, like the amendment, deals only with the denial of employment on the basis of the employee’s membership or nonmembership in a labor union. We are unable to read into that preamble, which is merely a statement of policy expressed in the most general terms, a specific command that municipalities engage in collective bargaining when requested to do so. Had the General Assembly intended that change in the law it would certainly have used more explicit language to accomplish its purpose.
During the oral argument counsel for the appellees, envisaging the possibility that the city might not be compelled to bargain collectively, suggested that nevertheless the union’s right to present its grievances to the city officials ought to be recognized. No doubt that right does exist. The Bill of Rights protects the right of the people to assemble and to petition the government by address or remonstrance. Ark. Const., Art. 2, § 4. The Colorado court, in the Fellows case, sv/pra, made this pertinent observation, with which we agree:
A proper exercise of the legislative function might well involve consultation and negotiation with spokesmen for public employees, but the ultimate responsibility rests with the legislative body and, under the record here presented, that responsibility cannot be contracted away.
We must decline the appellees’ suggestion that we attempt to define precisely the extent to which the city officials are required to listen to the grievances of its employees, whether presented individually or collectively. There is no limit to the various fact situations in which the issue might arise. Experience has shown again and again that the courts’ best course is to decide concrete cases as they are presented in adversary proceedings, rather than to speculate about theoretical or academic questions that may never arise in actual litigation.
We conclude that the court was in error in directing the city to bargain in good faith with the union, with the implication that a failure to do so might be punishable as a contempt of court. It follows from our decision upon the principal question that the court also erred in appointing what amounted to a mediation board and in enjoining the city from letting contracts for the performance of municipal services.
That part of the decree that directs the city to reinstate those employees who were wrongfully discharged is affirmed; in other respects the decree is reversed.
Harris, C.J., and Jones and Byrd, JJ., concur. | [
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George Rose Smith, Justice.
In this condemnation suit, brought by the Highway Commission, the. jury fixed the value of the land being taken at $26,450. The Commission argues two points for reversal.
First, it is contended that the Commission was unfairly taken by surprise at the trial when the landowner was allowed to prove, without having pleaded, that the tracts being condemned comprised about four acres more than the figures asserted in the Commission’s complaint. That contention arises from this set of facts:
By the complaint the Commission sought to acquire two tracts of land. Tract No. 422, described by metes and bounds, was alleged to contain 14.55 acres. Tract No. 422B was described in two parts: (a) The southwest quarter of the southwest quarter of a certain Section 18, and (b) a part of the northwest quarter of the adjoining Section 19, which was described by metes and bounds and was alleged to contain 23.3 acres, more or less. The description of Tract 422B ended with this clause: “A total of 63.3 Acres, more or less.” It is apparent, simply by substruction, that the plaintiff as- sinned that the southwest quarter of the southwest quarter of Section 18 contained 40 acres.
Schmoll’s answer briefly denied the Commission’s right to condemn all the land described in the complaint and went on to assert a right to compensation in excess of the amount deposited by the condemnor with its declaration of taking. The answer did not controvert the plaintiff’s allegation that Tract 422R consisted of 63.3 acres.
At the trial Schmoll was allowed to offer proof by an abstractor of titles, over the Commission’s objection, that the southwest quarter of the southwest quarter of Section 18 actually contains 43.86 acres. Counsel for the Commission at once pleaded surprise and asked for a continuance to permit the highway department’s engineers to survey the land, hut that request was denied.
We think the court fell into error. True, when the sole issue in a condemnation case is the value of the land the owner need not even file an answer, because the condemnor must pay just compensation whether or not the owner appears and answers. Bradley v. Keith, 229 Ark. 326, 315 S.W. 2d 13 (1958). When, however, the landowner intends to raise other issues, such as a claim for special damages, he must file an answer asserting his contentions. Ark. State Highway Commn. v. Lewis, 243 Ark. 943, 422 S.W. 2d 866 (1968). Similarly, when the other foot is shod, the condemnor’s failure to plead a material matter is prejudicial to the landowner “if it puts him at an unnecessary disadvantage in the presentation of his case.” Urban Renewal Agency v. Hefley, 237 Ark. 39, 371 S.W. 2d 141 (1963).
In a situation such as this one the controlling consideration on appeal is and should he that of simple fairness. Counsel for the Commission evidently drafted their complaint in the belief that the quarter quarter section comprised forty acres. Total acreage is important, because the value of rural property is ordinar ily determined by the acre. Counsel for the landowner were manifestly of that opinion, for they came to court prepared to prove the exact acreage that was involved. We are firmly of the view that the issue should have been brought out into the open before the day of trial. If the law were otherwise the Commission, through no fault of its attorneys, would be exposed in every case to the risk of excessive or even fictitious claims not disclosed by the pleadings. For many years the courts, aided by pretrial conferences, discovery depositions, and allied procedures, have been eliminating former practices that permitted litigants to mask their batteries until the day of trial. An affirmance of this judgment would involve a long step backward.
The appellant’s second contention is that the court erred in allowing counsel for the landowner to argue to the jury, without supporting proof, that the Commission was taking more land than it needed and that in such a situation the landowner has no choice except to submit to the Commission’s decision. Such an argument is not well founded, as the landowner has a clear-cut remedy in eqjuity against the taking of more of his land than is needed for public purposes. Burton v. Ward, 218 Ark. 253, 236 S.W. 2d 65 (1951). We need not discuss the issue in detail, however, for it should not arise upon a retrial.
Reversed.
Fogleman, J., dissents. | [
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Paul Ward, Justice.
This is a Criminal Procedure Bule No. 1 proceeding wherein Charles Ellis (appellant) contends his constitutional rights were violated when he was sentenced to life imprisonment in the penitentiary.
On September 1, 1958 appellant was charged with murder in the first degree for slaying A. Z. Cromwell on August 26, 1958. Upon arraignment he pleaded guilty. A jury, upon hearing testimony, fixed his punishment as previously stated, and he began serving the sentence.
Approximately eight years later appellant filed a petition in circuit court of Saline County (where he had been sentenced) alleging his constitutional rights had been violated. His prayer was for “immediate freedom”.
On March 11, 1968 the court appointed attorney Fred Briner to represent appellant, and a hearing was held on June 26,1968. At that time the criminal docket sheet of the 1958 trial was introduced in evidence, and appellant took the stand and testified at length.
At the close of the hearing the trial court denied the relief prayed for, and this appeal follows.
We have carefully examined each of the grounds urged here by appellant to show a violation of his constitutional rights, but find no merit in any of them.
The docket sheet showing the proceedings at the original trial in 1958 was introduced in evidence and it reveals: Appellant was represented by Attorney Wendell Hall; He entered a plea of guilty on December 8, 1958; On the same day he was found guilty by a jury, he waived time for pronouncement of judgment, was sentenced to life imprisonment. No other evidence was presented to the court except the testimony given by appellant.
The only grounds urged here by appellant for a reversal are those mentioned below.
A. Appellant testified that he was apprehended in New Mexico and returned to Arkansas by Lt. McDon aid without an extradition hearing or waiver. We see no merit in this contention because this point was not raised when he pleaded guilty in 1958 after conferring with his attorney. Moreover, appellant does not contend he requested such hearing.
B. Here, it is contended his constitutional rights were violated because he “was not arraigned before a magistrate for a period in excess of thirty days after his arrest.” Again it is pointed out that no such objection was raised in 1958.
C. Finally, appellant contends his constitutional right was violated when he (allegedly) admitted the killing without having been warned of his right to keep silent (as required by the Miranda decision). A sufficient answer to this contention is that the Miranda decision was announced some eight years after appellant was convicted, and that it is not retroactive. See: James W. Moore v. State, 241 Ark. 745 (p.747), 410 S.W. 2d 399.
Finding no reversible error, the judgment of the trial court is affirmed. | [
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J. Fred Jones, Justice.
This case presents an excellent example of the inadequacy of the judicial machinery in our dual court system for final disposition of a criminal case where a confession is used in evidence against the one who makes it, and under modern interpretation and concepts of the due process clauses of Amendments 5 and 14 of our Constitution. The question now before this court, and one which we anticipate will be here again, is whether a confession made by Lonnie Mitchell, more than nine years ago, was voluntarily made without coercion.
The appellant, Lonnie Mitchell, was convicted of the crime of rape in Union County, Arkansas, in March 1959, and sentenced to death by .electrocution. He admitted the rape in a recorded confession, the recording was played to the jury at his trial, and upon appeal to this court the conviction was affirmed. (Mitchell v. State, 230 Ark. 894, 327 S.W. 2d 384.) The appellant then filed a petition for writ of habeas corpus in the Jefferson County Circuit Court, the application was dismissed and was affirmed by this court on appeal. (Mitchell v. State, ex rel Henslee, 233 Ark. 578, 346 S.W. 2d 201.) Appellant then filed an original application with this court for permission to file a petition for a writ of error coram nobis in the trial court relative to his sanity at the time of the trial. This application was denied. (Mitchell v. State, 234 Ark. 762, 354 S.W. 2d 557.) Appellant then instituted habeas corpus proceeding’s in forma pauperis in the TJ. S. District Court for the Eastern District of Arkansas and the petition was denied on the grounds that he had not exhausted his state remedies. (Mitchell v. Henslee, 208 Fed. Supp. 533.) An appeal was taken to the U. S. Court of ApIDeals, Eighth Circuit, from the order of the District Court denying the petition, and the Eighth Circuit Court of Appeals reversed the District Court. (332 Fed. 2d 16.) On remand to the District Court, hearing was had in which appellant testified and the District Court filed an opinion in support of its conclusions denying the petition. (Mitchell v. Stephens, 232 Fed. Supp. 497.) Appellant again appealed from that decision to the Eighth Circuit Court of Appeals and argued five points for reversal.
In a thorough, analytical opinion, the Eighth Circuit Court of Appeals took up and disposed of each of the points raised by the appellant in their proper order. The Eighth Circuit Court of Appeals disagreed, however, with the District Court’s conclusions that the appellant effectively waived the question of coercion in connection with his confession by not raising that question at his state trial, and the court summarized and concluded its holding as follows:
“In summary, therefore, on the confession point, we hold that this record does not establish involuntariness as a matter of law or that Mitchell effectively waived the issue of coercion; that the District Court’s determination that the defense claim as to the absence of assistance of counsel has no substance is adequately supported by the record ; but that, under Jackson v. Denno, Mitchell is entitled to an independent state court determination as to the voluntariness of his confession.
The order of the District Court dismissing the petition for a writ of habeas corpus is reversed and the case is remanded with directions to grant the state of Arkansas a reasonable time to afford Mitchell an appropriate hearing on the issues of voluntariness of his rape confession or, in the alternative, a new trial.” (353 F. 2d 129.)
The Eighth Circuit Court of Appeals held that:
“... [U]nder Jackson v. Denno, Mitchell is entited to an independent state court determination as to the voluntariness of his confession.”
In commenting on Mitchell’s contention in the federal court, that his court appointed attorney failed to present his defense of coercion, the court of appeals at page 145 of the Federal Report said:
“It is to be observed again that as to some of these facts there is sharp conflict in the evidence. Thomas and others testified of free access to Mitchell and of frequent consultations. It is true that the coercion issue was not raised and its existence was even specifically denied by counsel during the trial. But if Mr. Thomas’ testimony is to be accepted, this was a matter of definite and deep concern to him. He reviewed it with Mitchell, but he was given no material with which to work. In any event, it is before the court now and Mitchell, as we have held above, is to have his day in court on this claim and must make his case if he can.”
(Emphasis supplied.)
Upon remand to the Union County Circuit Court, the appellant was afforded an open court hearing before Judge Grumpier on April 25, 1967, and the appellant was present in court with his parents and his attorney at this hearing*.
At the hearing afforded the appellant on April 25, 1967, the appellant’s attorney and the state’s attorney agreed to submit the matter to the trial judge on the records already made in the state and federal courts. The attorneys waived oral arguments, both sides submitted briefs, and with the exception of Sheriff Bishop’s short addition to his previous testimony, as to attorney Thomas visiting the appellant in jail, no additional evidence was offered by the state and no additional evidence at all was offered by the appellant. The trial judge, of necessity, made his findings of fact and conclusions of law from the records before him, which were the same records that were before the circuit court of appeals when that court remanded the case with directions to afford Mitchell an appropriate hearing on the issue of voluntariness of his rape confession or, in the alternative, a new trial.
Following the hearing on April 25, 1967, and the submission of briefs on July 14, 1967, the state trial court filed its findings of fact and conclusions of law on December 7, 1967, and entered judgment holding that the confession of the appellant was voluntary and made of his own free will. The appellant again filed a motion for a new trial which was denied by the trial court. He has again appealed to this court and directs his argument primarily to the denial of his motion for a new trial.
Appellant argues rather sharply, that the trial court considered extraneous and prejudicial evidence, not concerned with the confession, in reaching its decision, and appellant argues that he has in fact not been afforded a hearing on the voluntariness of his rape confession. We do not gather such inferences from the record before ns. We conclude from the record before ns, including the trial court’s findings, that an appropriate and adequate hearing was afforded Mitchell on the voluntariness of his rape confession, but that no material evidence was offered by the state at that hearing and none at all was offered by the appellant.
The Circuit Court of Appeals set out in its opinion the entire proceedings of the hearing in chambers at the state court trial, and as related to the voluntariness of the confession, the court of appeals considered the hearing in the light of Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, and on this point reached the following conclusion:
<!...[W]e are almost persuaded that Denno has no application here and that, if it has, its requirement has been met. However, in the light of facts, as they are now asserted and disputed at this late hour, we are not so completely satisfied about the fulfillment of Denno’s standards that we possess, to a realistic certainty, a sense of sureness as to the Supreme Court’s attitude. This is, after all, a case of ultimate consequence to Mitchell.
... If an independent state determination of the issue of voluntariness had not been made by the judge or by a jury distinct from the trial jury itself, see footnote 19 in Jackson v. Denno, p. 391 of 378 U.S., 84 S. Ct. 1774, then Mitchell is entitled at least to his hearing. Because of a mild doubt on our part, we remand. The eventual result may or may not be the same. But all will then know that the rule of Denno will have been satisfied and that Mitchell’s constitutional rights will have been clearly protected. ’ ’
In the absence of additional evidence before the trial court on remand, the trial court had the duty of ■weighing all the evidence in the records before him pertaining to the voluntariness of the confession, and in doing so the credibility of all the the testimony of all the witnesses, including the appellant’s own testimony as to coercion, should be weighed, considered and evaluated. From the trial court’s findings of fact and conclusions of law in the record before us, we are unable to determine what weight Judge Crumpler gave to the evidence in the records before him. The record indicates the possibility that Judge Crumpler may have given undue weight to the record of chamber proceedings had at the original trial and that in considering this case in the light of the “orthodox” or Massachusetts rule approved and set out in footnote 8 to Jackson v. Denno, he may have concluded that Jackson v. Dcmuo did not apply or had been fully complied with at the original trial. If Judge Crumpler did so consider the chamber proceedings at the original trial, that was the precise point upon which the Eighth Circuit Court of Appeals did not agree when it directed a remand of this case with instructions to afford the appellant a hearing on the voluntariness of his confession.
We find two sentences in the trial court’s findings of fact which are not at all clear to us in the light of the entire record in this case. These two sentences are as follows:
“There is absolutely no evidence of coercion, threat, abuse, enticement or promise of reward whatsoever, but on the contrary, overwhelming evidence shows that such statement was given voluntarily.
It is without contradiction that this Petitioner was informed and apprised of his Constitutional right of self-incrimination of a minimum of five times in addition to advice and counseling on this subject with his attorney.”
We are quite sure that the trial court did not overlook, or intend to ignore, the appellant’s own testimony on these points. As a matter of fact there is evidence of coercion, threat and abuse in this case, and there is contradition that the appellant was informed and apprised of his constitutional rights. The evidence of coercion, threats and abuse, as well as the contradictions, comes from appellant’s own testimony. While the evidence as to coercion, threats, abuse and intimidation going to the voluntary nature of appellant’s confession, is the primary issue involved, the appellant’s own testimony should be weighed on the same scale with the other testimony in this case.
Notwithstanding the procedure we followed in Harris v. State, 244 Ark. 314, 425 S.W. 2d 293, we are of the opinion that this case should be remanded to the trial court for a rehearing or re-examination and re-evaluation of all the evidence pertaining to the voluntariness of appellant’s confession.
Remanded for further procedure.
Byrd, J., not participating. | [
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George Rose Smith, Justice.
This is an action brought by the appellees, F. M. McKinley and his wife, to recover $10,000 under the uninsured-motorist section of a policy of automobile insurance issued to McKinley by the appellant. In the trial court both parties moved for summary judgment, upon the pleadings and a stip ulation of fact. This appeal is from a $10,000 summary judgment for the plaintiffs.
The facts are undisputed. On February 13, 1965, McKinley, while traveling in the course of his employment, was seriously injured in a collision with a car being driven by Gerald Davis, an uninsured motorist. McKinley obtained a judgment against Davis in the amount of $21,833 for his personal injuries; Mrs. McKinley obtained a companion judgment for $4,750 for loss of consortium. The McKinleys then brought this action to recover the maximum coverage of $10,000 under the uninsured-motorist section of the policy issued by the appellant.
The insurance company pleaded as its defense to the suit a clause in the uninsured-motorist section by which it was provided that any amount payable under that section of the policy for bodily injury sustained by the insured “shall be reduced by . . . the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen’s compensation law, disability benefits law or any similar law.” It is shown that McKinley has received workmen’s compensation benefits of $18,720.22 for his injuries.
Even construing the policy strictly against the insurer, as we do, we can find no basis for holding that the quoted clause is not controlling. Needless to say, the parties are at liberty to agree upon any conditions that are reasonable and not contrary to public policy. State Farm Mut. Automobile Ins. Co. v. Belshe, 195 Ark. 460, 112 S.W. 2d 954 (1938). The appellees argue that the clause in question is against the state’s public policy, because Act 464 of 1965 specified the minimum uninsured-motorist coverage to be included in all automobile liability policies. Ark. Stat. Ann. (A 66-4003 to -4006 (Repl. 1966). That act, however, was not approved and did not become effective until after both the issuance of the policy in question and the occurrence of the accident in which McKinley was hurt. Even if we assume, without so deciding, that the clause in question is contrary to the statute, we cannot give the statute a retroactive effect that would cut off a valid defense available to the insurer before the passage of the act.
Alternatively the appellees contend that the uninsured-motorist section of the policy is so ambiguous that it should not serve as a defense to this action. We have studied that section of the policy with care, but we do not find any ambiguity affecting the issue now presented. To the contrary, the contract unmistakably states that any amount payable under that section of the policy shall he reduced by the amount paid under any workmen’s compensation law on account of the insured’s bodily injury. The facts of this case bring it squarely within that provision of the contract. In fact, the appellees’ brief does not point to any ambiguity in the contract; it is merely argued that the uninsured-motorist section of the policy is unnecessarily long. That may he, hut excessive verbiage is not in itself a basis for refusing to give effect to contractual provisions that are so clearly stated as to he beyond any possibility of misunderstanding.
Reversed and dismissed. | [
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John A. Fogleman, Justice.
Appellants are the daughter and son-in-law of appellee, the plaintiff in a suit to cancel a deed by which she had conveyed certain lands to them. She alleged that the deed was made in order that appellants might arrange the refinancing of an indebtedness she had secured by a mortgage on the land, but that contrary to their agreement, appellants had refused to reconvey the lands. This refusal, she contended, amounted to fraud.
Appellee Nancy Lillard owned 120 acres of land on which she had lived since 1918. In 1964 it was subject to a mortgage indebtedness in excess of $8,000 bearing interest at the rate of 10% per annum on an original debt of $6,000. Her payments were in arrears, making the debt subject to acceleration, but she was not being pressed for payment. She was nearly 70 years of age and unable to farm the lands herself, so had rented them to a tenant for a year or more. She also owed $1,000 on a tractor she had used on the farm. Appellant Beatrice Arnett and one other daughter were the only ones of her nine living children who did not live in St. Louis. Robert Arnett was living in the vicinity, farming rented lands.
The parties do not agree on the preliminaries to the refinancing arrangement leading to the conveyance of the lands. Mr. Earl Wilson, the county supervisor of the Farmers Home Administration in Phillips County, testified that in October 1964, Nancy Lillard made an application to his agency for a loan. She listed debts of $9,200 on her application. She was not eligible for a loan because she did not operate the farm herself. This application was withdrawn. Appellants then made application to the FHA on November 2, 1964, to purchase the farm and to refinance an indebtedness of $416.64 on their home and the two acres of land on which it was situated. The application indicated that Robert Arnett would farm the land. On November 9, 1964, Nancy Lillard signed an option to appellants to purchase the land for $8,000. The FHA appraisal showed a normal, or loan value, of $8,600, but the loan actually made was $8,380. The objective of the appraisers was to arrive at a loan value amounting to about 70% of the market value. When the loan closing costs, land clearing costs, repair costs and the balance of the debt on the Arnett home had been paid, there remained $8,000 to pay on the mortgage on the land. The loan was closed on March 15, 1965, on which date Nancy Lillard conveyed the lands to the Arnetts by the warranty deed which she now seeks to cancel. The loan proceeds were not sufficient to pay the mortgage in full. On March 30, 1965, the FHA made a production loan of $3,000 to Robert Lillard, from which a $1,000 balance on this indebtedness was paid and the Lillard farm equipment was then transferred to him by a bill of sale signed by Nancy Lillard. The FHA mortgage loan was at 5% interest, payable in annual installments of $488 over a period of 40 years. All of the annual payments becoming due prior to the institution of this suit were made by Robert Arnett. Due to an illness suffered by him, he was granted permission by the FHA to rent the lands to a tenant in 1967. Mr. Wilson stated that Robert Arnett was present on one occasion when Nancy Lillard’s application was discussed. Although Mr. Wilson understood from conversation among the parties that appellee “would live out her days” in her home on the lands, no collateral agreement between the parties to the deed came to his attention. Nancy Lillard did continue to live on in her home and was living there at the time of the trial.
Nancy Lillard had a sixth-grade education and could read and write, but said that she could not now see well ■enough to read. She testified that she understood when the loan was closed that she was signing a contract for Robert to “work it out of debt,” get “Mm some money back,” and then “turn it back.” Sbe stated that be told ber sbe was signing a contract and that for over a year sbe knew nothing of tbe deed. Sbe denied that anyone in tbe FHA office told her sbe was signing a deed. Sbe said that sbe intended for Arnett to work tbe land long enough to pay it out of debt, make a living for himself, and make enough money to satisfy him. Nothing was said about tbe payment of any rent to ber.
Nancy Lillard admitted: making tbe application for tbe FHA loan; receiving $13 from tbe proceeds of timber sold by Robert Arnett; that Arnett bad made repairs to ber home; that be bad cleared about 3 acres of land with a bulldozer; that tbe $8,000 loan proceeds went to pay ber debt; that sbe never asked Arnett to pay her any rent.
Appellee’s version of tbe manner in which tbe proposal for refinancing arose is that Robert Arnett suggested tbe FHA application and took ber to tbe office. Sbe testified that he also proposed the arrangement to which sbe agreed after sbe was told that ber loan application would not be approved.
Sbe first expressed dissatisfaction when Arnett proposed to sell 80 acres of the land. Sbe stated that sbe learned of this from sources other than appellants.
Seanes Boyce, tbe husband of a step-daughter of appellee, testified that Robert Arnett bad told him that be was taking tbe place under a lease and was going to work it out of debt. He was unable to say whether this was before or after the deed was signed. Boyce’s wife admitted telling Arnett that sbe was glad for him to take tbe place and lease it for a number of years because of her inability to do anything. It was not until Arnett proposed to sell some of tbe land that sbe discovered that tbe transaction involved a deed, not a lease. Sbe testified that when all of tbe brothers and sisters ob jected to the sale, Arnett told her, appellee, and one of appellee’s daughters that if they would give him $3,000 he would relinquish all rights and that if he had realized that heirs were involved, he would never have ‘‘fooled” with it. She denied knowing that Arnett proposed the sale in order to pay off the debt.
Evie Mallett, a daughter who had lived in St. Louis since 1942, said that Arnett told her in August of 1966 that he was going to work the place out of debt and turn it back to appellee just like it was. She testified that when they protested the proposed sale, Arnett said that he would turn the land over to them for $3,800, $300 of which was for the tractor he had taken over.
Edmond Lillard, a son of appellee, recalled that Arnett called him before anything was done, advising of his proposal to take the place and work it out of debt. His version of the conversation was that Arnett was going to return the land and wanted nothing for himself. He admitted a dislike for Robert Arnett.
Robert Arnett’s version is somewhat different. He testified that he and appellee usually discussed their respective farming operations each fall. In the fall of 1964 he learned that Nancy Lillard did not know how much cotton she produced in 1963 and had no statement of her status. He said that he admonished her to attend to her business, and advised her to get a statement from her mortgagee, who apparently handled the disposition of her crops. He further stated that after she obtained one statement and lost it, he went with her to get another. According to him, appellee thought she could get help from the Forrest City Production Credit Association so appellants took her there, but she was told by them that the debt was at least $2,000 too great and that, in any event, they could only make a six- or seven-year loan to her. The parties also went to other lending agencies in Forrest City and in Marianna with the same result. Then, he said, appellee remarked that there was only one other place to go — the FHA. When they went there, he related, Mr. Wilson told them that they conld not make a loan to a non-operating owner and asked Nancy Lillard if there were not someone in the family she could let have the land. According to Arnett, she replied in the affirmative and said “Robert Arnett and Beatrice Arnett, my daughter and son-in-law.” Arnett testified that he protested, not wanting to become involved with her children whom he described as hard to get along with, and suggested appellee’s other daughter who lived in the vicinity. Appellee refused because of a lack of confidence in this daughter and son-in-law, saying that she would rather let the place go. Reluctantly, he says, he agreed to undertake to save the place if he could, because of his love for Nancy Lillard and the fact that his only child was a Lillard. He states that Wilson told appellee she would have to deed the property to appellants, but after the debt was paid, they could “fix it” however they wanted it; both Wilson and Ward at the FHA office told appellee she was signing a deed; appellee told him and his wife, “Now, you all take this land, work it out of debt, and work it as long as you want to and get you something out of it, and turn it back to me.” After the papers were signed, it was his intention to farm the land as long as he lived and was physically able. He had to go to the hospital for surgery in 1966, and was unable to work thereafter. He then proposed to appellee that he sell 80 acres of the land for $14,000, pay the debt, and give her one-half of the sale proceeds in excess of the debt, a home on the remaining 40 acres for the rest of her life, and a share in the income therefrom.
After this proposal, the whole family came to call on Arnett, saying: “We come to get the place,” and objecting to the sale. When appellee protested, he agreed not to sell the land and told the family if they wanted to get him out of the possession of the property, they would have to buy him out, but that he did not have to give up the land until the debt was paid out. It was then that he proposed that they relieve him of the debt, pay him $3,800 and take the farm, the tractor, and equipment. They refused, so he told them he would pay the debt somehow. Every time any of the family told him he had not bought the place, he responded that, even if he had not, he had a 40-year lease on it.
He bought some additional farming equipment at a cost of approximately $2,500, for which he would have no need unless he farmed this land, and which was of no use to him after he had to quit farming. He also had to pay $240 in drainage taxes and an attorney’s fee before the loan vías closed. 'The first year, he had $200 left from the crop proceeds after paying all operating costs and debt payments, including $500 for living expenses. He gave appellee $50 of this remainder. He cleared 6 acres of the land for cultivation at a cost to him of $578, but received the proceeds of the sale of the timber, which may have been $500.
The chancellor found that:
(1) Appellee vías unaware of the legal eonsesequences of the option, deed and bill of sale.
(2) Arnett’s motives were not ulterior and he did not intend to take the land from his mother-in-law, but had agreed to pay it out of debt.
(3) That appellee thought she was signing a contract and Arnett thought it was a lease.
(4) That Arnett’s action had resulted in a decrease of the interest rate from 10% to 5%, for which he should be compensated.
(5) That Arnett was the owner of the personal property formerly owned by appellee.
(6) That the 1968 rent contract entered into by appellants was valid, but they were accountable for $1,112 as the difference between the mortgage debt payment and the rent collected by them in advance.
(7) That neither appellants nor FHA were guilty of fraud, but there was a mistake of fact on the part of appellee and appellants.
The court’s decree contained a finding that the deed conveyed only legal title, and that appellee retained the equitable title, subject to the mortgage debt.
On trial de novo, we agree with the chancellor on findings 1, 2, 4, 5 and 7, but do not agree as to the other findings. The court’s decree leaves appellee with all the benefits of the action taken by the parties, to the detriment of appellants. We find that the evidence clearly shows an agreement between the parties that appellants take over the farm until the debt was paid and they made a profit, at the same time providing appellee with a home thereon as long as she lived, after which it would be reeonveyed to appellee or her heirs and assigns. Their only mistake was in the failure of the contract document to express their agreement. The fault for this should be borne equally.
Appellants had relieved appellee of any personal liability for any indebtedness on the land or responsibility for its operation, had cleared the lien on her farming equipment, which they did not need unless Arnett cultivated the land, bought additional equipment for which they now have no need, assumed appellee’s debts, for which they will remain personally liable, and encumbered their own home to secure them. Appellee did not offer to relieve appellants of any of these burdens, and the decree rendered did not do so.
We feel that the appropriate equitable remedy here is reformation of the deed to reflect the agreement of the parties, i.e.: to vest title in appellants as trustees of an express trust to cultivate the lands, or cause them to be cultivated., and collect the rents, income, and profits therefrom, paying therefrom all taxes, insurance premiums on improvements, and costs of repairs and maintenance and the annual installments of the mortgage debt, and retaining any excess for their own use and benefit, and to maintain the dwelling house occupied by appellee as a home for her as long as she lives. The title to the property shall vest in her heirs and assigns as soon as the mortgage indebtedness is retired.
Equity will reform written instruments in two cases: (1) "Where there is a mutual mistake — that is, where there has been a meeting of minds — an agreement actually entered into, but the contract, deed, settlement, or other instrument, in its written form, does not express what was really intended by the parties thereto, and (2) "Where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties. Welch v. Welch, 132 Ark. 227, 200 S.W. 139; American Alliance Ins. Co. v. Paul, 173 Ark. 960, 294 S.W. 58.
We are not unmindful of Ark. Stat. Ann. § 38-106 (Eepl. 1962), which requires all declarations or creations of trusts of any interest in land to be in writing. That statute is applicable where there is an express oral trust. Umberger v. Westmoreland, 218 Ark. 632, 238 S.W. 2d 495. However, it is not applicable here because neither party, in the trial below, pleaded or relied on the statute of frauds as a basis for affirmative relief or as a defense. In fact, on appeal, both asserted that the statute did not apply; the appellants for the reason that part performance took the trust out of the statute and the appellee for the reason that the statute of frauds does not apply to a constructive trust. Before a party may rely on the statute of frauds as a defense, it must be specifically pleaded. Smith v. Milam, 195 Ark. 157, 110 S.W. 2d 1062; Rushton v. Isom, 204 Ark. 804, 164 S.W. 2d 997. See Toung v. Paquette, 341 Mass. 67 (1960); 167 N.E. 2d 308, Bogart, Trusts & Trustees 2d ed. § 71, p.58. Further, in this case both parties, in their testimony, admitted the existence of the oral agreement which constituted the express trust. This fact has been held to prevent the application of the statute of frauds to an express oral trust of an interest in land. Trossbach . Trossbach, 185 Md. 47 (1945), 42 A. 2d 905.
The decree is reversed and the cause is remanded to the chancery court for entry of a decree consistent with this opinion.
Holt, J., not participating. | [
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Lyle Brown, Justice.
This is an appeal from a judgment on a promissory note. The trial court, sitting as a jury, awarded judgment to Hembree Oil Company, Inc., against Myrl Fanning, holding that Fanning signed the note in his personal capacity and not in his capacity as an officer of Razorback Asphalt Co., Inc. The single purpose of the appeal is to test the sufficiency of the evidence to support the verdict.
Several pertinent facts are undisputed. Roy Hembree operated the Hembree Oil Co., Inc., engaging in the oil and gas business. Myrl Fanning and Darrell Winters were incorporated as Razorback Asphalt Co., Inc. Winters was president and Fanning was secretary. They were engaged in the selling and laying of asphalt. Razorback, under prior ownership, had run into financial difficulties and sold the business to Winters and Fanning. At that time, Razorback owed a small balance to Hembree for merchandise. The new owners continued to do business with Hembree. By July 1966, the account exceeded $2000. At that time, Hembree went to Winters and Fanning and demanded a personal note as security for the account as a condition precedent to continued business relations. A note was then and there executed. Darrell Winters signed on the top signature line; and, just above his signature, Razorback’s secretary typed “Razorback Asphalt Co., Inc.” Myrl Fanning signed on the second signature line. No representative capacity of the signers was placed on the note.
Hembree being the successful party, we examine his version of the execution of the note in search of substantial evidence to support the verdict. Because of an outstanding account, Hembree went to see Fanning when Fanning and Winters bought Bazorback; it was then agreed that when Hembree extended credit to Bazorback, he would look to Fanning for payment; and Hembree knew that Winters had no financial rating. Hembree was not aware that Bazorback was a corporation. (The letterheads and billings which are in the record and which came into Hembree’s hands in the regular course of business styled the company “Bazorback Asphalt Co.”; and Bazorback assigned an account receivable to Hembree, and that assignment was not executed in the name of Bazorback, rather it was over the signatures of Winters and Fanning.) When Hembree went to see Fanning and obtained the note in litigation, he asked for a personal note from Fanning; the latter protested signing in his personal capacity; but, nevertheless, he did sign the note. Hembree wanted a note signed personally by Fanning because Hembree felt the signature of Winters would not add anything to Hembree’s security; and Hembree did not know the name, “Bazorback Asphalt Co., Inc.,” had been inserted in the note. At the time the note was signed and delivered, Hembree gave this account:
“the court: State what was said, the conversation.
A. Well, he just didn’t want to sign it. I don’t know, he had always promised me what he would do about paying these bills, but then he just didn’t want to sign it then . . .
Q. Was there anything said then by Mr. Fanning about who was to pay that note1?
A. He said, ‘I will see to it that you get your money.’ ”
After Hembree obtained the note, he extended credit to Bazorback on open account and in substantial amount.
Fanning’s version of the execution of the note was extremely opposite that of Hembree. He was positive that Hembree asked for a personal note “and I told him I would not do that, that I would sign it as a corporation officer only.” He was corroborated by Winters and by Fanning’s secretary.
The single point for reversal is that the judgment in favor of Hembree “is not supported by a preponderance of the evidence”. Determining the preponderance of the evidence is in the province of the trial court. On appeal, we examine the evidence in light of its substantial nature. In doing so, we give the jury finding (or court sitting as a jury) the most favorable conclusion that may be arrived at to support the verdict, as was said in New York Life Ins. Co. v. Weeks, 201 Ark. 1160, 148 S.W. 2d 330 (1941). We do not disturb the finding of fact merely because of contradictions in the testimony and circumstances; we must be able to say there is no reasonable probability that the incident occurred as found by the trial court sitting as a jury. Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 S.W. 2d 256 (1968).
As we interpret the Uniform Commercial Code, the burden was on Fanning to affirmatively show there was an understanding between him and Hembree that Fanning was signing the note in a representative capacity.
“Unless the instrument clearly indicates that a signature is made in some other capacity it is an indorsement.” Ark. Stat. Ann. ^ 85-3-402 (Add. 1961).
“(2) An authorized representative who signs his own name to an instrument
(al [not here applicable];
(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.” Ark. Stat. Ann. § 85-3-403 (Add 1961).
In light of the quoted statutes we think the burden was on Fanning to affirmatively show an understanding between him and Hembree that Fanning would not be personally liable on the note. Leahy, Ex’x. v. McManus, 206 A. 2d 688 (Md. 1965). In that case the note bore the stamped name of the corporation; immediately below the stamped name appeared the signatures of McManus and Delauney, without designation of representative capacity. McManus defended on the ground that he signed solely as an officer of the corporation. The court held McManus to be prima facie liable. The case further states that, as between the parties, McManus would not be liable if he affirmatively showed an understanding that he was not to be personally liable.
In addition to the evidence, the trial court made mention of some significant circumstances: A note which bound only Razorback would have been of little value considering its financial condition; after the note ■was signed, Hembree extended substantial credit to Razorback; Hembree had little education and was not a good reader; “Mr. Fanning had a secretary, typewriter, had charge of making out the note and he was perfectly capable of putting president, secretary, or anything he wanted in it, so I can’t ignore that fact.”
Viewing the evidence and circumstances in light of the law and the circumstances we have recited, we find there was substantial -evidence to support the verdict.
Affirmed. | [
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Paul Ward, Justice.
The only question presented here is whether the circuit court or the Workmen’s Compensation Commission has jurisdiction of a cause of action which arose out of a highway collision. The facts presently set forth are not in dispute.
On October 5, 1967 John Brooks was killed while driving a truck, loaded with asphalt, from the plant site of Mid-State Construction Co. (petitioner here) located near Malvern to a job site near Arkadelphia. The truck belonged to Mrs. W. L. Tatum, d/b/a Gr. T. Trucking. On November 20, 1967 Reta Brooks (widow of deceased) filed a claim with the Arkansas Workmen’s Compensation Commission (called Com.) contending her husband was an employee of petitioner, and asking for compensation. On December 21, 1967, petitioner responded to said petition, alleging the deceased was not its employee but was an independent contractor and was acting as such at the time of his death.
Before any further steps were taken before the Commission, the widow filed, in the circuit court, a “Complaint for Declaratory Judgment” asking the court to declare that the deceased was an employee of petitioner. After the introduction of interrogatories the trial court gave petitioner ten days to answer or to further plead, preparatory to trying the issue raised in the complaint.
On July 12, 1968 petitioner (Mid-State) asked this Court to prohibit the circuit judge from proceeding further, and to allow time for filing a transcript and brief. This request was granted, and the issue is now presented to us on briefs by both parties.
Petitioner (Mid-State) contends that the circuit judge should be prohibited from proceeding further in the declaratory judgment action because:
“The subject matter of this litigation lies solely with the Arkansas Workmen’s Compensation Commission, and the Hot Springs County Circuit Court is without jurisdiction.”
It is our conclusion that, under the undisputed facts in this case, the Writ should be granted. This conclusion is based on our opinion in the case of City of Cabot v. Morgan, 228 Ark. 1084-1085, 312 S.W. 2d 333. There, the rule applicable in the case here was plainly stated by this Court in the following language:
“It has been pointed out that declaratory judgment statutes, such as our uniform act, Ark. Stats. 1947, Title 34, Ch. 25, are intended to supplement rather than supersede ordinary causes of action. Anderson on Declaratory Judgments, § 48. In harmony with this principle it is well settled that declaratory relief should be withheld when the same questions are already at issue in a pending case.”
(Citing Cases.)
It must be conceded that, in the case before us, the issue (was the deceased an employee of Mid-State?) was pending before the Commission when the circuit court attempted to assume jurisdiction and decide the same issue.
Granted.
Harris, C.J., concurs. | [
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John A. Fogleman, Justice.
Appellant seeks reversal of a judgment against Mm for $941.25 and interest, for repairs by appellee to a mechanical cotton picker owned by appellant Hawkins. Appellant used the machine in custom cotton picking for others. Appellee alleged that the amounts charged for the goods, parts, materials and labor were fair and reasonable market prices which appellant agreed to pay. In appellant’s answer and counterclaim, he denied that he was indebted to appellee in the amount alleged, and sought to recover damages for failure of appellee to put the cotton picker in serviceable condition. He alleged that he was damaged in the sum of $1,100 because he was unable to use the machine for three days during the 1966 harvest while it was being put in operating condition. In compliance with an order of the trial court, appellant amended his pleading to allege his version of the agreement with reference to repair of the picker, and to state his contention concerning subsequent repairs necessary to put the machine in operating condition. He stated that his damages arose out of his inability to use the macMne for three days in harvesting for one Byron Moore, Sr.
Glen Sanders, store manager for appellee, found the account of Hawkins in the office records when he came to its Blytheville shop in April of 1966. He knew nothing of an agreement for the repairs. Mr. Sanders is a mechanic. He also found the cotton picker in the shop and supervised its repair. He prepared an invoice from tickets showing charges of $941.25. He stated that the account was due October 15, 1966, and first called it to appellant’s attention in late November 1966. On that occasion he called Hawkins to his office and they discussed the account. He denied that Hawkins, at that time or at any time, had mentioned the failure of the machine to function properly. He testified that Hawkins first told him that the picker was not working properly sometime in December.
Sanders also testified that field adjustments are necessary following shop repairs to any such machine. According to him, settings and adjustments of certain working parts cannot be made in the shop. He added that whenever a cotton picker sits without use, rust accumulates in the water lines, necessitating their being flushed before the machine is used. The moisture control bars were not checked by appellee.
Although Sanders never advised appellant that it was company policy to send a repairman to the field to make the necessary adjustments, he testified that this is a recognized service in this area.
Hawkins testified that one Johnnie Lendennie, then an employee of Delta Spindle of Blytheville, Inc., solicited the job of repairing the picker for appellee in January of 1966. Hawkins said he agreed, with the understanding that all things necessary to prepare the machine for the 1966 harvest be done. According to him. nothing was ever said about the price he was to pay He claimed to have seen his cotton picking machine ir appellee’s shop several times over a three-month period without any repair work having been done on it.
The first work appellant was called upon to do in 1966 was in early October, when he was offered $2.0C per hundred pounds for harvesting* the 300-acre cotton crop of Moore. Having no water supply where he stored his machine, Hawkins stopped at Tractor Supply, where Johnnie Lendennie was then employed, to get water. He was unable to get water to the moisture columns because a water valve failed to function. After Lendennie repaired this, other parts in need of repair were found. According to appellant, this was not a mere matter of adjustment, but was work which he had contracted to be done by appellee. Hawkins said that he didn’t call appellee because he was aggravated and in a hurry. Instead, he directed Lendennie to proceed with the necessary repairs. This took three days, during* which time other machine operators worked in the Moore fields. Hawkins testified that he could have grossed $420 and netted $380 per day by operating* his machine during this period. He did work in the Moore crop for three days, earning $1,250. The repairs made by Tractor Supply cost him nothing. He professed that he had no knowledge of appellee’s policy to make adjustments in the field.
Appellant had not received any statement from appellee for the work done by it until after these repairs had been made by Tractor Supply. "When Saunders called him, Hawkins went to appellee’s place of business. According to him, he then advised Sanders of appellee’s failure to properly repair the machine. He related that the parties were unable to come to any agreement after a similar conversation in December.
Lendennie corroborated appellant as to the deficiencies in the repair of the cotton picker and as to the work necessary to put it in operating condition. He admitted that the five hours’ work required could have been done in one day rather than over a three-day period, and, with a crew like that of appellee’s, in one-half day.
Charles Moseley, an employee of a competitor of appellee, confirmed that it was customary for an em ployee of the firm repairing a cotton picker to be sent to the field with it, not only to make adjustments, but to test it. He testified that it was very seldom that such a machine would function properly after repair without field adjustment.
The court directed a verdict for appellee on the complaint in the sum of $941.25. It also directed a verdict for appellee on the counterclaim of appellant for want of any agreement between the parties with regard to special losses or damages or notice to appellee of the failure of the machine to function.
■ Appellant had moved for a directed verdict on appellee’s complaint for the reason that there was no evidence that the charges were fair, just, and reasonable for the work done. This motion was denied. This was error for which we must reverse the judgment.
Where labor or material is furnished by a party and no price is agreed upon, the law will imply an agreement to pay what it is worth. Dixon v. Kittle, 109 Ohio App. 257, 164 N.E. 2d 806, (1959). If a contract makes no statement as to the price to be paid for services, the law invokes the standard of reasonableness and the fair value of the services is recoverable. Weber v. Billman, 165 Ohio St. 431, 135 N.E. 2d 866 (1956). See, also, 17 Am. Jur. 2d 782, Contracts, § 344; 58 Am. Jur. 542, Work & Labor, § 39. This principle has been applied by this court in cases involving professional services. Bayou Meto Drainage Dist. v. Chapline, 143 Ark. 446, 220 S.W. 807; White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W. 2d 672. There is no reason why it should not be applied in the circumstances existing here. The burden was upon appellee to show that the amount for which it sought recovery was the fair and reasonable value of the parts, materials and labor furnished. It failed to do so.
Appellee contends, however, that there was an account stated because appellant did not make any complaint about the statement rendered. The parties had not the sort of mutual dealings out of which the normal account stated arises. Appellee did not bring its action on an account stated, but actually alleged that its charges were the fair and reasonable market prices for the labor, parts, goods and materials furnished. Assuming, without deciding, that there is evidence tending to show an account stated, the retention of the statement by appellant without complaint is only some evidence of an account stated which would, at the most, raise a jury question. Hamilton Brown Shoe Co. v. Choctaw Merc. Co., 80 Ark. 438, 97 S.W. 284. See, also, May & Ellis Co. v. Farmers Union Merc. Co., 120 Ark. 316, 179 S.W. 490.
Appellee also argues that the question of reasonableness of the amount charged was never placed in issue. We find the denial in the answer that appellant was indebted to appellee in the amount set forth in the complaint to be sufficient to raise the issue.
Appellant also contends that the trial court erred in directing a verdict against him on his counterclaim. In the absence of any allegation or proof that special notice was given to one repairing a machine that if it failed to function properly after the repairs were made damages such as those sought would result, there can be no recovery. Interstate Grocer Co. v. Namour, 201 Ark. 1095, 148 SW. 2d 175. See, also, Bay Aviation Services Co. v. Southland Aviation Co., 211 F. Supp. 125 (W.D. Ark. 1962). Appellant contends, however, that appellee knew that he used his cotton picker for custom harvesting, and this knowledge, coupled with the nature of the machine to be repaired, is sufficient to charge appellee with the required notice. We do not agree. The rule stated in Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, 79 S.W. 1052, and consistently followed by this court, is restated in Lamkins v. International Harvester Co., 207 Ark. 637, 182 S.W. 2d 203. It requires not only that there must be knowledge on the part of the one to be charged at the time of the contract of the special circumstances out of which the damages arise, but also that the facts and circumstances be such as to make it reasonable to believe that he tacitly consented to be bound to more than ordinary damages in case of default on his part. No such allegation is found in the answer and counterclaim, as amended. The evidence adduced was not sufficient to support such a finding, therefore, we find no reversible error on this point.
Reversed and remanded for a new trial.
Ward, J., dissents.
Paul Ward, Justice.
I do not agree with the majority.
Considering the pleadings and the undisputed facts in this case I view it as two separate causes of action. When so viewed, when applied to the applicable law, the trial court reached the correct conclusion.
Cause One. Appellee, at appellant’s request, made numerous repairs on the machine in question. Appellee introduced in evidence exhibit No. 1 (Tr. 65) which sets forth fifty four repair items (ranging in price from seven cents to $69.16). Appellant does not anywhere contend all these repairs were not made, that they were not, properly made, or that the price was not reasonable. Under the holding in Griffin v. Hicks, 150 Ark. 197 (p. 203), 233 S.W. 1086 the above constituted “an account stated”. Therefore, under the record here, the trial court was correct in directing a judgment in favor of appellee.
Cause Two. In appellant’s cross complaint he contended he was damaged to the extent of $1,100 because the machine was not operable on a certain day in October. Appellant contends he could have made that much profit if he could have used the machine at that particular time. It is conceded by appellant that he did not notify or warn appellee there was a probability of such special damages. That being the situation appellant could not recover under the holdings in Interstate Grocery Company v. Namour, 201 Ark. 1095, 148 S.W. 2d 175 and in Lampkins v. International Harvester Company, 207 Ark. 637, 182 S.W. 2d 203. | [
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Carleton Harris, Chief Justice.
In the latter part of 1964, appellee John Shipp contacted appellants, a negro couple of Jonesboro, relative to making certain improvements on their home. The terms of the agreement are very much in dispute, but it is established that two separate contracts were entered into between Shipp and the Andrewses. The first contract provided for the installation of white wood grain aluminum siding on the entire exterior of the home, the installation of two aluminum storm doors, the placing of aluminum screens on windows, and some other items, at an agreed price of $2,250.00. Soon after the job was commenced, it was decided that additional work should be done, including a carport, a concrete driveway, the front porch being replaced with aluminum roof, a concrete floor, and certain other repairs, which, • according to Shipp, totaled $1,250.00. The total cost of the entire job, according to this appellee, was $3,500.00. Shipp testified that appellants desired that a debt owed a Jonesboro bank on the property be added to the indebtedness, although the exact amount due was not known by the Andrewses. Shipp said he then contacted Buford Martin, the other appellee herein, relative to whether the latter would “finance” the transaction. On December 22, 1964, appellants and Shipp executed a contract calling for an expenditure of $2,250.00. Shipp testified that shortly thereafter, the second contract, calling for the expenditure of $1,250.00, was executed . Shipp thereafter took the two contracts to a Blytheville attorney who regularly represented Martin, and directed that attorney to prepare a note and mortgage in the total amount of the two contracts, plus the indebtedness due the bank, plus the fee for abstract work, the fee for preparing the instrument, and the cost of recording the deed of trust. The attorney complied with these directions, and pre pared a note in the amount of $4,306.15; a deed of trust was executed to secure that amount. The note and deed of trust were dated January 20, 1965, and bore interest at the rate of 10% per annum, payments to be made in monthly installments. On the next day, the instruments were assigned to Martin. In February, 1967, Martin filed suit, seeking judgment for the alleged balance due, and asking for foreclosure if it were not paid. The Andrewses answered, asserting that Shipp had been guilty of fraud; that they executed the papers (contract) given them by Shipp in blank, and that he had inserted as the price an amount not agreed upon; that he had altered the documents signed, and they denied that Marlin was a holder in due course. Usury was pleaded, and appellants filed a cross-complaint against Shipp, asking for relief against him in case Martin was given judgment against them. He answered, denying any fraud or misrepresentation. Martin then replied to the An-drowses by asserting that he was a holder in due course of the note and deed of trust; that he had no notice of any defect, nor of any alleged usury in the original transaction. On trial, the court rendered judgment for Martin in the sum of $5,797.38, representing the balance due on the principal, interest accrued to the date of hearing, abstract and insurance premiums paid by Martin, and an attorney’s fee of $510.00, allowed under the provisions of the note. It was directed that, if the sum be not paid within 10 days, the property be sold by the commissioner of the court. From the decree so entered, appellants bring this appeal.
Three points are relied upon for reversal, but since we have concluded that the note was void because of usury, there is no need to discuss the other two contentions. The finding of usury is based upon the following facts:
Shipp testified that the first contract called for an expenditure of $2,250.00. lie also definitely stated tliat the second contract called for an expenditure of $1,250.00. The evidence established that the pay-off of the indebtedness due the bank amounted to $705.60. The abstracting amounted to $22.00, legal services (in preparing the note and deed of trust), $20.00, and the charge for the recording of the deed of trust was $2.50. These items total $4,250.19. It is immediately apparent that this total is $55.96 less than the $4,306.15 called for by the note. The note itself provides for interest at 10% per annum from date until paid. Consequently, if all amounts mentioned are correct, a prima facie ease of usury is made. The first contract was offered in evidence, and the amount of $2,250.00 is correct. There is no question but that the amount of the indebtedness to the bank was $705.69; nor is there any question but that the amounts listed for abstracting, legal services, and the recording of the deed of trust, are correct. Accordingly, the decisive item is the amount of the second contract. This contract was not offered into evidence; Shipp, however, stated definitely that it was in the sum of $1,250.00. Counsel for appellee Martin argues that there was testimony which indicates that the second contract was for a larger amount than that stated by Shipp, and he says simply that Shipp, relying on his memory, was in error in stating the amount called for in that agreement. The evidence that counsel refers to was given by Martin himself, who stated that he was present in the Andrews home when appellants, and Shipp were discussing terms of the proposed agreement(s). From Martin’s testimony:
“Well, of course, Mr. Shipp was talking to the Andrews about what was going to be done and I was interested, too, in what was going to be done as well since I was going to consider buying the paper from John Shipp so they was talking about what was going to be done in length, you know.”
When asked if he recalled the amount that was mentioned as the cost of the improvements, he replied:
“It was somewhere — it was $3,550.00, around $3,550.00. There was something said about $3,-550.00, then there was a question about a front door or something that they was talking about and I never did get that clear just what it was but there was $3,550.00 plus the pay off at the bank and I understood it was about- — around or between $600.00 and $700.00 owed to the bank. * * *
“I remember $3,550.00 and then I remember them mentioning something additional but I don’t know what that amounted to. * * *
“Yes, sir, Mr. Shipp and the Andrews talked about it and what I understood it was $3,500.00 for the repair on the house and then there was something else that they talked about afterwards.”
We do not agree that this testimony is sufficient to show that the amount agreed upon was other than as testified to by Shipp. In the first place, appellants and Shipp were apparently discussing various items that might be included in the agreement, no definite figure being established at that time. Of course, there is nothing definite about a front door — and the figure relative to the bank indebtedness mentioned by Martin was certainly incorrect. It will also be observed that Martin finally said that he understood “it was $3,500.00 for the repair on the house and then there was something else that they talked about afterwards.” This evidence falls far short of constituting proof that the second contract was for more than $1,250.00, or that the total on both contracts was more than $3,500.00. We are thus left with the figures relied upon by appellants to sustain the charge of usury, with no evidence in the record to contradict that contention. No effort was made to offer the second contract, nor was any reason given for its not being offered. This instrument, of course, would have clearly shown the amount agreed upon. The attorney who drew the note and mortgage testified that he prepared same in accordance with the two contracts handed him by Shipp, but he was never asked the amount set out in either agreement. There being no evidence that the contracts were for a greater amount than $3,-500.00, the note was usurious on its face, and it was incumbent upon Martin to show otherwise. This is the effect of the holding in Universal C.I.T. Credit Corporation v. Lackey, 228 Ark. 101, 305 S.W. 2d 858. In Jones v. Jones, 227 Ark. 836, 301 S.W. 2d 737, we held that the trier of the facts is justified in assuming, until convinced by proof to the contrary, that the difference between the principal of the loan and the face amount of the contract (note) represents interest on the debt.
We also point out that neither appellee, in either the pleadings or the proof, asserted that a mistake was made, and that an erroneous amount was sought because of inadvertent error.
Of course, even a holder in due course, i.e., one who takes an instrument for value, in good faith, and without notice of any defect, cannot rely upon this fact to defend against a claim of usury. If there is usury in the original instrument then the transfer of that, instrument to a third party does not eliminate the maker’s right to plead usury. Lyles v. Union Planters National Bank, 239 Ark. 738, 393 S.W. 2d 867. Actually, though not pertinent to this decision, it is doubtful that Martin could claim the status of a bona fide holder of the note, since he was really somewhat of a participant before the note and deed of trust were ever executed.
For the reasons stated herein, the decree is reversed.
It is so ordered.
The record is quite confusing as to the name of appellants. Frequently, it is termed “Andrews,” and about as frequently, termed “Andrew.” The two names were even used during their testimony.
Appellants denied signing a second contract.
Not the same attorney representing appellee in this litigation.
According to Martin’s bookkeeper, the Andrewses had only-paid $74.26 on the principal, although the Martin complaint set out that a total oí $720.00 had been paid on the note.
The attorney who prepared the instruments testified that this was the amount of the check that Martin paid to the bank | [
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Carleton Harris, Chief Justice.
This appeal relates to the trial court’s action in granting a summary judgment. On June 10, 1965, around 10:30 A.M., appellants, Lelon J. Bull and wife, were stopped, or in the process of stopping, for a red traffic signal at the intersection of Bridge Street and Central Avenue in downtown Hot Springs. Appellee, Carlyle Manning, approached the same intersection, and stopped (or was in the process of stopping) behind the Bull automobile when a third car, driven by Jessie E. Chote ran into the back of the Manning vehicle, knocking it into the Bull ear. Bull instituted suit against Manning, and against Chote . Appellants propounded interrogatories to Manning which were answered and made a part of the record. Subsequently, appellee filed his affidavit, affidavit of the investigating officer, and affidavit of Jessie Chote, and moved for summary judgment. Bull executed a counter-affidavit, but the court, finding that appellant’s affidavit did not establish negligence on the part of Manning, held that there was no substantial controversy but that appellants’ damages were caused by Chote, and summary judgment was entered in favor of Manning, the complaint being dismissed as to him. From such judgment comes this appeal.
We have, of course, held that a motion for summary judgment is similar to a motion for a directed verdict, in that the testimony must be viewed in the light most favorable to the party resisting the motion, and if there is any doubt whether a factual question exists, motion for summary judgment should be denied. Van Dalsem v. Inman, 238 Ark. 237, 379 S.W. 2d 261; Kealy v. Lumberman’s Mutual Insurance Company, 239 Ark. 766, 394 S.W. 2d 629. However, we do not agree with appellants that the court erred in rendering this judgment.
Let it be borne in mind that the real issue between appellants and appellee is whether appellee was guilty of negligence which ivas the proximate cause of appellants’ damages. This being true, let us examine the affidavits.
J. Timbs, a member of the Police Department of Hot Springs, stated that the drivers of the first and second cars, respectively Bull and Manning, told him that they were stopped in traffic waiting for other vehicles to move forward with the change of the traffic light. Timbs said that the automobile driven by Chote "did not have any brakes.” Manning executed an affidavit to the effect that he stopped his car between five and ten feet behind the Bull automobile, which was also stopped waiting for the traffic light to change; he had been stopped for approximately 20 seconds when his vehicle was struck from the rear by the car driven by Chote; though his foot was on the brake at the time, the force of the impact knocked his car forward into the rear end of the Bull automobile.
Chote stated in his affidavit that he was driving his car south on Central Avenue and noticed the cars stopped in front:
"When I started to stop, I must have missed my brake, because I ran into the back of the car stopped in front of me and knocked it into the car in front of it.”
Bull’s affidavit set out that as he approached the stop light, he applied his brakes and was about to come to a complete stop when he glanced in the rearview mirror and observed an automobile approaching “close behind me. Before I could come to a complete stop, the car immediately behind me crashed into my rear bumper and pushed my car several feet forward.” Appellants contend that the facts enumerated present a jury question, and particularly emphasize Manning’s answer to Interrogatory No. 10, where he was asked to describe how the accident happened. Appellee answered, “I had been stopped approximately 20 seconds when I was hit. I was looking ahead to watch for a change of the light when I was hit from the rear by a car driven by Jessie Chote. I was thrown up against the roof of my car and knocked into the rear of the Buick.” Appellants assert that these statements constitute an admission that Manning was not watching through his rear-view mirror, and that this alone should be sufficient to take the case to the jury on the question of negligence. We do not agree. There is no indication that there was anything that Manning could have done had he been watching through his rearview mirror. Certainly, in the seconds involved, he could not have pulled out of the line of traffic to avoid being hit — and he already had his foot on the brake. Chote stated that he saw the cars in front of him, so any signal (blowing horn) given by appellee would not have prevented the collision.
Appellants state that a jury should be allowed to determine whether appellee was too close to appellant’s car. As stated in Hartsock v. Forsgren, Inc.. 236 Ark. 167, 365 S.W. 2d 117:
“Tobe negligent a person must be in a position to realize that his conduct involves a hazard to others. In the Hill case we described a negligent act as ‘one from which an ordinary prudent person in the actor’s position — in the same or similar circumstances — would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.’ Later, in Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W. 2d 74, we added: ‘Foreseeability is an element in the determination of whether a person is guilty of negligence and has nothing whatever to do with proximate cause.’ Moreover, when the voluntary acts of human beings intervene between the defendant’s act and the plaintiff’s injury, the problem of foreseeability is still the same: Was the third person’s conduct sufficiently foreseeable to have the effect of making the defendant’s act a negligent one?”
Can it be said that Manning, in stopping within a few feet of Bull’s ear, should have realized that this act constituted a hazard, because someone might run into his car and knock him into the front car? To paraphrase Hart sock, “Was Chote’s conduct sufficiently foreseeable to have the effect of making Manning’s act a negligent one? We think the answer is an obvious “No” — but even if the answer were otherwise, appellants would still be confronted with the problem of proximate cause. Proximate cause is defined as a “cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.” AMT 501. See also Collier v. Citizens Coach Company, 231 Ark. 489, 330 S.W. 2d 74.
In determining the proximate cause of the accident, we of course, take into consideration all of the affidavits. When this is done, it becomes quite clear that the proximate cause of any damages suffered by Bull, was the fact that Chote either had no stopping power in his brakes, or did not apply his brakes. That he did not use them is admitted in his affidavit. Would the Manning vehicle have struck the Bull vehicle if Mr. Chote had not driven up behind them, irrespective of the distance mentioned as separating the Manning and Bull automobiles? We think the question can quickly be answered, “No.” The affidavits reflect that the Chote car struck the Manning car with great force, the engine in appellee’s car being knocked forward and off tbe motor mount, tbe body of tbe car crimped, tbe front doors thrown open (and wouldn’t shut), and tbe rear doors jammed to tbe extent that they would not open. Tbe tail pipe was driven through tbe muffler, and tbe rear bumper was knocked loose and down. In fact, it would appear that tbe presence of tbe Manning car probably saved tbe Bull car, and occupants, from greater damage, since it acted as a cushion between Bull and tbe on-rusbing Cbote automobile.
There was no error in granting tbe motion for summary judgment.
Affirmed.
Fogleman, J., concurs.
The cause of action against Chote is not involved, in this appeal, and the case against him is apparently still pending in court. | [
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John A. Fogleman, Justice.
John W. Mason, Willie Mason, Lee Edward Gray, Bernice Allen (nee Gray), Ruby Gray and Yasteen Gray Acklin appeal from an order of the chancery court entered on June 11,1968 denying their motion to vacate certain orders and decrees of said court. They contend that the decrees were void for want of jurisdiction. Á history of the litigation in which the decrees were rendered is essential to an understanding of the issues.
A decree of divorce was granted Besscie Mason in her suit against John (W.) Mason in the Pulaski Chancery Court in January 1958. The court retained jurisdiction for the purpose of settling the rights of the parties in certain real estate. Shortly after this decree was rendered, Besscie filed an amendment to her complaint for cancellation of certain deeds, alleging that John Mason had fraudulently induced her to join with him in the deeds conveying certain lots to his father (John T. Mason) and his mother (Eosie Mason), by representing that the instruments were mortgages. She alleged that John T. Mason had died, leaving the appellant, John W. Mason, and a brother surviving as his only heirs.
On February 10, 1964, appellee, Urban Benewal Agency of North Little Bock, filed an eminent domain action for the taking of the same lots in Pulaski Circuit Court. Besscie Mason and John W. Mason, Willie Mason and the Unknown Heirs of John T. Mason were made defendants in this action. Besscie Mason filed a motion to transfer this suit to equity, alleging that the Pulaski Chancery Court had retained jurisdiction in the divorce action to determine the rights of the parties in the real estate then taken and that she was the equitable owner of the property. The motion, which was granted, included a prayer that the actions b.e consolidated. Besscie Mason alleged in her motion that answers to her amendment in the divorce suit had been filed by John W. Mason and Bosie Mason but the matter had lain dormant until the filing of her motion to transfer and consolidate. On March 25, 1965, a decree was entered in the chancery court fixing the value of the property at $8,500 and vesting title in the condemnor. Appear anees of John W. Mason and Willie Mason by attorneys W. J. Walker and W. W. Shepherd and Resscie Mason by her attorney were noted in the decree. The Unknown Heirs of John T. Mason defaulted. Rosie Mason had died before the entry of this decree, but the cause had been revived against her heirs John W. and Willie Mason.
Final decree denying cancellation of deeds on the amended complaint of Resscie Mason was entered April 17, 1986. In this decree the interests of the parties in the compensation awarded for the property were determined, and the clerk directed to pay certain sums to the attorneys for the property owners and disburse the funds remaining to the property owners. The appellants who were not original parties to either action had then intervened as the Unknown Heirs of John T. Mason and Rosie Mason and appeared by their attorneys. Each of the appellants was allotted a share of the compensation awarded. The disbursements from the award included payments to the attorneys for appellants for their fees in the case. Disbursements of a part of the balance of the allotted shares were made to each of the appellants, except John W. Mason. His share was disbursed to an intervening creditor who had obtained a judgment against him, to another creditor, to Resscie Mason on account of her claim to personal property arising out of the divorce, and to his brother Willie to whom he had conveyed his interest in a part of the real estate.
It. is the contention of appellants that the order transferring the condemnation proceeding to the chancery court and the subsequent orders and decrees of that court were void. They base this contention upon the argument that the equity court acquired no jurisdiction because there had been no challenge to the right of the Urban Renewal Agency to take the property by eminent domain. They also contend that the action taken deprived them of their right to a jury trial in violation of the state and federal constitutions.
We find it unnecessary to consider appellants’ contentions because each of the appellants shared in benefits from the decrees of the trial court. One who shares in the fruits or benefits of a judgment or decree is es-topped to challenge its validity, even where there is a want of jurisdiction of the subject matter. Morgan v. Morgan, 171 Ark. 173, 283 S.W. 979; Grain v. Foster, 230 Ark. 190, 322 S.W. 2d 443; Anderson v. Anderson, 223 Ark. 571, 267 S.W. 2d 316; Burgess v. Naill, 103 F. 2d 37 (10th Cir. 1939); 49 CJS 884, Judgments, §453. For this reason, the order of the trial court is affirmed. | [
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Paul Ward, Justice.
This is an appeal from a chancery decree refusing to enjoin the enforcement of an execution issued by a municipal court.
On October 27, 1961, Air Conditioning’ Training Co. Inc. (appellee) filed a suit in the Little Rock Municipal Court seeking a judgment for $300 against Aaron J. Fortner (appellant). On November 7, 1961, appellant filed a demurrer. The municipal judge overruled the demurrer, and entered a default judgment against appellant in the amount prayed for plus court costs. On or about March 1,1966, the Clerk of the Municipal Court issued a Writ of Execution on the judgment and placed it in the hands of the sheriff for service on appellant.
On March 25, 1966, appellant filed a Complaint in the Pulaski County Chancery Court, First Div. asking that court to enjoin the sheriff and appellee from further attempting to enforce the Municipal Court judgment “until such time as the issues are joined by proper pleadings and a trial is held”.
After a hearing, on stipulated facts, the chancellor dismissed appellant’s cause of action, holding that appellant “should pursue his appellate remedies before taking further action ...” This appeal follows.
Under the record and stipulated facts in this case we hold that the trial court was correct in dismissing appellant’s complaint.
As stipulated by the parties, there appears (Tr. p. 23 Ex. 4) a “Petition” by appellant asking the Municipal court to set aside the judgment for $300 entered on March 5, 1962, which stated that appellant had no notice of the hearing and did not know a judgment had been rendered until March of 1965. Said Petition asked that the judgment be set aside and be declared void. In regard to said Ex. 4 the parties stipulated: The jacket in the case has on it “Petition, 7/7/65 by atty-defendant” and on the back side there is this notation “Petition to set aside judgment denied, Q. G-., 12-1-65”.
Appellant followed the proper procedure to set aside the original judgment rendered on March 5, 1962, as is provided in Ark. Stat. Ann. § 29-506 et seq. (Repl. 1962), but the mistake appellant made was in failing to appeal from the order of December 1, 1965, denying his petition.
In the case of North Little Rock Transportation Co. v. Songster, 210 Ark. 294, 195 S.W. 2d 549, the facts were very similar to those in this case. There, among other things this Court said:
“We think appellees, petitioners, lost their right of appeal through their own inattention, and are seeking to use the writ as a substitute for appeal . . .”
It is our opinion, therefore, that appellant cannot substitute this action in chancery court for the right which he had to appeal from the Municipal Court order.
Affirmed. | [
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John A. Fogleman, Justice.
Appellant seeks reversal of a decree refusing rescission of an accident insurance policy issued by it to appellee and granting judgment in favor of appellee for the accidental loss of a foot. Determination of the appeal depends on the propriety of the chancellor’s finding that recovery was not barred by any misrepresentation, concealment or omissions by appellee. Wc find no reversible error in the chancellor’s decree.
Appellee Alexander applied for the policy of accident indemnity insurance in October 1966. He suffered the loss of his left leg below the knee by reason of an accidental gunshot would to the left foot in December 1966. When a claim was asserted, appellant instituted this action for rescission of the contract on the grounds that issuance of the policy was based on misrepresentation, misstatement and omission of facts in the application therefor. Appellee counterclaimed for benefits for loss of a limb as a result of an accidental gunshot wound.
Appellant contends that the decree of the chancellor should be reversed because of misrepresentation, omissions and concealment of facts, and incorrect statements by appellee which were material to the acceptance of tlie risk and because it would, in good faith, not have issued the policy if the true facts had been known to it. Appellant relies on the failure of Alexander to disclose previous diagnosis of heart disease and failure to mention exploratory heart surgery to support this contention.
The application was filled out by Alexander himself. The material portions thereof were as follows:
United States Navy Department records indicate that an electrocardiogram given Alexander April 15, 1928, was essentially negative and that he had no heart lesion on June 7, 1928. Later, an electrocardiogram administered to Alexander suggested some myocardial changes. He was discharged on December 13, 1928, with a diagnosis of chronic myocarditis. Navy medical reports indicate that Alexander had been first treated on an original diagnosis of malaria, but that subsequent tests for this disease were repeatedly negative. These records also indicate that Navy medical authorities believed Alexander had tuberculosis at the time of his discharge, in spite of repeated negative results of tests and x-rays examination.
It was also shown that Alexander had undergone surgery consisting of exploratory paricardotomy, exploratory thoracotomy, and biopsy of a lung, in Denver in September 1954, after a pre-operative or provisional diagnosis of constrictive pericarditis. The postoperative diagnosis was “undetermined,” and the final diagnosis was disseminated lupus erythematosus. A diagnosis of mild pulmonary emphysema was made from the lung biopsy. The medical reports indicate that the surgical exploration revealed no indication of pericarditis. Alexander testified that the surgeon had told him after the operation there was nothing wrong with his heart.
Other hospital reports record, a previous diagnosis of myocarditis as medical history. An inference might well be drawn that Alexander furnished the information upon which these records were made.
Appellant relies heavily upon the failure of Alexander to respond affirmatively to the interrogatory in his application relating to heart trouble. We find no basis for their contention in this respect. The evidence does not disclose any misrepresentation, omission, concealment or incorrect statements on the part of Alex ander in answering this question in the negative. The application required a “yes” or “no” answer to a question which asked the applicant to state, to the best of his knowledge and belief, whether he had ever had certain diseases including heart trouble. Although there is no doubt that previous diagnoses had indicated that Alexander might have had heart trouble of some nature, the evidence relating to this exploratory heart surgery and testimony of Dr. Allen Talbott, who had been Alexander’s physician since 1951, justify a finding that the previous diagnoses were erroneous. The application form did not ask the applicant to state whether he had ever been examined for heart trouble, whether he had been subjected to tests for heart disease or whether any diagnosis of heart trouble had ever been made. See Reserve Life Ins. Co. v. Baker, 245 Ark. 854, S.W. 2d. We take the term “heart trouble” to be the equivalent of “heart disease.” See Webster’s New International Dictionary, Second Edition. Dr. Talbott’s testimony, after he had been examined extensively with reference to previous diagnoses indicating Alexander had myocar ditis or pericarditis and with reference to the surgery performed in Denver, was that Alexander had not ever had heart trouble, to his knowledge. He further testified that the reports of the heart surgeon in Denver indicated that Alexander’s heart was perfectly normal, that there had been no evidence of heart disease since that surgery, and that it is very likely that Alexander would not have been living at the time of trial if he actually had had the heart condition suspected when the surgery was performed. In view of this testimony, the answer given by Alexander as to his knowledge and belief cannot be said to have been incorrect.
Where, as here, answers are not warranties, an applicant for insurance is not required to enlarge upon the interrogatories in an application nor to interpret them in any sense other than that which the language employed and the circumstance of the inquiry suggest. Federal Life Insurance Company v. Hase, 193 Ark. 816, 102 S.W. 2d 841. In tlie opinion in that case, Cooley’s Briefs on Insurance was quoted to the effect that a mere layman cannot be presumed to know the existence of a disease which a physician cannot discover, or about which physicians differ in opinion.
Another basis of appellant’s argument that rescission should be granted is that Alexander’s failure to disclose the surgery he underwent in Denver in 1954 wms a concealment or omission, under provisions of Ark. Stat. Ann. § 66-3208 (Repl. 1966). Furthermore appellant says that the concealment or omission was material to the risk assumed by it, and such that it in good faith would not have accepted the risk if correctly apprised of the facts.
The application does show that Alexander failed to disclose this surgery. In his testimony during the trial, he said that he did not notice the inquiry as to details relating to operations when he filled out the application. If we assume that this was a concealment or omission sufficient to constitute a defense to the counterclaim or justifying rescission, still we cannot say as a matter of law that the fact that Alexander had this surgery was material to the risk. The materiality to the risk of a fact misrepresented, omitted or concealed is a question of fact so long as the matter is debatable. It is a question of law only when so obvious that a contrary inference is not permissible. Union Trust Co. of Maryland v. Kansas City Life Insurance Company, 300 F. 2d 606 (4th Cir. 1962), National Security Ins. Co. v. Tellis, 39 Ala. App. 445, 104 So. 2d 483 (1958); Prudential Insurance of America v. Gourley, 267 F. 2d 156 (5th Cir. 1959); Metropolitan Life Ins. Co. v. Milton, 74 Ga. App. 160, 38 S.E. 2d 885 (1946); Blazek b. North American Life & Casualty Company, 251 Minn. 130, 87 N.W. 2d 36 (1957); Sullivan v. John Hancock Mutual Life Insurance Co., 342 Mass. 649, 174 N.E. 2d 771 (1961); Mooney v. Underwriters at Lloyd’s, 33 Ill. 566, 213 N.E. 2d 283 (1966). This principle is applied to questions pertaining to acceptance of the risk as well as to those relating to the hazard assumed. National Casualty Co. v. Johnson, 219 Miss. 1, 67 So. 2d 865 (1953).
The burden was on appellant to sustain its contentions that the facts not disclosed were material to the risk assumed by it, or that, it in good faith, would not have issued the policy. To sustain this burden, appellant offered the testimony of the underwriter for its general agent. This underwriter stated that he had responsibility for acceptance or rejection of all health and accident insurance applications submitted to appellant since 1963. He stated that if Alexander’s application had shown that he had been treated for heart trouble in the Navy for myocarditis or operated on in 1954 for suspected constricted pericarditis, it would not have been accepted. The witness’ answers to questions relating to materiality to the risk and underwriting practices were as follows:
Q. With specific reference to heart conditions, what is the — does the company, and do you, as its underwriting agency, have any policy with respect to the acceptance of heart cases, or suspective heart cases, for health and accident insurance ?
A. Yes, we do.
Q. What is that policy?
A. We do not issue the policy. —On applications, where there is suspeetive or heart conditions acknowledged.
Q. What is the reason for that policy of the company?
A. We feel that a person with a heart condition could become involved in an accident where we would have extreme difficulties trying to prove that death occurred through natural causes or that death occurred as a result of the accident. So, we do not want to put ourselves in the position of having to determine that.
Q. Is this type of insurance a low premium low income type insurance so far as the company is concerned?
A. Yes sir.
Q. From an underwriter’s standpoint, in determining whether or not the coverage would be accepted, is it material that the insurance applicant indicate whether or not he has had any previous medical treatment or surgery involving chest or heart surgery?
A. Yes, it is.
In support of his testimony, the underwriter introduced 54 applicants for accidental indemnity insurance rejected by him. Among these were some cases where applications indicated previous heart disease from which there had been full recovery, blood pressure variations, possible heart trouble, high blood pressure, or slight heart trouble. No applications for policies which were accepted were offered, and it is not shown whether appellant accepted risks of this nature on other applications.
As pointed out by the chancellor in his comprehensive opinion, the failure of Alexander to fill in the blank provided for details as to operations was obvious. Alexander admitted in a discovery deposition that it was his intention to utilize the space following the inquiry about claims for previous injuries or sickness to answer that question as well as the preceding one about surgery details. The underwriter stated that he so treated the application. Even so, the manner of handling the application is not wholly consistent with appellant’s present contentions. Not only was there no further inquiry about this obvious deficiency in the application before the underwriter reached his conclusion as to the applicant’s intention, but it seems that this application was treated differently from the usual one. Appellant’s underwriter testified that an exception was made in the acceptance of the application because Alexander worked for one of appellant’s agents in spite of the fact that he had been rejected by other insurance companies. Included in the examples of rejections introduced through him, are several over the signature of the witness that indicate rather flexible underwriting standards in cases such as this. For example:
“After reviewing your application for this coverage we very much regret that because of your past medical history and that both you and your wife’s ages exceed our underwriting limits, we cannot issue the policy. For your information we generally restrict coverage to white collar occupations in the age group of 18 through 65.”
“As you know, we normally decline requests for this coverage received from people with coronary histories. Mr. Tanner stated on his application that he had a heart attack in May, 1965. Therefore, would it be possible for you to obtain the Attending Physician’s Statement concerning this illness. This should include copies of any EKG-’s chest X-Rays, etc.”
(This application was rejected after the applicant was described as “worse than the average coronary risk.”)
“To begin, please understand that if I bent any underwriting rule, it would be for you because of our long and most pleasant business association. In this instance, I discussed your client’s heart condition with our Medical Director before declining the application. It was his opinion from a medical position, we should not write the policy. Further, it was doubted that your client could pass future FAA medical examinations. This, of course, is between ourselves and should not be discussed with the client.”
(This applicant stated that he had made possibly one claim per year for sickness or injury for the last 10 years.)
“Don, I am aware of Mr. Clark being one of your preferred clients and was willing to bend every rule in the underwriting booh to issue this coverage. I discussed this case with our medical director and it was his opinion we again reject Mr. Clark’s application due to his previous medical history.”
“Tour client stated in his application that he had a light coronary in 1960. While we would normally reject his application because of this, as a favor to you, we promise to explore every possibility of issuing the policy. Would you kindly have the attached Special Coronary Questionnaire completed and returned to us as quickly as possible.”
“Our underwriting regulations normally do not permit us to issue policies on individuals having a past history of heart trouble.”
“Normally, your blood pressure problem would prohibit us from issuing any form of accident coverage, but because you were formally one of our policy holders, we might be willing to make an exception in your case. Would you kindly obtain a. statement from your physician, outlining your present state of health, with particular attention to the blood pressure problem. Copies of any recent electrocardiograms would be extremely helpful.”
(All emphasis ours.)
It is significant, as pointed out by the chancellor, that appellant produced no record of its own underwriting standards, nor did it attempt to show general standards in the underwriting profession or insurance trade by disinterested witnesses. It relied solely on the retrospective and possibly self-serving declarations of conclusions by this witness. It would be only natural if such a witness were subconsciously influenced by the defensive mechanism possessed by human beings to forestall criticism of his underwriting decision. At any rate, his testimony cannot be considered as that of a disinterested witness. In weighing testimony, courts must consider the interest of a witness in the matter in controversy. Wasson v. Lightle, 188 Ark. 440, 66 S.W. 2d 652. Facts established by the testimony of an interested witness, or one whose testimony might be biased, cannot be considered as undisputed or uncontradicted. Sykes v. Carmack, 211 Ark. 828, 202 S.W. 2d 761; Skillern v. Baker, 82 Ark. 86, 100 S.W. 764. While the testimony of such a witness may not be arbitrarily disregarded, a trier of facts is not required to accept any statement as true merely because so testified. St. Louis-San Francisco Ry. Co. v. Grant, 185 Ark. 222, 46 S.W. 2d 640. It cannot be said that such testimony is arbitrarily disregarded when it is not consistent with other evidence in the case, or unreasonable in its nature or is contradicted. St. Louis-San Francisco Ry. Co. v. Grant, supra; Sykes v. Carmack, supra. Nor is it arbitrarily disregarded where facts are shown which might bias the testimony or from which an inference may be drawn unfavorable to the witness’ testimony or against the fact testified to by him. Missouri Pacific Railroad Co. v. Trotter, 184 Ark. 790, 43 S.W. 2d 762; Bullock v. Miner, 225 Ark. 897, 286 S.W. 2d 328. When the conduct of any witness is clearily inconsistent with his tes timony and not satisfactorily explained, the trier of facts is justified in disbelieving the testimony. Feild v. Koonce, 178 Ark. 862, 12 S.W. 2d 772. In the opinion in the cited case, we quoted from 2 Moore on Facts § 1136, where Lord Stowell was, in turn, quoted as follows :
“* * * ‘I am not deaf to the fair pretensions of human testimony, but at the same time I cannot shut my senses against the ordinary course of human conduct. Conduct of a witness clearly inconsistent with his testimony and not satisfactorily explained is one of the most fatal species of impeachment,- because the trier of facts is thus justified in disbelieving the testimony without in any degree reflecting upon the integrity of the witness, who, it may be presumed, is a victim of the proverbial fickleness of memory — especially after considerable time has elapsed — or of various perturbing psychological influences which affect men of the highest probity as well as those of indifferent moral natures and operate with peculiar force if the witness is interested or otherwise biased.’ ”
These principles are applicable where the issue of fact, upon which the testimony is given, is the good faith of one of the parties. Holland Banking Co. v. Booth, 121 Ark. 171, 180 S.W. 978.
The chancellor did not consider the underwriter’s testimony on the question of materiality to the risk and rejected it on the issue of good faith. We cannot say that he was not justified in so doing. When we consider that appellant had the burden of proving that the omitted or concealed facts were material to the risk, or that it, in good faith, would not have issued the policy, the facts indicating possible bias in the testimony of the underwriter, the possibility of drawing inferences from the conduct of the underwriter in making exceptions inconsistent with the underwriting practices about which lie testified, and the retrospective nature of the testimony, we cannot say that the findings of the trial judge are against the preponderance of the evidence.
Appellant also contends that the attorney’s fee of $6,000 allowed by the trial court was exorbitantly excessive. It correctly states that the fee contemplated is not a speculative or contingent fee but such a fee as would be reasonable for a litigant to pay his attorney for prosecuting such a case. It is not correct, however, as suggested by appellant that the mere time involved is the only factor to be considered. The purpose of the statute allowing recovery of attorney’s fees is to permit an insured to obtain the services of a competent attorney. Mutual Life Ins. Co. of New York v. Owen, 111 Ark. 554, 164 S.W. 720. The amount of the fee allowed should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. It should not only be commensurate with the time and amount of work required but also with the ability present and necessary to meet the issues that arise. John Hancock Mutual Life Insurance Company v. Magers, 199 Ark. 104, 132 S.W. 2d 841. Also, we have often considered the sum recovered or the amount involved in an action in allowing fees or in considering fees allowed by trial courts. See e.g., Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S.W. 366; American National Ins. Co. v. Westerfield, 189 Ark. 476, 73 S.W. 2d 155; Commercial Union Assurance Co. v. Leftwich, 191 Ark. 656, 87 S.W. 2d 55; New York Life Insurance Co. v. Thweatt, 221 Ark. 478, 254 S.W. 2d 68. The statute requires that we do so in cases, such as this, where the insurance company brings suit to cancel a policy. Ark. Stat. Ann. § 66-3239 (Bepl. 3966). It is also appropriate that consideration be given to the trial judge’s acquaintance with the record and the quality of service rendered in the case. American Equitable Assur. Co. of New York v. Showers, 195 Ark. 521, 113 S.W. 2d 91. When we consider from an inspection of the record the nature of the cause, the novelty of some of the questions presented, the heat of the contest, the time necessary for preparation of the case, the standing and ability of the attorneys on both sides, and the knowledge of the trial court of the nature and extent of the services rendered, we can- . not say that this allowance on a recovery of $51,000 and interest was excessive.
Appellee took a cross-appeal from the action of the trial court allowing interest from May 1, 1967, the date on which appellant refused to pay appellee’s claim. He contends that interest should run from February 17, 1967, 60 days after the loss occurred. Interest accrues as a matter of law from the date the amount due became payable under the policy. Missouri State Life Ins. Co. v. Fodrea, 185 Ark. 155, 46 S.W. 2d 638; Hartford Fire Insurance Co. v. Enoch, 79 Ark. 475, 96 S.W. 393; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S.W. 959; Southern Insurance Co. v. White, 58 Ark. 277, 24 S.W. 425. The policy provides that indemnities such as this will be paid immediately upon receipt of proof of loss. It also contains a clause prohibiting the bringing of any action on the policy prior to the expiration of 60 days after proof of loss has been furnished. The allowance of interest from a date about 60 days later than the date on which the proof was submitted lias been held to allow a reasonable and sufficient time for payment. American National Insurance Co. v. Westerfield, 189 Ark. 476, 73 S.W. 2d 155. Appellee was entitled to interest beginning 60 days after the submission of proof of loss, at the latest.
Appellee prays for the allowance of additional attorney’s fees on this appeal. After considering the fee allowed by the trial court, the briefs filed here, the oral arguments made, and other factors proper for consideration, appellee is allowed an additional sum of $1,500 for attorney’s fees on this appeal.
The judgment is affirmed on appeal and reversed on cross-appeal. The judgment is modified to provide for interest on the $51,000 recovery from the 17th day of February, 1967.
Holt, J., not participating.
Harris, C.J., and George Rose Smith, J., concur. | [
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Lyle Brown, Justice.
Appellant Nell Bentrup, defendant below, was permanently enjoined from operating a beauty parlor in her home. The home is lo cated in North Little Rock and in a zoned area restricted to residences limited to one, single family residential nse. The property is also covered by a bill of restrictive assurances. Appellees are neighboring property owners of Nell Bentrup.
Appellant’s right to use a portion of the residence as a beauty parlor must fail because of the application of res judicata. In 1965, the same neighboring property owners who brought this suit against Mrs. Bentrup, brought suit against Mrs. Bentrup’s predecessors in title, Edward dowers and wife. In that case the sole issue was whether the Clowerses could legally operate a beauty parlor on the premises in question. Such activity was alleged to be in violation of the bill of assurance and also violative of the zoning ordinance restricting improvements to “residential use.” Whether the operation of a beauty parlor on the premises was a permissive nonconforming use was also placed in issue. The neighboring property owners additionally alleged the existence of a nuisance because of traffic congestion. The Clowerses were permanently enjoined from operating, or permitting to be operated, a beauty parlo]1 on the premises. That decree was dated May 28, 1965. Six months later the Clowerses deeded their lot to Mrs. Nell Bentrup.
The only difference we perceive, both in pleadings and issues, between the first suit and the present one, is that Mrs. Bentrup is presently the defendant, whereas the Clowerses were the principal defendants in the first case.
The latest case in point is Van Duyse v. Fleming, 245 Ark. 233, 432 S.W. 2d 10 (Sept. 23, 1968). Van Duyse sought an injunction to abate the obstruction of a natural drain by his neighbor on the north, Fleming. The prayer of Van Duyse was denied because the same question was litigated previously between Van Duyse and Fleming’s predecessor in title. “An existing final judgment or decree,” we said, "is conclusive of rights, questions and facts in issue as to the parties and their privies. Baumgartner v. Rogers, 233 Ark. 387, 345 S.W. 2d 476 (1961).”
In Langford v. Griffin, 179 Ark. 574, 17 SW. 2d 296 (1929), Langford’s predecessor in title was enjoined from inclosing an alley adjacent to Griffin’s lot. Lang-ford was held to be bound by that judgment in a subsequent suit where the issue over the inclosure was raised. In Cook v. American Cyanamid Co., 227 Ark. 268, 297 S.W. 2d 933 (1957), we held that under the doctrine of res judicata, the grantee stands in the relation of privy to the grantor.
Affirmed. | [
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John A. Fogleman, Justice.
The basic question raised by appellants is that of validity of a search and seizure. It was properly raised in the trial court by motions to suppress evidence and objections to testimony and evidence, all of which were denied and overruled. Although it appears that several charges were filed against appellants Walton and Fuller as a result of the investigation of which this search was a part, this appeal is taken from a judgment of conviction of appellants of the crime of possessing a Zenith color type television and a Zenith stereo type record player, alleged to have been stolen from one Chuck J. Carter, proprietor of Carter-Binley Appliance Company of Seymour, Missouri.
The investigation was commenced by Sheriff Mickey Owen of Greene County, Missouri, who came to Harrison in pursuit of a large quantity of men’s clothing and television sets said to have been stolen from business establishments in his county. After he arrived in Harrison on the morning of September 7, 1967, he was accompanied to the office of the municipal judge by the prosecuting attorney of the 14th judicial district, the sheriff of Boone County, Sgt. Earl Rife of the Criminal Investigation Division of the Arkansas State Police, and the president of a clothing store in Springfield, Missouri, from which it was charged that a large quantity of merchandise had been stolen. A hearing was held to determine probable cause for the issuance of a search warrant. A draft of an addidavit for a search warrant, which Sheriff Owen was prepared to execute, was presented to the judge and was in the following form (omitting formal parts):
“ Information has been presented to me, under oath, by George L. Hall, President of Williams Clothing Store, Springfield, Mo., that said store was burglarized on September 4, 1967 and 400 mens suits, three top coats, ten sport coats, five pants, eight three-piece combination sport suits of the approximate cost to us of $20,000.00; and further information has been presented to me by a confidential informant whose information has proved reliable before, and whom I believe to be reliable, and I believe this information given by said informant now is reliable and that I do in truth suspect that such property is concealed in the frame dwelling house, barns, tool sheds and other out buildings located on a forty acre tract of land owned by Ed Willis and Golden Rich Distributing Co., Inc., on the Cottonwood Road, Boone County, described as the SW NW 4-19-20, as recorded on deed appearing at book 96, page 446, said lands being used by Ed Willis and others at 5 miles North on Cottonwood Road in the State and County aforesaid, and pray a warrant from said Court to search said premises, dwelling house, barns, garages, outbuildings and automobiles situated on said lands and to seize any and all of the above property found thereon.”
Inquiry was conducted to determine probable cause for the issuance of the warrant, but the judge did not administer any oath to any witness. The hearing consisted of a reading of the affidavit by the judge, a statement by the president of the concern that a list attached to the affidavit was a description of the merchandise lost by it and affirmative responses of Sheriff Owen to inquiries by the judge whether he had on previous occasions relied on the unnamed informer and whether success had been realized as a result of this reliance. The judge also asked why the officers thought the property sought would be at the place to be searched by the time they got there and was told that the place was “staked out.” Sheriff Owen then signed the affidavil an oath was administered to him and the following war rant was issued (omitting formal parts):
“Information has been presented to this Court by Mickey Owen, Sheriff, Greene County, Mo. that the Williams Clothing Store, Springfield, Mo. was on the September 4, 1967 burglarized and robbed of approximately 400 men suits, 3 top coats, 10 sport shirts, 5 pants, 8 3-piece suits as further described on the attached list of stolen goods; and that he has reasonable cause to believe that said stolen goods along with recently stolen TV sets as per the attached list are stored in a dwelling house and outbuildings located on the SW NW 4-19-20 in Boone County, said property being owned by Ed Willis and Golden Rich Distributing Co., Inc., a corporation. That he has reason to believe that said property is being wrongfully and unlawfully concealed by the said Ed Willis and Golden Rich Distributing Co., Inc., some place on the premises of the above described property in Boone County, Arkansas said premises being now occupied by the said Ed Willis and Golden Rich Distributing Co., Inc., a corporation, and he requests that a Search Warrant be issued authorizing and directing that a search be made of said premises for said property. And it appearing to the Judge of the Boone County Municipal Court that there are reasonable grounds to believe that said property is being wrongfully and unlawfully concealed as aforesaid, you are hereby directed to search the premises aforedescribed in the day time for such property, and if the same be found that you take said property into custody and hold the same in your custody for further orders of this Court; and that you make due return of this writ to this Court.”
About three hours later the officers returned to obtain a warrant for a search of other premises. Upon inquiry by the municipal judge, without administration of any oath, they reported that their initial search resulted in the discovery of some of the merchandise sought and Sheriff .Owen stated that the informant mentioned in the affidavit he then proposed to sign was the same as the one from whom he obtained the information upon which the first search was based. Thereupon the affidavit was signed by Sheriff Owen and the search warrant issued. This affidavit was as follows:
“I, Mickey Owen, Sheriff of Greene County, Missouri, do solemnly swear that: on September 1, 1967, the Garter Hillen Appliance Co., Springfield, Missouri, was burglarized and 22 TY sets were stolen, as per the attached list setting forth the set and each serial number and description; that information has been presented to me by a confidential informant, which information I believe to be reliable; and that the information given to me in the past by said informant has been reliable; the information being that said TV sets were brought to Boone County, Arkansas, and that I do in truth suspect that such property is concealed in the business place of the Golden Rich Distributing Co., Inc., a corporation, on the Clarence Hudson property located on Highway 65N in Harrison, Arkansas occupied by Golden Rich Distributing Co. Inc. in the State and County aforesaid, and pray a warrant from said Court to search said property, including the business place, warehouses, storagerooms, garages, outhouses, automobiles, trucks and any other place of concealment located on said property, and to seize any of the said TY sets located therein.” The search warrant read (omitting formal parts) :
“Information has been presented to this Court by Mickey Owen, Sheriff of Green County, Mo., that on September 1, 1967 the Carter Hillen Appliance Co., of Springfield, Mo. was burglarized and that 22 TY sets of the description and value as set forth on the attached list were stolen; That lie lias reasonable grounds to believe, and upon probable cause does believe that said property was brought to Boone County and is now located on the Clarence Hudson property on Highway 65N in Harrison, Arkansas, in the buildings and other places of concealment located on said property occupied by Golden Bich Distributing Co., Inc. a corporation; That he has reason to believe that said property is being wrongfully and unlawfully concealed by one Golden Bich Distributing Co., Inc. and its officers and agents some place on the premises of the above described lands and the buildings and trucks thereon in Harrison, Boone County, Arkansas said premises being now occupied by the said Golden Bich Distributing Co., Inc., a corporation, and its officers and he requests that a Search Warrant be issued authorizing and directing that a search be made of said premises for said property. And it appearing to the Judge of the Boone County Municipal Court that there are reasonable grounds to believe that said property is being wrongfully and unlawfully concealed as aforesaid, you are hereby directed to search the premises aforedescribed in the day time for such property, and if the same be found that you take said property into custody and hold the same in your custody for further orders of this Court; and that you make due return of this writ to this Court.”
The rule requiring exclusion of evidence obtained as a result of a search and seizure violating the Fourth Amendment to the Constitution of the United States lias been held applicable (via the Fourteenth Amendment) to the states by the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). That court has also held that the standards of “reasonableness” for obtaining a search warrant are the same under both the Fourth and Fourteenth Amendments, saying that the latter imposes all the proscriptions of the former as to searches and seizures on the states. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623,10 L, Ed. 2d 726 (1963); Aquilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). In determining probable cause for the issuance of a search warrant, the magistrate must judge for himself the persuasiveness of the facts relied upon by a complaining officer and may not accept a complainant’s conclusions without question. Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958); Aguilar v. Texas, supra. While an affidavit for a search warrant may be based upon personal observations of the affiant, it may also be based, in whole or in part, on hearsay information. When it is based upon hearsay, the magistrate must be informed of some of the underlying circumstances from which an informant concluded that the object of a proposed search was where he said it was. He must also be advised of some of the circumstances from which the officer concludes that the informer (whose indentity need not be then disclosed) is credible or his information reliable. An affidavit, which does not contain any affirmative allegation that affiant speaks with personal knowledge of the matters contained therein and also fails to show that information given by an unidentified source was not merely his suspicion, belief or conclusion, has been held not to show probable cause. Aguilar v. Texas, supra.
The use of oral testimony to support an affidavit for the issuance of a search warrant satisfies Fourth Amendment standards of reasonableness. Miller v. Sigler, 353 F. 2d 424 (8th Cir. 1965); Gillespie v. United States, 368 F. 2d 1 (8th Cir. 1966). Under the Fourth Amendment, however, a magistrate may not properly issue a search warrant unless he can find probable cause from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not sufficient. Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159 (1933); Aguilar v. Texas, supra. Even if the additional information given the municipal judge in this case had been under oath and included in the affidavits, it did not supply any of the underlying circumstances supporting the statements which were contained in the affidavits. We are unable to find statements of underlying facts and circumstances meeting the tests required by the cited decisions of the United States Supreme Court which justified issuance of either search warrant.
The success of the search will not validate it since it was unlawful at its inception. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed 2d 441 (1963).
In view of this finding, it is unnecessary for us to consider other attacks made upon the search warrants. Since neither the television set nor the record player described in the charge in this case was the subject of either search, however, it remains for us to determine the effect of the invalidity of these searches upon this case. In doing so, we must apply the doctrine of the “Fruit of the Poisonous Tree.” Under this doctrine, both the indirect and direct products of an unlawful search must be excluded from evidence. Wong Sum, v. United States, supra. Even this doctrine does not require that all evidence be excluded as “fruit of the poisonous tree” simply because it would not have come to light but for illegal actions of officers. The question is whether the evidence to which objection is made was obtained by exploitation of the illegal action or by means sufficiently distinguishable to be purged of the taint of illegality. Wong Sun v. United States, supra. The burden is on the accused to convince the court that evidence is inadmissible under this doctrine. Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939).
It is undisputed that the particular property on which the present charge is based was not described in enther search warrant. When the officers arrived at the named premises for the second search, the warrant was read and then given to Walton. None of the offi cers asked either of the appellants any questions. In spite of this, Walton, in the presence of Fuller, voluntarily advised Sheriff Hickman of Boone County and Sgt. Rife that there was a quantity of other property besides the television sets for which the search was being conducted, and that he wanted to show them where it was. He told them that he had certain suits of clothing and the television set and record player upstairs in his living quarters. He said he had bought the television set and record player from Fuller and had gotten the television from among those downstairs. When the officers inspected (at the invitation of Walton) the serial number on the television set did not match any number on the list they had. After a discussion between the officers and Walton, it was agreed that the officers would not take these items, but conld come back at a later date and look them over. Later, on September 12th, Sgt. Rife and Carter, the alleged owner of the property, went to the premises, after a telephone call by Sheriff Hickman to Walton, and were admitted by the latter for the purpose of checking serial numbers. The serial number on the television set corresponded with a number on a list of property Carter alleged had been stolen from him. When they were unable to check the serial number on the record player because they had no screwdriver with which to remove the back of the instrument, Walton told them that it came in at the same time the television set did and to go ahead and take it because he knew that it belonged in “that stuff.” Under these circumstances, the property found in the Walton living quarters and his statements about them were not come about through exploitation of an illegal search. Walton also showed the officers other property which was not described in the search warrant then being executed. We find that there was a definite waiver of the requirement of a search warrant for any of this property.
For the reasons above set out, the television set and record player were admissable in evidence. How ever, neither the items discovered as a result of the two searches (except for those items not the object of the search, about which Walton voluntarily informed the officers) nor testimony relating thereto was admissible in evidence. Thus, identification of property which was inadmissible should have been excluded by the trial court as “fruit of the poisonous tree,” even though it was offered only for the purpose of showing intent and a course of conduct. Furthermore, statements of both Walton and Fuller made in the prosecuting attorney’s office, except for those portions relating particularly to property not listed in the second search warrant about which Walton volunteered information, were inadmissible as “fruit of the poisonous tree.” The erroneous admission of such testimony and evidence certainly cannot be said to have been harmless.
Although objection was made to the statements made in the prosecuting attorney’s office as being inadmissible under the rule announced in Miranda v. Arizona, 384 U.S. 448, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we find adequate evidence to support the trial judge’s finding that the warnings required by that rule were given, and that the statements were voluntary and made under waiver of the rights enumerated in the above case. Neither Walton nor Fuller was in custody at that time on any charge. Before interrogation, both were advised of their rights as to the giving of statements. There is nothing to indicate that either was not intelligent enough to understand the statement of his rights. Nor does it appear that either was not conscious that he was waiving them in answering questions. Walton actually signed a written waiver, on which his constitutional privilege against self incrimination and right to counsel are clearly and fully listed. There is no indication that this was not a free and voluntary act on his part. While Fuller did not sign the waiver, there is testimony that an identical statement of his rights was read to and by him before any interrogation, after which he expressed his willingness to answer ques tions. It was only after the interrogation was virtually concluded that he was asked to sign a written waiver of these rights, and he then stated that he wanted a lawyer “if it got down to where he had to sign something.” In addition to the warnings at the time of the interrogation of Walton and Fuller in the prosecuting attorney’s office, the evidence that both were advised of these rights at the time of the search is convincing.
While the State contends that Fuller has no standing to contest the validity of the second search, we feel that this argument is without merit under the circumstances of this case. It would be anomalous to say that one charged with possession of stolen property because of its presence on certain premises could not contest a search of these premises without showing his interest therein or his right to possession, occupancy or use thereof. See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).
In view of the disposition we make of this case, other questions raised by the appellants need not be determined.
The judgment is reversed and the cause remanded for a new trial. | [
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Carleton Harris, Chief Justice.
The question in this litigation is whether appellees and the public acquired an easement by prescription over a road located upon land belonging to appellant, F. A. Weigel, Jr. Appellees instituted suit in the Woodruff Chancery Court, asserting that the road, known as the Tobe Eoad, had been used by the general public for a period of time in excess of 30 years, but that appellants, during 1967, constructed a barricade across the road, preventing appellees and the general public from traveling same. The barricaded road, according to appellant was a “new” road, not in exactly tbe same location as tbe older one, dragline work having been performed on the ditches, and a motor grader having been used to clear up the road; an injunction was sought against appellants prohibiting the latter from maintaining the barrier. Appellants denied that the road was a public road, or that it had been used as such, but alleged that if the road had been used by the public for any length of time in excess of 7 years, the use was permissive and not adverse. The court entered a temporary injunction, but on hearing made the injunction permanent, finding:
“That the roadway known in the record as the ‘Tobe’ road was established in ancient times and has been used as a means of ingress and egress to and from the settlements along White River and Civilization until the mind of living men run not to the contrary. It seems to the Chancellor that the roadway became a public road by usage long before Plaintiff’s acquired title to the lands through which it ran and has never been abandoned by the traveling public. The fact that plaintiffs have acquired the lands, cleared the forest, destroyed the old road and constructed a new one on the same alignment generally would not destroy the right of ingress and egress to plaintiffs which goes back into antiquity.”
Prom the decree entered accordingly, comes this appeal. Por reversal, it is urged that the trial court erred in not sustaining appellants’ motion challenging the sufficiency of the proof at the conclusion of the evidence offered by appellees; it is further contended that the Tobe Road is not the same as the road presently existing, and it is finally asserted that any use made by appellees was permissive.
As to the first point, there is considerable evidence that the Tobe Road had been in use for a long number of years. Floyd Cooper, a resident of Augusta, described the road as one that runs along the township line between Sections 35 and 34 on the north side and Sections 2 and 3 on the south side. He stated that he used this road in going to and coming from his farm. This road leads to White River where it runs into another road known as the River Road. Cooper testified that he first started using the road in 1936; that he had hauled his farm products in and out on this roadway, and that there had never been any fence, gate, gap, or other obstruction across it. The witness said that he had never been told to stop using it, and that he had never sought anyone’s permission to travel over it. There are other roads in the vicinity, one requiring 7 or 8 miles further travel, and another (Wire Road) requiring about 10 miles more travel, this last road also frequently being under water. The road (to be) was located on unenclosed timberland, and for over 30 years, had wound through the woods. According to Cooper, slight changes in the location occurred from year to year due to mud holes, but the road which Weigel had constructed was pretty well in the same location, i.e., no more than 10 to 20 feet away from the original location.
Ray McSpadden, a landowner in the area, testified that he had used the Tobe Road 95% of the time as the nearest and most direct route to his farm; that he had used it for about 9 years; that it liad never been closed at any time until appellants’ action about 2 months previous to the litigation. McSpadden said that the road had not changed its course and direction, except that it was now a little south of the previous location. The witness said that he probably made 300 trips a year over this roadway.
W. H. Foster, a landowner in the White River bottoms, testified that the Tobe Road had been used as long as he could remember, and he mentioned several persons, including his grandfather, who had used it. He said that all the families that lived south of the county road had to use the Tobe Boad to get out from the bottoms, because the Wire Boad was too low and frequently flooded. This witness testified that there had never been any obstructions on the Tobe Boad, and he had never been told previously by anybody not to use it. He said that no one ever sought permission to use it.
Jim Nelson testified that the road had been used as far back as 1918.
Henry Parker had lived in the area until 1940, and he said that the road was open during the entire time that he lived in the vicinity (1921 until 1940); that it had been used to bring out the crops. The witness said that he had not been back to the area until about 2 years before the trial, at which time the land had been cleared; though the present road was a great deal straighter than the original Tobe Boad, “ generally the road was in about the same area.” He said that, back in the ‘30’s, the Tobe Boad was “cut back” every year by the people who lived in the area, though the owner of the land never participated in this effort.
Jim Barnett likewise testified that he had frequently used the Tobe B.oad from about 1933 to about 1935. Pie said that the location of the improved road is ‘ ‘ pretty close to the old one.”
Gentry England testified that the road had been used for the last 41 years; that people farming on the river would cut trees or bushes along the edge of this road, and remove all other obstructions which had fallen into the roadway.
At this point appellees rested, and appellants filed a written motion to dismiss the complaint. The court overruled the motion, and this action is assigned as error. It is pointed out that the lands were open, unenclosed, and unimproved, and. this being true, the presumption is that the use of the roadway was permissive. Appellants then assert that permissive use of a road will never ripen into a prescriptive easement, and accordingly (it is argued) it makes no difference how long the road was used. We do not agree that the record reflects that the use of this road commenced by permission of the owner or owners, but even if that were true, we could not agree that this complaint should have been dismissed. In Fullenwider v. Kitchens, 223 Ark. 4-42, 266 S.W. 2d 281, this court said:
“A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear, in our opinion, that no real conflict exists. All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or -where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.”
In Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225, we held that the granting of such a motion was proper only if the evidence, when given its strongest probative force, failed to make a prima facie case. We then pointed out:
“* * * Furthermore, in many instances the plaintiff’s prima facie case must necessarily be somewhat weak, for the reason that only the defendant himself may be able to supply details needed to complete the picture. If the case goes to the trier of the facts on the plaintiff’s proof alone, the defendant has the advantage of not exposing weaknesses in his own armor unless called to the witness stand by his adversary. For these reasons we have no hesitancy in adopting the majority rule as to the function of a demurrer to the evidence. ’ ’
Actually, we consider that appellees plainly made out a prima facie case of acquiring a prescriptive right to the road in question. The evidence of the many witnesses is positive to the effect that this roadway was well known, and had been used by many different persons for at least 30 years; in fact, the witnesses (linking their testimony) testified to a definite use of the road from 1918 until it was closed by Weigel a few months before the litigation. There was no evidence that any of these people ever sought permission from anybody to travel over the land. Certainly this usage was open, and the length of time with which it was used without objection is potent evidence to show that the use was as a matter of right, and not as a matter of permission. Here too, there is evidence that many of the people who lived in the area and used the road would perform some type of work to improve the roadway. The court did not err in denying the motion.
After the overruling of the motion, appellants placed several witnesses on the stand. The testimony of some of these actually favored appellees. For instance, Dee Wood, a witness for appellants, was familiar with the road, and testified that it did not have any straight course, because there was too much timber; he had also been over the road after improvements by Weigel. The witness said that the old road was more crooked than the present one, but he couldn’t tell too much difference in the exact locations. lie said that it was easy to tell that lots of traffic traveled over the old road.
Cleo Peebles also testified as a witness for appellants. He said that he had used the road, and that it was crooked, running down through the woods. The new Weigel road had been moved east about 100 yards at one point, but otherwise, the road had just been straightened. Peebles stated that he had used the road with the owner’s permission, and “without it too.”
R. J. Haralson testified that he never did get any permission to use the road until he learned that a gate was being placed across it; that he talked with Weigel since he had to have some means of getting out when the Wire Road was not accessible, and was told by the latter that if he (Haralson) would help, they would build a bridge up' at the bay, and a road. Haralson testified that he paid $600.00 under this proposition. He was sent a key to the gate.
Doug Weigel, one of the appellees, and a nephew of appellant, Prank Weigel, was called as a witness for the appellants. This witness testified that his father and uncle had owned this land together as tenants in common. At no time during this ownership had the road ever been closed. As to the location of the “new” road with reference to the old one, Weigel stated that both ended at the same place, and had started at the same place until “this year:”
“They changed it here where it starts off the county road, but other than that it would touch from curve to curve all. the way through. It would touch, I would say, 95% all the way across to the lake. Prom the lake to the river it’s the same.”
According to this appellee, no changes had ever been made in the road until after his father’s death and a division of the property.
John Cook, Director of the A.S.C. office in Wood-ruff County, testified relative to aerial photographs of the area. He said that he could identify Big Jordan and Little Jordan lakes, but in 1962 there was no discernible road between them running ¡east and west. However, he stated that in 1966 (after appellant’s work on the roadway) he could locate this road.
Jim Kreis, one of the appellants, is employed by Frank Weigel as manager of the Weigel lands. He testified that the entire length of the Tobe Eoad was about 1% miles, and that a mile of the new construction was in a different location.
Frank Weigel, Jr., testified that the Tobe Eoad was a typical woods road, winding around the timber and, if bad in a spot, moving over. He said that he decided to straighten out the road which would give him more benefit from the use of it, and accordingly performed drag-line work on the ditches, purchasing a tractor with which to grade the road, and hauling in quite a bit of dirt to raise low places. Appellant testified that generally speaking, the road was in a different location from the original one. Weigel said that the use of the road had been by permission; that he did not know of anyone committing any act that would indicate a claim to the road by adverse possession. The work on the “neAv” road was accomplished in May and June of 1967. Weigel stated that he had not gotten any pipe or gravel from the county to use on the road, though he did admit that he had gotten two pieces of pipe from the County Judge, but stated that these had been placed under the county road. The witness testified that the pipe used for the Tobe Eoad was his own personal property.
The county judge subsequently testified that either Kreis or Weigel conferred with him about getting pipe, and that pipe had been picked up at two different times. He could not say where the pipe was placed, but he was informed that the pipe would be located under a road used by the public. The witness said that the county had been out some expense on all of the roads mentioned during the litigation, which, of course, included the Tobe Road.
Doug Weigel, called in rebuttal, testified that county employees had, at least on one occasion, graded the road with county equipment.
The authorities heretofore cited in this opinion, relative to appellant’s contention that the court should have sustained his demurrer to the evidence, also pretty well answer the other contentions.
As to the argument that the use of the land was pel-missive, Fullenwider v. Kitchens, (heretofore cited) makes clear that, even if the use was begun under permission, that fact is immaterial if it continues openly for seven years under such circumstances that the landowner would be presumed to know that this long continued practice was adverse. The long length of time that the road was used by many persons is, in itself, pertinent evidence of adverse use; actually, it appears from the record that this adverse use was established long before Frank Weigel, Jr., had any proprietary interest in the land on which the road is located. This was the finding of the Chancellor, and we think it is supported by a preponderance of the evidence.
Nor is there merit in the contention that this is a different road. Here again, the preponderance of the evidence is to the effect that the greater part of the “new” road is substantially in the same location as the old Tobe Road. This was testified to by Floyd Cooper, Henry Parker, Jim Barnett, Dee Wood, Doug Weigel, and Cleo Peebles, such testimony having previously been related.
Slight deviations from the accustomed route do not have the effect of destroying a claim to prescriptive right. This is the general rule, and there are cases, so holding, from numerous jurisdictions. In Carpenter v. Schnerle, 91 Neb. 806, 137 N.W. 850, the court held:
‘ ‘ Slight deviations from the line of public travel to avoid mud, pools, or natural obstructions will not necessarily prevent the establishment of a highway by prescription * * *.”
In Lindsay Land and Livestock Company v. Churnos, 75 Utah 384, 285 P. 646, that court stated:
“With respect to the certainty of the line or course of the road, the evidence was also sufficient to support the decree. While the public cannot acquire a right by use to pass over a tract of land generally, but only in a certain line or way, it is not indispensable to the acquisition of the right that there should be no deviation in the use from a direct line of travel. If the travel has remained substantially unchanged, and the practical identity of the road preserved, it is sufficient, although there may have been slight deviations from the common way to avoid encroachments, obstacles, or obstructions upon the road.”
The case of State v. Hull (Neb.) 97 N.W. 2d 535 (1959), cites the Illinois case of Mudge v. Wagoner, 320 Ill. 357, 151 N.E. 276, in which the facts are very similar to the instant litigation. There, the Supreme Court of Illinois said:
“Appellee contends that the record in this case does not show that the same line of travel was followed, and therefore does not show sufficient user by the public to justify a finding that a public highway exists. While the evidence shows that different persons using the road occasionally turned out and used other ruts, there is substantial evidence in the record that the width of the road as used does not extend over 16% feet. It is not necessary, in order to establish a public highway by user, that all vehicles that traverse it shall follow exactly the same rut. If the user is over substantially the same strip, changes in the wheel ruts, necessitated by condition of the road or occasioned by meeting other vehicles, do not constitute a change of location of the road. Nor is the fact, if it be a fact, that appellee in 1891 changed this road so that it extended directly north and south on the east side of his house rather than through his orchard sufficient to defeat the right of the public in the road for two reasons: First, the evidence shows that the right of the public had become established before such change was made; and second, the change having been made by appellee for his own convenience, he is not now entitled to say that, because those who desired to drive over the road followed it as he had changed it, the right of the public in the road as changed became destroyed. Where the owner of land over which a road extends changes the route for his own convenience, and the public continue the use of the highway as changed, the public right therein does not become extinguished, but the right of the public exists in the highway as changed. ’ ’
Affirmed.
Holt, J., not participating.
Emphasis supplied.
In McGill v. Miller, 172 Ark. 390, 288 S.W. 932, this court, in litigation involving the use of an alley, said:
“It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use, so as to ripen into title by a limitation.”
This case was cited in Fullenwider. | [
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George Rose Smith, Justice.
The issue here is that of usury in a contract for the construction of a shell home. The chancellor upheld the contract and ordered a foreclosure of Mid-State’s mortgage.
The material facts are not similar to those in any of the many usury cases that we have considered in the past fifteen years or so. Here Mid-State’s assignor, Jim Walter Corporation, agreed on April 7, 1966, to bnild a house for the Greens for a contract price of $6,-355, with the transaction being financed by the builder. The Greens agreed to pay the taxes and insurance premiums; so the only elements involved were principal and interest. According to the note and mortgage, the debt was payable in 144 monthly installments of $75.80 each, beginning June 15, 1966, and totaling $10,915.20. It is undisputed that the installment payments could have been at least $75.95 each without exceeding the maximum interest rate of 10% per annum. See Lake’s Monthly Installment and Interest Tables, p. 152 (5th ed., 1959).
Green had retired from the military service shortly before the contract was negotiated and had not yet found civilian employment. Having saved some money, he wanted to make ten monthly payments in advance, to give him time to find a job. The Walter Corporation salesman, Carl Allen, did not have a form of contract that could be used to put such a prepayment arrangement into effect. Allen suggested that the money be used as a down payment, but Green rejected that suggestion — presumably because he would still have been required to begin making payments sooner than he wanted to.
The note and mortgage were actually executed for the full amount of the contract price; that is, as we have said, for $10,915.20 payable in 144 installments of $75.80 each, beginning June 15, 1966. By oral agreement, however, Green obtained the desired ten-month moratorium by agreeing to pay the full amount of the first ten payments ($758) in advance— $500 on the day the contract was signed and $258 five days later. Pursuant to that oral understanding Green was not required to make any monthly payment until April 15, 1967, ten months after the first payment was ostensibly due on June 15, 1966. Upon the debtors’ default Mid-State, to whom the note and mortgage were assigned on June 17, 1966, brought this foreclosure suit on November 2, 1967. The defendants pleaded usury.
The contentions of the parties are clear-cut. The Greens insist that they were overcharged, because even though they paid $758 in cash at the inception of the contract, that amount was nonetheless included in the principal indebtedness, upon which interest was exacted at substantially the maximum rate for the full term of twelve years. Hence, say the Greens, the lender was charging interest as if the $758 cash payment had actually been advanced to the borrowers, although in reality the lender had the money from the outset in its own possession and available for its own benefit.
Mid-State counters by insisting that the Greens merely made a voluntary prepayment upon their indebtedness. 'They rely upon the rule that if an installment contract would not be usurious if paid according to its terms, the transaction is not rendered usurious by the debtor’s voluntary payment in full before maturity, although as a result the creditor receives a sum amounting to more than the principal plus the maximum legal rate of interest. Eldred v. Hart, 87 Ark. 534, 113 S.W. 213 (1908).
We do not wholly agree with either side — at least not to the full extent to which they would carry their contentions. We consider first the Greens’ argument. At the trial they introduced the testimony of a banker, Wayne Hartsfield. He testified that if the prepayment of $758 had been credited at once upon the principal debt, the balance of $5,597 could have been made payable in 144 monthly payments of $66.89 each. Under that schedule the Greens’ total payments would have been $1,283.04 less than the face amount of the actual note. By deducting from that difference the amount of the $758 initial payment, Hartsfield concluded that the Greens had been charged $525.04 in excessive interest.
Hartsfield’s computations manifestly do not jibe with the undisputed facts. No party to the contract ever intended, as Hartsfield’s theory assumes, that the Greens would begin mating monthly payments within thirty days. To the contrary, everyone agrees that the Greens’ prepayment was for the specific purpose of affording them a respite of ten months, at the end of which they would be in exactly the same position as if the ten payments had been made when due. Thus Hartsfield’s testimony presupposes a hypothetical situation so different from the actual facts that we have found his calculations to be of no assistance to us.
Nor can we go all the way with Mid-State’s insistance that the doctrine of Eldred v. Hart is controlling. That case had to do with a loan that was not usurious in the beginning. Of course a debtor cannot, by making a payment in advance of its due date, convert a valid loan into a usurious one. If that were the lav/ no one lending money at the maximum legal rate of ten percent per annum could afford to accept an installment payment even a few days before it was due.
On the other hand, the lender cannot be allowed to hold back part of the loan under the guise of an acceptance of voluntary prepayments by the borrower. We cannot lay down a rule that would open the door to the exaction of outwardly “voluntary” prepayment agreements from borrowers actually acting under the pressure of financial necessity.
In the study of the case we have explored a number of tentative theoretical and mathematical approaches to the problem, with a variety of results. We are now firmly convinced that no solution should be adopted that does not take into account two of the undisputed realities in the case:
First, the parties unquestionably intended for the Greens, at the expiration of ten months, to occupy precisely the same position they would have occupied if the payments had been made every month instead of all at once. That is, at the end of the ten months the Greens would have paid all the interest accruing up to that time and also would have made ten part payments upon the principal debt. No solution that fails to recognize those facts is acceptable.
Secondly, the problem cannot be solved by likening it too woodenly to a simple loan of money, with the lender withholding part of the principal. It must be remembered that the Greens, as of the date of the initial agreement, became entitled to a $6,355 house, for which they could lawfully have paid cash in advance. We are dealing with a sale on credit rather than a loan of money only. That points up a flaw in Hartsfield’s assumption that the $758 prepayment had to be deducted from the principal debt of $6,355. Such a theory might be acceptable with respect to a lender holding back part of the principal, but it does not apply with equal force to the seller of a house who delivers in a credit transaction the property agreed upon.
We have concluded that the transaction was not usurious. The simplest approach seems to us to be the best: All that really happened was that the Greens prepaid ten installments, comprising both interest and principal, that might have been paid over as many months. What did the Greens lose, or, conversely, what did Mid-State gain, by the prepayment?
At most the Greens lost the use of their money for ten months. Mid-State gained a corresponding advantage. Ten per cent interest upon the prepayment of $758 amounts to only $63.16. Lake, pp. 299 and 347. In fact, the Greens lost only a little more than half of the $63.16; for, by having agreed to pay the installments monthly rather than in a lump sum at the end of the ten months, they were never entitled to retain the entire $758 for the full ten months. Their actual loss appears to have been about $34.75.
The addition of $34.75 to the interest ag’reed upon would not put the total over the ten per cent limit, for the contract as written called for interest charges at least $90.45 below the legal maximum. We have already pointed out that the 144 monthly installments might have been increased by 15 cents each, or $21.60 in all. Also, the first monthly payment might have been made payable on May 7 instead of on June 15. That waiver of interest for 39 days provides an added leeway of $68.85. Hence the contract was valid. The fact that it was in writing answers the appellants’ subordinate contention that the maximum of six per cent, applicable only to oral contracts, should be applied. Ark. Const., Art. 19, § 13; Ark. Stat. Ann. § 68-602 (Eepl. 1957).
Affirmed.
Fogleman, J., dissents.
John A. Fogleman, Justice.
The majority has found a new test for usury, heretofore unknown to Arkansas law. As I understand this novel approach, it simply compares the arrangement made to the face of the note and mortgage by figuring the discount rate on the payments by appellants in lieu of the first ten payments. This is not, and never has been, the test for usury. Nor is there any real difference in a credit sale and a loan of money under the circumstances here. Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W. 2d 802. Although the note dated April 7, 1966 provided for payment of a $6,355.00 debt by paying 144 monthly installments of $75.80 each, beginning June 15, 1966, and totalling $10,915.20, the actual arrangement was somewhat different. Appellant paid $500.00 on the date of the note and $258.00 on April 12, 1966. According to the agreement, the monthly payments began May 15, 1967. The actual arrangement was the same as if appellants had paid $500.00 as a down payment on the date of the transaction and agreed to pay $258.00 on April 12, and 134 payments of $75.80 beginning May 15, 1967. In testing for usury, the amount to be considered as principal is the net amount of which the borrower or purchaser had the benefit for the full term. Smith v. Eason, 223 Ark. 747, 268 S.W. 2d 389. In this instance this would be $6,355.00 less $500.00, or $5,855.00. The test for usury is whether the total amount to be paid by the borrower or purchaser in performance of the agreement is in excess of the principal received, plus 10% per annum for the term. McDougall v. Hachmeister, 184 Ark. 28, 41 S.W. 2d 1088.
Where there are partial payments, the method of testing for usury is clearly set out in Lyttle v. Mathews Investment Co., Inc., 193 Ark. 849, 103 S.W. 2d 47, and followed in Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009. The proper method of calculation is to figure interest at the maximum rate on the principal up to the date of the first partial payment, add the interest to the principal, and deduct from the total the amount of the partial payment. Then, 10% interest for one month on the principal balance then remaining should be added, and from this total the next monthly payment should be deducted. This procedure should be followed until all 134 monthly installments have been taken into consideration. Of course, the monthly interest should always be figured on the principal balance and not on the accrued “interest.” Lyttle v. Mathews Investment Co., Inc., supra. If any principal balance remains after the application of all payments on this test, the contract is not usurious. This is only a test to determine whether the purchaser is being required to pay more than the maximum he could be required to pay. It does not mean that the payment of any interest would be required of the Greens during the ten months’ period while payments were excused, as suggested by the majority. The Greens would not be required to pay any more or any less. Under the proper test for usury and the agreement between the parties, the Greens would have paid $70.00 in excess of the legal maximum. The note is usurious, and should be canceled.
It must be remembered that this is not a case in which the agreement calls for compound interest. Such an agreement has been held not usurious in certain circumstances, with indications that other such contracts might be usurious under other circumstances. PhippsReynolds Co. v. McIlroy Bank & Trust Co., 197 Ark. 621,124 S.W. 2d 222. Nor is it a case in which the borrower (purchaser) agreed to deposit moneys in an escrow account with a third party in advance of the due date of payments, which probably would not render the contract usurious. It must be remembered that the seller here had full use of the $500.00 payment from the date of the original transaction and of the $285.00 beginning five days later.
I would reverse the chancery court and cancel the note and mortgage. | [
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George Rose Smith, Justice.
In a case decided in 1967 the appellee, Frank McGibboney, obtained a $1,350 judgment against Raymond Reed as damages arising from a traffic collision. Reed v. McGibboney, 243 Ark. 789, 422 S.W. 2d 115 (1967). Under our direct action statute, Ark. Stat. Ann. § 66-4001 (Repl. 1966), McGibboney brought this suit against Southern Farm Bureau Casualty Insurance Company, which is alleged to have been Reed’s liability insurance carrier on the date of the collision, August 23, 1965.
Southern Farm denied liability on the ground that Reed’s policy expired on July 18, 1965, and was not reinstated until August 25 — two days after the accident. The trial court, sitting without a jury, took the case under advisement and later entered judgment for the plaintiff upon a general finding that “Policy #320934, insuring Raymond Reed, was in force on August 23, 1965.” Upon such a general finding the case stands as if a properly instructed jury had returned a verdict for the appellee. Blass v. Anderson, 57 Ark. 483, 22 S.W. 94 (1893). Hence the single question here is whether there is substantial evidence to support the trial court’s finding of fact.
Before discussing the merits of the case we pause to answer the appellant’s contention that the venue should have been laid in Randolph county, where Reed lives, rather than in White county, where McGibboney lives. The objection was waived, because Southern Farm entered its appearance by filing a general demurrer to the complaint before raising any question about the venue. Murdock Acceptance Corp. v. Speer, 225 Ark. 948, 286 S.W. 2d 485 (1956); Greer v. Newbill, 89 Ark. 509, 117 S.W. 531 (1909).
On the merits it is possible that the trial court reached its general conclusion upon any or all of three findings of fact: (a) That Reed paid the premium on August 2, 1965, thereby reinstating the policy; (b) that the company should have applied funds in its possession, belonging to Reed, to pay the premium when it became due; and (c) that the company itself elected to treat the policy as having been reinstated as of August 21, 1965 — two days before the accident occurred. “VVe find the third ground to be a sufficient basis for the trial court’s judgment and therefore confine our discussion to that point.
Reed was in the insurance business at Pocahontas and had been Southern Farm’s agent for several years. He admittedly received notice that the liability policy on his Ford car expired on July 18, 1965. On August 25 — two days after the accident' — he sent a check to the company for the premium, with an application for reinstatement.
On the following day the company executed what appears to have been a printed form entitled Amended Declaration. That instrument identified Reed’s policy and recited that the declarations in the policy were amended to provide that the term of the policy ‘ ‘ shall be from the effective date August 25, 1965 to February 25, 1966 12:01 A.M. . . . and for such succeeding terms of six calendar months hereafter as the required renewal premium is paid by the insured on or before the expiration of the current term and accepted by the Company.” It is recognized by both litigants that the foregoing Amended Declaration effectively reinstated the policy as of August 25, 1965.
In October of that year Reed bought a second car, a Rambler. Under the company’s regulations Reed was entitled to a reduced premium rate upon each vehicle if he carried a policy on each one. On the first car the reduction would take effect when the policy was renewed at the expiration of its six-month term, in February, 1966.
Reed accordingly applied for liability coverage on the Rambler. The company issued a policy on that car and also executed and sent to Reed another Amended Declaration with respect to the first policy, which recited that the term of the policy “shall be from the 'effective date 08/21/65 to 02/25/66 12:01 A.M.,” etc., and that the renewal premium would be $26.75 (instead of $29.50). It will be noted that under this amended declaration the term of the policy began on August 21.
Southern Farm insists that the insertion of the date 08/21/65 was a mistake on its part and that the instrument should be construed to read 08/25/65, as in the earlier amended declaration. Ordinarily such a defense would be raised by a motion to transfer the case to equity, where the company would have the burden of proving its right to reformation by clear and convincing proof of a mutual mistake. Calvert Fire Ins. Co. v. Hardwicke, 232 Ark. 466, 338 S.W. 2d 329 (1960); Arkansas Mui. Fire Ins. Co. v. Witham, 82 Ark. 226, 101 S.W. 721 (1907). On the other hand, the contention can also be made in a court of law, in which ease the plea is not for an actual reformation of the contract but rather for an interpretation of its meaning in the light of all the attendant circumstances. Restatement, Contracts, § 507 (1932).
At the outset it is clear that MeGfibboney made a prima facie case when he introduced the second amended declaration, which expressly fixed August 21 as the effective date of the contract. The burden of overcoming the plaintiff’s prima facie showing then shifted to the defendant. In this court the question is whether the company’s rebutting proof is so conclusive that a jury of fairminded men would be forced to believe that the August 21 date should be disregarded as a mere typographical error.
We do not find the proof to be that conclusive. The controverted date, August 21, does not appear only in the second amended declaration, a copy of which was sent to the insured and relied upon by him. The cor- reeled date was also inserted in ink in the company’s file copy of the earlier amended declaration. It seems to be inherently unlikely that a mere typographical error would have been deliberately entered upon the earlier record.
Some explanation was evidently called for, but the insurer’s proof in that respect is markedly deficient. The only witness called to testify about the matter was Jack L. Simmons, the company’s office manager. Simmons had nothing whatever to do with the actual mistake, if there was one. He testified: “In looking at the figures, not having made this change myself, all 1 can do is try to determine what the coding clerk did... The only thing I can determine, she made a clerical error.” It is significant that the coding clerk, who alone appears to have had firsthand information about the matter, was not called as a witness, giving rise to an inference that her testimony would have been unfavorable to the insurer. National Life Co. v. Brennecke, 195 Ark. 1088, 115 S.W. 2d 855 (1938). On the record as a whole we cannot say that there is no substantial evidence to support the trial court’s finding of fact.
Counsel for the appellee are allowed an additional fee of $300 for their services on appeal.
Affirmed.
Fogleman, J., disqualified.
Brown and Jones, JJ., dissent. | [
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Conley Byrd, Justice.
This action was instituted in the county court by appellant Wells Riggs pursuant to Ark. Stat. Ann. § 76-110 (Repl. 1957), to have a private road established across the land of appellees Tony Bert and Avis Bert. The county court followed the procedure outlined in the statute, found the road to be necessary and assessed damages at $400. The Berts appealed to the circuit court where by agreement the only issues submitted to the jury were the necesstiy for the road and the amount of the damages. From a judgment on a jury verdict in favor of the Berts, Mr. Riggs appeals alleging that the trial court erred in permitting testimony concerning the total acreage owned by him; allowing evidence of an existing creek crossing on the Bert land at a point unrelated and unconnected with the lands in question; and that the verdict of the jury is not supported by substantial evidence.
The record shows that Riggs owns the EV2 of Lot 2 of the NWVé of Sec. 5, T 7, N-R, 30W, and that the Berts own the property to the west and south of the Riggs property. Big Vache Grasse Creek crosses Riggs’ western boundary in three places and his southern boundary in such manner as to leave a total of 18 acres, in two different tracts, west of the Big Vache Grasse Creek and bounded by property owned by the Berts.
Mr. Riggs testified that the best use of his land is for grazing cattle and that the' nature of the creek is such that when it floods, any cows on his property on the west side of the creek are trapped so that he cannot remove them from the flood hazards. He and his witnesses, including two of the viewers appointed by the county court, all testified that it was necessary for Riggs to have access across the Bert land to reach his two tracts; that the access across the Bert land would not materially affect the Bert property; and that the damages would be only $400.
Melvin Bell, an engineer, made an inspection of the creek and testified that it would cost from $8,000 to $14,000 to bridge tbe creek, depending on whether he used a low water bridge or a wooden bridge across the creek. He pointed ont that a low water bridge, of course, would not permit crossing during times of flood waters.
Witnesses called by the Berts, local residents of the area, pointed to a creek crossing on Mr. Bert’s land and testified that Riggs could make a low water crossing on his land at a cost of $150 to $200 by using a bulldozer to cut down the bank and filling the bottom with rock. Both Mr. Bert and his witness, Jack Neal, testified that the proposed road would damage his land in the amount of $15,000.
There is testimony by way of rebuttal that the crossing on the Bert property is a “natural crossing” because of a shale formation in the area.
On the issue of the necessity of access across the Bert property, the trial court instructed the jury in accordance with Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906), and from the record we are unable to say that there is no substantial evidence to support the jury finding that the access across the Bert land was not necessary.
The record shows that Mr. Riggs owns additional lands to the east of the property here involved. Testimony relative thereto may be irrelevant and immaterial to the issue of the accessibility of the 18 acres, but we are unable to find any prejudice with respect thereto.
The testimony relative to Bert’s crossing on the same creek was permitted by the trial court to show that a similar type crossing could be placed on the Riggs’ land at a reasonable cost. As we read the record, one of the issues in the case was whether appellant could cross the creek for purposes of using his land at a reasonable cost. We hold that such testimony was admissible for that purpose.
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Carleton Harris, Chief Justice.
This is the second appeal of this case . Arkansas-Louisiana Gas Company condemned approximately twelve acres of land for a pipeline right-of-way 80 feet wide across appellees’ farm. The jury awarded a verdict of $5,770.00 for damages, and appellant appeals that award to this court. For reversal, it is asserted that there is no competent evidence upon which the expert witnesses for appellees could base their evaluations, and it is further asserted that the verdict is excessive.
Elvie Davis, who had lived on the Maxey farm for four years, testified that it was a cattle farm, and about 110 or 115 head of cattle were on the premises. He said there were many large rocks on the right-of-way after the construction crew left the line, and also rocks on the land adjoining the right-of-way, having been blown out by dynamite, and scattered across the 12-acre meadow where the pipeline crossed. Davis testified that he broke his mowing machine and tore up a disc, and was only able to sow part of the field; he could not plow the right-of-way, as there were too many rocks.
Mrs. Dorothy Beckman, who had sold real estate for about six years, and who at the time of trial, also operated a cattle farm, testified that she was acquainted with land sales, and familiar with lands in White County. She described the condition of the right-of-way as follows:
“It is the biggest mess I ever looked at, you couldn’t get any kind of mowing machine in that hay meadow without ruining it. I don’t know how you could reseed it. Where it goes through the woods is nothing but rock on down toward Mr. Baker’s place, it looks like a rocky stream bed. There was some bluestem grass down there in the woods and they have blown that all out. I don’t know how anybody could grow anything there.”
The witness estimated the value of the farm before the taking at $80,000.00, and she stated that the value after the taking was $72,500.00, basing her opinion upon damage to the twelve and one-half acres right-of-way at $200.00 per acre, and the damage to the land outside the right-of-way, because of rock and debris left on it, at $4,000.00 - The estimate of damage included the fact that the land would have to he reseeded, and a doz-er obtained to bury the rocks.
C. L. Lewis, who had engaged in cleaning up land for about four years, and who owned his own dozers, testified that the cost of cleaning up and re-seeding the right-of-way and the adjoining premises would he between $4,000-00 and $5,000.00. Admittedly, the witness had never cleaned up any pipeline right-of-way.
T. H. Young, holder of a real estate license, and who had previously worked for a real estate office, testified that the difference in the before and after taking-value of the Maxey farm was $7,576.00, and in reaching this figure, he considered the cost of cleaning up the right-of-way, removing rocks and boulders from the land adjoining the right-of-way, and the hauling of top soil.
There was a drastic difference in the estimates of amount of damage given by appellant’s witnesses, but we are here only concerned with whether there was substantial evidence to support the verdict of the jury.
Appellant concedes that the court correctly instructed the jury as to the measure of damages (difference
Entirely aside from the fact that the jury was told to disregard the portion of her testimony relating to the amount the farmers considered their land to be worth, we have held contrary to appellant’s contention. In Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201, this court said:
“It is at once apparent that if we sustain the commission’s contention it will hardly be possible in the future for a land owner or an expert witness to give an admissible opinion about the value of property. In nearly every instance a landowner who has known his land for years, or an expert witness who has acquainted himself with a piece of property, takes into account facts that he knows only by hearsay or that for some other reason would not be admissible as independent evidence upon the examination in chief. If the witness’ candid admission that he has considered such matters destroys his testimony, only a dishonest or an ill-informed wit ness can give an admissible opinion about the value of property.
“The overwhelming weight of authority is contrary to the appellant’s present contention. It has repeatedly been held that expert or lay testimony is competent even though it is based wholly or partly upon hearsay. [Citing cases.]”
It is urged that the testimony of C. L. Lewis, relative to cleaning up the right-of-way, was inadmissible for the reason that he had never cleaned up a pipeline right-of-way- The witness stated that he had only cleaned up farming lands, but the jury was aware of this fact, and we do not think that the fact that he had not performed this exact job disqualified his testimony. The same is true of the testimony of Young', who had considered, in basing his estimate of damage, what he had been told by other persons relative to the charges for dozer rental. Mr. Young had bought and sold farms for his employer, though his greater experience had been in the residential field. Previous comment as to the testimony of the other witnesses likewise applies to this one. After all, we have held that the qualifications of a witness with respect to knowledge or special experience concerning the matters about which he testifies rests largely in the discretion of the trial court, and such determination will not be disturbed by an appellate court, except in extreme cases where it is manifest that the trial court has fallen into error or abused its discretion. Arkansas Power and Light Company v. Morris, 221 Ark. 576, 254 S.W. 684.
Appellant’s principal argument for reversal is based on the fact that the amount of damages awarded included restoration costs for the strip of land taken for the easement. It is forcefully argued that it is not proper for appellees to receive the fee simple value of the land within the right-of-way, and at the same time, require appellant to restore this land to its original con dition. It is admitted that damages to the adjoining lands, not taken, can he properly considered-
Of course, a landowner, although entitled to be paid the full value of the land within the right-of-way easement, still has an absolute right to continue using the surface of the right-of-way for other purposes not inconsistent with the use of the easement. In Arkansas Power and Light Company v. Morris, supra, we said:
“There appears to be no dispute as to the applicable rules of law applied by the trial court in these cases. The rule was reaffirmed by this court October 6, 1952, in Texas Illinois Natural Gas Pipeline Company v. Lawhon, 220 Ark. 932, 251 S.W. 2d 477, where we said: Under the law of this State, the owner of land is entitled to be paid the full value of the land embraced within the right-of-way easement, as if the fee had been taken even though the landowner, after the pipeline was constructed, had the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement. Appellant acquired by the condemnation proceedings the power to make such use of the right-of-way as its future needs required for the purpose for which the right-of-way was condemned. Baucum v. Arkansas Power and Light Company, 179 Ark. 154, 15 S.W. 2d 399’.”
However, in this litigation, it is not necessary that we discuss, or pass upon, this particular point for the reason that appellant is bound under the pleadings to restore the land taken, as far as possible, to its original condition.
The complaint filed by appellant asserts, inter alia, that after the pipeline has been laid “any and all ditches opened by plaintiff will be back-filled and leveled in such a manner that said real estate will be left in substantially the same condition as when entered upon by plaintiff. That all fences of defendants which may be cut in the construction of said pipeline will be repaired by plaintiff at its own cost and expense and restored to their present condition. That ruts and holes caused by the construction of said pipeline shall be filled and the ground placed as nearly as possible in its original condition. ’ ’
It is apparent from the pictures offered in evidence, and the testimony presented, that the right-of-way is not in substantially the same condition as before the taking, and, of course, a party litigant is bound by its pleadings. Harger v. Oklahoma Gas and Electric Company, 195 Ark. 107, 111 S.W. 2d 485.
Appellant also contends that the award is excessive. It is true that it is rather liberal, though it was approximately $2,000.00 less than the estimate of damage given by two of the appellees’ witnesses.
The jury was in a better position than this court to determine the proper amount to be awarded, and actually, any reduction that we would make would have to be based on pure guesswork. We are unable to say that the verdict was excessive.
Affirmed.
Fogleman, J., disqualified and not participating.
See Arkansas-Louisiana Gas Company v. Morgan A. Maxey, et ux, 242 Ark. 698, 415 S.W. 2d 52. The trial court erred in permitting appellees to show the value of timber removed from the land taken, this being included in the award for the full value of the land, and also erred in permitting certain incompetent testimony. The case was remanded for another trial.
In the first trial, appellees’ damages were fixed at $5,500.00.
The figures she used actually totaled only $6,500.00. in the market value of the lands before and after the taking), but it is insisted that the witnesses used erroneous methods in reaching their conclusions, and the result (it is argued) is that there is no substantial evidence to support the verdict. For instance, Mrs. Beck-man testified that she did not examine the records of sales in White County for comparable sales, did not use the income approach, and, in reaching her conclusions, gave some consideration to the price the farmers were asking for their lands. This last, of course, was not admissible, hut the trial court told the jury to disregard this particular testimony. Mrs. Beckman stated that it was not necessary that she look up sales, since she was already familiar with the value of lands in the vicinity. The proof reflected that she had sold property off and on for about six years, including a number of farms, and she stated that the basis that she primarily used for arriving at the fair market value was what other places were selling for.
This was done. | [
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George Rose Smith, Justice.
This suit was brought by the four appellants, Garrison Furniture Company, Ballman-Cummings Furniture Company, Ward Furniture Manufacturing Company, and W. H. Lillard, to quiet their title to about 91 acres constituting the southern part of a riparian tract, sometimes called Morris Island, that lies along the east bank of the Arkansas River in the city of Fort Smith. The principal defendant, Southern Enterprises, Inc., claimed title by adverse possession and also by a chain of conveyances beginning with a 1920 deed from the State Land Commissioner and ending with a 1964 deed from five individual codefendants to Southern Enterprises. The chancellor found that Southern Enterprises and its predecessors had acquired the entire 91 acres by adverse possession under color of title for more than seven years. The accuracy of that finding is the issue on appeal.
The river flows north as it passes the area in dispute. Morris Island, from its southern tip just north of the Garrison Avenue bridg;e, is separated from the mainland to the east by a deep narrow slough that is ordinarily filled with water. Through the years the island, comprising wooded areas and two or three open hay meadows, has been subject to inundation from time to time and was apparently thought to be of little value until the Government decided to make the river commercially navigable. This suit to quiet title was eventually filed by the appellants on January 19, 1967.
The four tracts owned by the four appellants lie in a north-south tier along the slough, with metes-and-bounds descriptions that purport to extend to the bank of the river. On the east side of the slough the tracts are in the furniture manufacturing district and are the site of furniture factories and appurtenant buildings. Beginning at the south, the tracts are owned successively by Lillard, Garrison Furniture Company, Ward Furniture Manufacturing Company, and Ballman-Cummings Furniture Company. The appellee Southern Enterprises owns the tract lying north of Ballman-Cummings.
For many years the channel of the river has gradually shifted back and forth. It is the appellants’ theory that the tract now in controversy lay on the east bank of the river when the Government originally surveyed the area. Thereafter the river gradually edged eastward, with the slough marking the line of its maximum eastward progress. Thereafter the channel slowly retreated to the west, with the southern part of Morris Island building up as an accretion to what are now the appellants’ lands. Upon that theory the appellants claim record title to the property in question.
The appellee’s theory is that Morris Island originated as two small islands that emerged from the river and thereby became the State’s property at some time before its deed to the appellee’s predecessor in title in 1920. Eventually the two small islands grew by accretion into what is now known as Morris Island. Alternatively, the appellee claims title by adverse possession under color of title. The latter theory was adopted by the chancellor.
We think it ¡essential to first determine whether the problem area came into being as an island or as an accretion to the mainland, because in the circumstances of this case constructive possession follows the true title. Here constructive possession is important, for it is almost undisputed that for many years large parts of Morris Island have been unenclosed woods not actually occupied by anyone. In fact, aerial photographs covering a pivotal period of about thirty years leave us with no doubt whatever that much of the tract in controversy has been unoccupied and unimproved. Indeed, a sporadic cutting of timber is one of the elements of adverse possession asserted by the appellee.
It must be remembered that even if the appellee is right in arguing that it and its predecessors have been in actual possession of a field in the northern part of the 91 acres and of a hay meadow in the southern part, the appellants have also been in actual possession of their lands east of the slough. The appellants correctly assert at page 275 of their voluminous brief that in such a situation of twofold actual possession the true owner is deemed to have constructive possession of that part of the tract not occupied by either claimant.
We considered the point in Smith v. Southern Kraft Corp., 203 Ark. 814, 159 S.W. 2d 59 (1942), where we held that constructive possession follows the true title:
For the reversal of this decree appellant insists that, inasmuch as he had color of title to all the land in litigation, with actual possession of two small parts thereof, the court should have held that he had title to the whole thereof, and his own title should have been quieted. To sustain this contention numerous cases are cited to the effect that actual possession of any part of a tract of land under a deed describing the entire tract is possession to the limits of the calls of the deed.
We reaffirm this rule; but it must be said that it is not one which may or should be applied in all cases and under all circumstances. For instance, the owner of the record title to a tract of land might have actual possession of only a portion thereof, while another having only color of title to the land, might also have actual possession of another portion.
Under the rule above stated, each would have title to the land, provided the occupant who had only color of title had had adverse possession of the portion which he occupied for as much as seven consecutive years. In the case stated, the owner of the record title would have title to the whole of the tract except only the portion which he had lost through the adverse occupancy of the other. This for the reason stated in Union Sawmill Co. v. Pagan, 175 Ark. 559, 299 S.W. 1012, that “The general rule is that constructive possession follows the title, and can only be overcome or defeated by an actual possession adverse thereto. (Citing cases).”
If it be said that the court’s statements in the Smith case were dictum, because there both claimants were not actually occupying part of the property, the answer is that the dictum nonetheless correctly stated the law as it has been announced in other states. In fact, we have found no case to the contrary.
The decided weight of the evidence indicates that Morris Island formed as an accretion to the mainland. Austin Smith, a civil engineer with long experience in river work, testified for the appellants. He reviewed in great detail the history of the river’s channel near Fort Smith, supporting his testimony with many maps, plats, and aerial photographs. He gave convincing reasons for his conclusion that the land in dispute reemerged as an accretion after the channel reached the line of the present slough. It was his belief, based up on many years of study and experience, that islands very rarely form spontaneously in the Arkansas River. An avulsion is nearly always involved, which does not affect title to the land. Goforth v. Wilson, 208 Ark. 35, 184 S.W. 2d 814 (1945); see also Ark. Stat. Ann. § 10-202 (Repl. 1956).
The appellee’s proof falls far short of rebutting the appellants’ theory of the case. The appellee’s professional engineer, James M. Rutledge, referred frequently to Morris “Island” and to the earlier “emergences” from the river, but he gave no reason whatever to lead one to believe that the lands in dispute formed as islands rather than as accretions. On the record as a whole we are firmly convinced that the appellants’ contention on this point is correct.
It follows that the appellants have had constructive possession of all their land not actually occupied adversely by the appellee or its predecessors. Hence the appellee derives no benefit from its color of title. Its claim must be confined to such parts of the 91-acre tract as are shown to have been adversely occupied for seven or more years in succession.
We are not impressed by the appellee’s repeated assertions in its brief that it and its grantors had actual possession of the entire-tract for the required seven years. In actuality, hardly any of their activities affected the tract as a whole. Timber was cut extensively in 1953 and in 1955, but after that there were only occasional insignificant cuttings of locust posts. In the fall of 1959 J. B. Harwood built a fence across the island just south of a cultivated area near the north end of the 91 acres and allowed an undisclosed number of cattle to graze in the area south of the fence. The fence, however, was maintained for only about two years — until the Corps of Engineers began revetment work along the river in 1961 — and Harwood admits that he did not keep his cattle on the property during the summer months while hay was growing.
A series of aerial photographs, taken at about two-year intervals during the critical period from 1952 to 1967, provide convincing proof that there was actually no adverse occupancy of the tract in its entirety during any seven-year period. It clearly appears from these pictures that most of the tract was woodland during the critical years.
There have, however, been patches of actual occupancy. The principal one is an area of cultivated land at the north end of the 91-acre tract, extending down from the appellee’s abutting land to the north. Even the appellants’ own proof, such as their exhibits 12f, 12g, and 12h, establishes this intrusion upon the Bal'lman-Cunmiings tract. The cause will be remanded for the taking of such further proof as may be necessary to a determination of the legal description of that part of the tract that has been adversely held.
The only other cleared area that appears consistently in the aerial photographs is the hay meadow at the southern end of Morris Island. It is not preponderantly proved, however, that the appellee and its grantors had exclusive, continuous, and hostile possession of that clearing for seven successive years.
The hay meadow grew up in natural grass, no one having planted it. M. A. Powers was the first one to harvest the hay with regularity, but he testified that he did not cut the hay in 1960, 1961, 1962, or 1963. J. B. Harwood said that he believed he hayed the land in 1962 and 1963. P. H. Hardin, who looked after the property for himself and the other four owners who sold it to Southern Enterprises, testified in general terms that haying was done through the years, but on cross-examination he admitted with candor that he could not say that he had actually seen either Powers or Plarwood on the land in 1960, 1961, 1962, or 1963. It is not contended that anyone else cut the hay in those years.
Even if we should assume that the cutting of hay-in the warmer months would alone constitute adverse possession sufficient to bring about an investiture of title, the proof fails for the years 1960 and 1961. We shonld add that for a part of that time the appellee relies for its claim of possession upon revetment work done by the Corps of Engineers under written permission given by the appellee’s five grantors. Perhaps the possession of the Corps of Engineers wonld have inured to the benefit of the appellee if it had been entitled to lay claim to the entire tract under the doctrine of color of title. But when that claim fails the effect of the Corps’s work was merely to establish actual possession of the reveted area along the bank. Title to that area, however, has been acquired by the United States in a condemnation proceeding in the federal court; so that possession is of no assistance to the appellee with respect to its claim of having possessed the hay meadow. This leaves the appellee with a valid claim only to the northern field that we have mentioned.
Reversed and remanded for further proceedings.
Holt, J., not participating.
Harris, C.J., and Byrd, J., dissent. | [
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John A. Fogleman, Justice.
Appellant, as assignee of a conditional sale contract between appellee Mosser as buyer and Bill Short Motors as seller, seeks reversal of a decree cancelling the contract for usury. We agree that the contract was not usurious, and reverse the decree of the trial court.
Mosser negotiated with a salesman of the automobile agency for the purchase of an automobile. Agreement was reached on April 22, 1967, after business hours. This agreement contemplated payment of a purchase price balance of $2,200.00 in 30 monthly installments. The purchaser signed a printed conditional sale contract form without the blanks filled in because no secretaries were then available to type the information in the blanks. He also signed a Motor Vehicle Purchase Order which showed a contract balance of $2,588.40 to be paid in 30 monthly installments of $85.28 each. This total included an item of $63.96 for credit life insurance which did not appear on this order when signed, although this amount was necessary to make the total contract balance. The chancellor’s finding that credit life insurance was not requested or authorized by Mosser is not clearly against the preponderance of the evidence. The blank form signed by Mosser contained a block entitled “Election To Include Credit Life Insurance” which was not signed by Mosser. It was contemplated at all times that the contract would be assigned to appellant. Before it was actually delivered to the bank, the automobile agency’s sales manager discovered this omission of Mosser’s signature on the credit life election. He signed the purchaser’s name to this election, and claims that the total to be paid by the purchaser and the amount of the payments indicated to him that credit life insurance premiums were to be included. When the contract was filled in, it was submitted to appellant which then refused to purchase it because it doubted Mosser’s ability to make the payments the contract provided for, i.e., $85 per month. Thereafter, Mosser persuaded one of the bank’s officials to accept the contract and it was then transferred to the bank.
Some time elapsed between the delivery of the original contract to appellant and the delivery of copies to the purchaser. "When he did call for his copies, both the copy for his own use and the copy to be filed with the Motor Vehicle Division of the Department of Revenues showed an item of $63.96 for credit life insurance added to the unpaid cash sale price balance. It also clearly showed the name of Mosser signed to the form for election to include credit life insurance. A credit life insurance certificate was delivered to Mosser at the same time.
Appellee claims that he did not examine the papers delivered to him until sometime in November 1967 when he was advised by the Motor Vehicle Division that there was some discrepancy in the serial number of the vehicle. Mosser then discovered that someone had signed his name on the election to include credit life insurance. He promptly advised an official of appellant that he had not signed this election. This officer stated that the amount of this premium would be refunded if he had not elected to take the insurance and recognized the right of the purchaser to cancel this insurance. Mosser declined this offer and instituted this action to cancel the contract for usury. Mosser made all payments coming due prior to institution of the suit. The chancellor found that the item added should be treated as interest, that this made the contract usurious and decreed its cancellation.
This case is controlled by Universal C.I.T. Credit Corp. v. Hudgens, 234 Ark. 1127, 356 S.W. 2d 658, 660. The finance charge would have been usurious if the amount of the credit life insurance premium was an item actually constituting a part of the charge for the loan or forbearance. It cannot be said that the dealer was the lender since it declined to make the sale until Mosser persuaded appellant to accept an immediate transfer. Thus, an item included by it in the total cannot be said to be a charge for its forbearance. On the other hand, there is no evidence to show that appellant, who must be considered as the actual lender in this case, received any part of the credit life premium or that it had any information whatever about the unauthorized act of the dealer’s employee in signing appellee’s name to the election of credit life insurance, or that it acted collusively in the transaction. While the act complained of may well have been fraudulent, we find no usury on the authority of the case above cited.
The bank offered to refund the amount of this premium to Mosser. He should have credit for this amount, together with its proportionate part of the total finance charge. It also appears that appellee was permitted to make certain payments on the contract to be paid as directed by the court. For this reason it is necessary that this case be remanded for action by the trial court not inconsistent with this opinion.
Reversed and remanded. | [
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George Rose Smith, Justice.
On April 24, 1967, the North Little Rock city council held a regular meeting at the city hall. At the end of the meeting the council voted to go into closed session with the mayor and city attorney to discuss a Public Service Commission proceeding to which the city was a party. All members of the public, including one of the appellees, were excluded from the closed session.
The appellees, then the editor and managing editor of The Times, a North Little Rock newspaper, brought this suit against the mayor, city attorney, and aldermen; for a judgment declaring that the closed session had been in violation of our Freedom of Information Act. Act 93 of 1967; Ark. Stat. Ann., Title 12, Ch. 28 (Supp. 1967). This appeal is from a judgment declaring that the meeting was in violation of the act and that the city council cannot meet secretly to discuss legal matters with the city attorney.
The Freedom of Information Act, dealing with public records and public meetings, was passed at the first regular session of the legislature following two decisions of this court defining to some extent a citizen’s right to examine public records. Republican Party of Ark. v. State ex rel. Hall, 240 Ark. 545, 400 S.W. 2d 660 (1966); Gaspard v. Whorton, 239 Ark; 849, 394 S.W; 2d 621 (1965). As far as the case at bar is concerned, the pertinent parts of the act are as follows:
Section 2. Declaration of Public Policy. It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall he advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials.
# * *
Section 5. Open Public Meetings. Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and School Districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.
The time and place of each regular meeting shall be furnished to anyone who requests the information.
In the event of emergency, or special, meetings the person calling sucia a meeting shall notify the representatives of the newspapers, radio stations and television stations ... at least two hours before such a meeting takes place in order that the •public shall have representatives at the aneeting.
Executive sessions will be pernaitted only for the purpose of discussing or considering employaneaat, appointment, promotion, demotion, disciplining, or' resignation of any public officer or employee.
' ■' Executive sessions must never be called for the purpose of defeating the reason or the Spirit of the Freedom of Information Act.
Section 10. [Emergency.] It is hereby found and determined by the General Assembly that the proper functioning of a democratic society is dependent upon the public being informed at all times with respect to the operations of government, and public officials shall at all times be held accountable for their public actions and conduct; . . . that many agencies are now holding executive or closed sessions . . . which is contrary to the spirit of the public business being transacted in open public meetings . . .
At the outset we reject the city’s contention that the Freedom of Information Act is a penal statute, to be strictly construed. It is true that the act (§7) provides that its willful violation is a misdemeanor, punishable by a fine or jail sentence. Such a provision, however, does not make the entire statute penal. For instance, the workmen’s compensation act makes it a misdemeanor for an employer to fail to provide compensation coverage for his workmen. Ark. Stat. Ann. § 81-1339 (Repl. 1960). We have nevertheless held, in passing upon that very duty to provide coverage, that the compensation act is to be liberally construed. Brooks v. Claywell, 215 Ark. 913, 224 S.W. 2d 37 (1949).
Whether a statute should be construed narrowly or broadly depends upon the interests with which the statute deals. Warfield v. Chotard, 202 Ark. 837,153 S.W. 2d 168 (1941). As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public. Employers Ins. Co.y of Ala. v. Johnston, 238 Ala. 26, 189 So. 58 (1939); Bankers Life & Cas. Co. v. Alexander, 242 Iowa 364, 45 N.W. 2d 258 (1950); Hipp v. Prudential Cas. & Surety Co., 60 S.D. 308, 244 N.W. 346 (1932). In the act now before us the General Assembly clearly declared the State’s public policy: “It is vital in a democratic society that public business be performed in an open and public manner.” We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.
The language of the act is so clear, so positive, that there is hardly any need for interpretation. The heart of the act, in its application to this case, lies in Section 5: “Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities . . . shall be public meetings.” On April 24, 1967, the North Little Rock city council was unquestionably the governing body of a municipality. Its closed session was unquestionably a meeting, formal or informal, special or regular. How, then, can it be said that the closed session was not a violation of the statute?
Counsel for the city base their arguments entirely on the attorney-client privilege. They insist that the statute should not be construed to apply to a meeting between the city council and the city attorney. It is predicted that the city will not be able to prepare its cases for trial without disclosing its strategy and its-weaknesses to its adversaries.
We think that, as a practical matter, counsel are unduly apprehensive about the impact of the act upon municipal litigation. The city attorney, with the assistance of the mayor, department heads, and other municipal employees, can certainly prepare a case for trial without discussing his plans in detail with the city council. By analogy, the State of Arkansas is continually engaged in litigation, but there is scant occasion for its Attorney General or its other legal counsel to confer in secret with the members of the General Assembly.
Regardless of such practical considerations, the act itself effectively refutes the appellants’ argument. The legislative mandate cannot be misunderstood: “Except as otherwise specifically [our italics] provided by law, all meetings ... of the governing’ bodies of all municipalities . . . shall be public meetings.” The key word is “specifically,” meaning “explicitly,” “definitely,” “in so many words.” The legislature itself provided a specific exception in Section 5 of the act, having to do with personnel matters. It did not see fit to provide a similar exception for meetings between the city council and the city attorney.
The attorney-client privilege, originally a common-law immunity, now rests upon a section of the Civil Code, adopted in 1869, wdiick provides that an attorney is incompetent to testify about his client’s communications without the client’s consent. Ark. Stat. Ann. § 28-601 (Repl. 1962). For us to say that the section just cited, dealing only with a testimonial disqualification, “specifically” provides that the city council may consult its attorney in secret would simply amount to striking the word “specifically” from the Freedom of Information Act.
A point not to be overlooked is that the legislature necessarily had to make a policy decision in drafting the Freedom of Information Act. On the one hand, to deny to the city council the right to meet in secret with the city attorney might in some instances work to the public disadvantage. But, on the other hand, to allow the council to go into executive session at any time, upon the pretext of consulting the city attorney about legal matters, might readily open the door to repeated and undetectable evasions of the Freedom of Information Act — also to the public disadvantage. Policy decisions such as that are peculiarly within the province of the legislative branch of the government. In this instance that branch has spoken so unequivocally that its command cannot be misunderstood. Our duty is simply to give effect to its mandate.
The trial court was right; its judgment is affirmed.
Harris, C.J. and Fogleman, J., concur.
John A. Fogleman, Justice.
In view of the language of the act requiring that meetings of the governing bodies of municipalities shall be public “except as otherwise specifically provided by law,” I agree that exceptions can only be made by statutory law. I do not think that Ark. Stat. Ann. § 28-601 (Repl. 1962) is amended or repealed by Act 93 of 1967, either expressly or by implication. There is no conflict between these acts because § 28-601 does not specifically provide for private conferences between attorney and client. That section simply affords a measure of protection to the client against disclosure of the subject matter of those conferences. Thus, there is no specific provision of law which permits the governing board of a city collectively to have the advantage of confidential communication with its attorney.
I do not agree, however, that the scope of the attorney-client privilege is as limited as might be inferred from the majority opinion.
The privilege is designed to protect from disclosure not only the communications of client to attorney, but also the advice of the attorney based thereon. The protection is not limited to matters which are the subject of pending cases. This court said in Bobo v. Bryson, 21 Ark. 387:
“ * * * This protection extends to every communication which the client makes to his legal adviser, for the purpose of professional advice or aid, upon the subject of his rights and liabilities. Nor is it necessary that any judicial proceedings in particular should have been commenced or contemplated ; it is enough if the matter in hand, like every other human transaction, may by possibility become the subject of judicial enquiry. The great object of the rule seems plainly to require that the entire professional intercourse between client and attorney, whatever it may have consisted in, should be protected by profound secrecy. See 1st Green-leaf 303.”
The statute not only protects the client from disclosure by the attorney, it also excuses the client from being compelled to disclose his confidential communications to his attorney or the advice given by the attorney. Casey v. The State, 37 Ark. 67.
Only a small fraction of a city council’s need for legal consultation and advice arises in connection with the preparation of cases for trial. Even in pending proceedings the need for confidential communications on settlement possibilities and settlement authority is critical.
I fail to see the analogy between the relationship of the Attorney Genei’al and the General Assembly and that of a city attorney and a city council. The duties of the General Assembly are legislative only. Those of a city are often as much in the executive field as the legislative. Certainly the powers of a city council are not limited to legislative functions. It has many duties which are administrative and ministerial.
The doctrine of separation of powers applied at the state level is not usually applied to municipal corporations and has never been regarded as fully appropriate in the performance of municipal functions. McQuillin, Municipal Corporation, §§ 9.20, 10.3; C.J.S. 489, Constitutional Law, § 106. It has not been the practice in Arkansas to separate these powers to any great degree. In a city such as North Little Rock, corporate authority is vested in a mayor and city council. Ark. Stat. Ann. § 19-901 (Repl. 1956). The city council, in addition to all legislative powers, possesses all corporate powers not prohibited by the General Assembly or its own ordinances. § 19-1011. Among its powers are the management and control of finances and of the property of the municipal corporation. § 19-1011. Consequently, the need of the city council for legal advice and consultation is far different than that of the General Assembly.
There is a strong implication in Morgan v. Wells, 242 Ark. 499, 415 S.W. 2d 323, that the general rule that communications made in the presence of third persons are not privileged or confidential is applicable to the attorney-client relationship. See, Barnhart, Theory of Testimonial Competency and Privilege, 4 Ark. Law Rev. 377, 402.
Thus, there is little doubt that the Freedom of Information Act has deprived each agency named therein (as a body) of free communication with, and unrestrained advice from, its attorneys, in confidence.
It is not our function to look into the wisdom of this action or the advisibility of the public purpose sought to be accomplished. Berry v. Gordon, 237 Ark. 547, 865, 376 S.W. 2d 279; Beaumont v. Faubus, 239 Ark. 801, 394 S.W. 2d 478; McCastlain v. Oklahoma Gas & Elec. Co., 243 Ark. 506, 420 S.W. 2d 893; Haynie v. City of Little Rock, 243 Ark. 86, 418 S.W. 2d 633. | [
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John A. Fogleman, Justice.
Petitioner seeks a writ of mandamus directing the Chancery Court of Faulkner County to reinstate on its docket two cases previously dismissed.
The first case (No. 10122) was filed by petitioner, individually, on September 21, 1967, against her stepdaughter, Mrs. W. N. Daniel, and The First National Bank of Conway. As the surviving spouse of R. H. Burks, she sought to recover a bank account through this action. After service was had upon Mrs. Daniel in Pulaski County and upon the bank in Faulkner County, the trial court sustained Mrs. Daniel’s motion to quash service. It then considered a motion to quash service by the bank as a demurrer, which it also sustained, and dismissed the complaint. The order of dismissal was made on February 2, and filed February 9, 1968. No appeal was taken from that order.
On February 5th, petitioner filed the second suit (No. 10203). This suit was brought as administratrix of the estate of her deceased husband (appointed September 22, 1967) against her step-daughter only. In this action she sought to recover the proceeds of the same bank account. The defendant’s motion to quash service was granted because she was served in Pulaski County, and this suit was dismissed on March 1, 1968.
This petition was filed March 14, 1968. "We deny the writ as to both cases.
The order of dismissal in both cases was a final order from which an appeal could have been taken. A final order entered after service is quashed is appeal-able. Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163. An order dismissing a complaint after a demurrer has been sustained is also appealable. Fox v. Pinson, 177 Ark. 381, 6 S.W. 2d 518.
Mandamus will not be granted where there is a remedy by appeal. Mobley v. Conway County Court, 236 Ark. 163, 365 S.W. 2d 122; Snapp v. Coffman, 145 Ark. 1, 223 S.W. 360; Cantley v. Irby, 186 Ark. 492, 54 S.W. 2d 286. Nor can it be used to correct an erroneous decision already made. Mobley v. Conway County Court, supra; Jackson v. Collins, 193 Ark. 737, 102 S.W. 2d 548; Watson v. Gattis, 188 Ark. 376, 65 S.W. 2d 911.
Tlie court’s determination on the motion to quash and on the dismissal of the action in both cases was a judicial decision. Under such circumstances, this court will not issue a writ of mandamus requiring the trial court to redocket the eases. Chavis v. Golden, 226 Ark. 381, 290 S.W. 2d 637; McBride v. Hon, 82 Ark. 483, 102 S.W. 389.
Since petitioner permitted the time for appeal to expire in Case No. 10122, she could not be entitled to a writ of mandamus in that case in any event. Chavis v. Golden, supra; Calloway v. Harley, 112 Ark. 558, 166 S.W. 546. Even though the time for appeal of Case No. 10203 had not expired when the petition herein was filed, the writ cannot be granted because it cannot be used to perform the functions of an appeal. Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988.
Petitioner contends that the trial court has erroneously declined to take jurisdiction in both cases, but, the writ can only be issued to require the court to entertain jurisdiction where the aggrieved party has no specific or adequate remedy by appeal. Smith v. Carter, 107 Ark. 21, 154 S.W. 951; Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S.W. 557; Gilbert v. Shaver, 91 Ark. 231, 120 S.W. 833.
The petition is denied. | [
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John A. Fogleman, Justice.
On rehearing, the opinions delivered in this case on October 7, 1968, are withdrawn, and the following opinion is substituted therefor:
The first question to be determined on this appeal is whether the actions of Roy Hindsley, appellee here, were sufficient to take an oral lease out of the statute of frauds. We find that they were not.
Hindsley had been a tenant on farm lands owned by appellant Mary G-. Norton for a number of years prior to January 1, 1967. On February 13, 1967, appellant filed an action in unlawful detainer againsl Hindsley, who filed a cross bond to retain possession. His answer contained allegations that on or about the first day of November 1966, he “made a binding agreement for the rental of such lands with the plaintiff [appellant] and that plaintiff accepted his rent notes in the amount of $15,000 representing the rentals to be due upon such lands for the period 1967, 1968, and 1969.” (Emphasis ours.) Appellee also alleged that proper notice of termination had not been given him, even if a new agreement had not been made.
Mrs. Norton is nearly 80 years of age. She testified that she told Hindsley and his wife when they called upon her in late October 1966, that she was going to have to get the best rent she could for 1966 and that Hindsley should go to her son, whom she had authorized to act, about renting the land. According to her, Mrs. Hindsley returned and gave her a piece of paper, saying it was “the rent note.” Mrs. Norton stated that she was in bed, did not have her glasses, and did not even look at the paper, but reminded Mrs. Hindsley that she had told Hindsley to go to her son. Mrs. Norton did not know what she had done with the paper Mrs. Hindsley handed to her. She admitted having told Hindsley he could rent the land at her price.
Mrs. Norton’s son, Earl, testified that he negotiated the agreements with Hindsley for the renting of the lands for many years and specifically for the years 1964, 1965, and 1966. He stated that after Hindsley’s visit to Mrs. Norton, he took two notes he found on his mother’s dresser and told Hindsley that he conld not have the farm for $5,000 per year but that the rent would be $7,000. He further stated that Hindsley agreed, whereupon he took a note in that amount to Hindsley, who refused to sign it, saying that he would not pay that much rent.
There was evidence indicating that appellee was given written notice by appellant’s attorney that his right to possession would terminate December 31, 1966, and that appellant was insisting upon possession at that time. This was done by letter dated November 10,1966.
Hindsley testified that on the occasion of his visit to Mrs. Norton, she told him to prepare the rent notes for 1967, 1968, and 1969, saying that her son wanted to rent the land to some of his friends. According to him, the notes were prepared by one Davidson and taken by Mrs. Hindsley for delivery to Mrs. Norton. He denied having previously dealt with Earl Norton but admitted that Earl Norton had talked to him about the farm rental. He claimed that he caused the ‘ ‘ diverted acres ’ ’ on the land to be plowed, thinking he had rented it for three years.
Mrs. Hindsley corroborated her husband’s testimony about their visit to Mrs. Norton. She testified that she took rent notes for $5,000 each for 1967, 1968. and 1969 to Mrs. Norton, who stuck them under a towel spread across her lap, saying “all right.”
Mrs. Earl Norton testified that she typed the rent notes for 1964, 1965, and 1966. Mrs. Hindsley stated that Mr. Davidson had not previously prepared rent notes for the parties.
Our statute of frauds requires that a contract for lease of lands for a term longer than one year be in writing signed by or on behalf of the party to be bound. Ark. Stat. Ann. <^38-101 (Eepl. 1962). No such writ ing was offered in evidence. Unless the acceptance of the notes signed by appellee by appellant, or appellee’s action in plowing' some of the acreage involved, took the transaction outside the application of the statute of frauds, appellee could not be entitled to judgment.
Under our decisions, it is clearly established that the mere breaking of ground is not such a valuable and permanent improvement as to take the case out of the statute of frauds. French v. Castleberry, 238 Ark. 1038, 386 S.W. 2d 482; Ashcraft v. Tucker, 136 Ark. 447, 206 S.W. 896; Garner v. Starling, 137 Ark. 464, 208 S.W. 593. Furthermore, part performance as a defense is available in equity only, and cannot take any case at law out of the statute of frauds. Therefore, it cannot be a defense in an action in unlawful detainer, at least where there was no effort to transfer the cause to an equity court. Osan Lumber Co. v. Price, 219 Ark. 709, 244 S. W. 2d 486; Henry & Bros. v. Wells, 48 Ark. 485, 3 S.W. 637; Mitchell v. Hanley, 171 Ark. 456, 284 S.W. 535.
Mrs. Norton’s mere acceptance and retention of the notes signed by Hindsley will not suffice to take tire oral contract out of the statute of frauds. Bromley v. Ada-y, 70 Ark. 351, 68 S.W. 32. Even the advance payment of rent under a parol contract for a lease for more than one year cannot extend the tenancy beyond one year. Brockway v. Thomas, 36 Ark. 518. Even if the retention of the notes could be said to have constituted ratification of a verbal contract required by statute to be in writing, the contract would not be validated for its full term, but ratification would extend only to any xjeriod of actual performance under the contract. Bald Knob Special School District v. McDonald, 171 Ark. 72, 283 S.W. 22.
The statute requires that the written memorandum be signed by the party to be charged. Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W. 2d 585. The party to be charged is the one against whom the contract is sought to he enforced in the action. Lee v. Vaughan’s Seed Store, 101 Ark. 68, 141 S.W. 496, 37 L.R.A. (n.s.) 352; Jones v. School District No. 48, 137 Ark. 414, 208 SAY. 798; Chicago Mill & Lbr. Co. v. Matthews, 163 Ark. 571, 260 SAY. 963. The notes prepared by Hindsley could not constitute the writing required, not only because they were not signed by appellant, but also because the land involved is not in any way identified therein, as required by the statute. McCorkle v. H. K. Cochran Co., 144 Ark. 269, 222 S.W. 34; Faith v. Epperson, 213 Ark. 1002, 214 SAY. 2d 223; Eotopp v. Adair, 144 Ark. 629, 223 SAY. 393; Briggs v. Fraser, 157 Ark. 518, 249 S.W. 9.
No specific mention was made of the statute of frauds until the conclusion of all the evidence. Then, appellant’s attorney requested that the jury be instructed that appellee could not have a three-year lease on the property since it would be within the statute of frauds. He contended that, giving the evidence on behalf of appellee its strongest probative force, it only indicated that Mrs. Norton had orally consented to a three-year lease, and had not executed the notes presented as evidence of the rent contract.
This request was refused by the circuit judge, who stated that Mrs. Norton’s acceptance of rent notes prepared according to her instructions would constitute a valid three-year lease. Appellant’s attorney also objected to the giving of appellee’s requested instruction No. 1 as to the words sufficient to constitute a lease for the reason that neither it, nor any other instruction, covered the statute of frauds. Objection was also made, for the same reason, to appellee’s requested instruction No. 2 in which the circuit judge told the jury that acceptance of rent notes for 1967, 1968, and 1969 pursuant to an oral agreement between the parties would constitute a valid and binding lease contract for a three-year period. Appellant also requested an instruction stating the requirements of the statute of frauds, which would not have permitted the jury to consider whether any lease was entered'into except for the year 1967. This request was refused.
It was clearly error on the part of the trial judge to give appellee’s requested instructions 1 and 2 over the objection of appellant. Neither of them would have allowed consideration of the application of the statute of frauds to the dealings between the parties. In ef feet, the trial court held that the actions of the parties took the matter out of the statute of frauds. This was error.
It is urged, however, that the statute of frauds cannot be relied on by appellant because of her failure to plead it. It is generally held that reliance upon the statute of frauds as an affirmative defense is conditioned upon assertion, of the defense in a pleading. See S. E. Kress Co. v. Moscowitz & Zucker, 105 Ark. 638,152 S.W. 298. This rule is apparently based on the theory that an oral contract raises a moral obligation, at least, so that a party against whom it is asserted has the option of either pleading the statute of frauds as a defense or waiving it. Skinner v. Fisher, 120 Ark. 91, 178 S.W 922. While this is a sound rule, there are situations ti which it cannot and should not be strictly applied.
When an oral contract is pleaded by the adverse party or admitted by the pleader, the latter must specifically plead the statute of frauds in order to rely upon it. Stooksberry v. Pigg, 172 Ark. 763, 290 S.W. 355. It has often been held, however, that the denial of the existence of a contract asserted in a complaint is sufficient to raise the issue of the statute of frauds, even though the statute is not specifically mentioned. Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W. 2d 585. The denial in an answer is taken to be as broad as the allegation in the complaint. McCorkle v. H. K. Cochran Co., 144 Ark. 269, 222 S.W. 34.
Denial of the existence of a contract requires the party asserting the contract to prove one valid under the statute of frauds. Chicago Mill & Lbr. Co. v. Matthews, 163 Ark. 571, 260 S.W. 963.
Under rules of both common law and code pleading, the assertion of a claim or defense based upon a contract within the statute of frauds which is not alleged to be in parol will be taken as against the pleader as the allegation of a written contract. Duncan v. Clements, 17 Ark. 279; McDermott v. Cable, 23 Ark. 200; Allen v. Bank of Eureka Springs, 179 Ark. 334, 15 S.W. 2d 408; Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W. 2d 585; Gale v. Harp, 64 Ark. 462, 43 S.W. 144. When issue is joined upon an allegation of a contract required by a statute to be in writing, proof of a written contract, or of a contract valid under the statute, is required. Hurlburt v. W. & W. Mfg. Co., 38 Ark. 594; Elm Springs State Bank v. Bradley, supra; Stooksberry v. Pigg, 172 Ark. 763, 290 S.W. 355.
Under our system of code pleading, much of the volume of pleadings required under the rules of common law pleading was to have been eliminated. Although it may seem too restrictive at times such as this, our code permits a reply to an answer only when a counterclaim or set-off is asserted by a defendant. Ark. Stat. Ann. § 27-1131 (Repl. 1962). The code also provides that allegation of new matter in an answer not relating to a counterclaim or set-off is deemed to be controverted by the plaintiff as if he had made a direct denial or avoidance. Ark. Stat. Ann. § 27-1151 (Repl. 1962). These statutes have been applied, for example, to answers pleading contributory negligence (when it was a complete defense), releases, and ownership of a judgment by a defendant by right of subrogation. St. Louis, Iron Mountain and Southern Railway v. Higgins, 44 Ark. 293; George v. St. Louis, Iron Mountain and Southern Railway, 34 Ark. 613; Ward v. Sturdivant, 96 Ark. 434, 132 S.W. 204. In the first two cases cited, plaintiffs have even been permitted to show their own infancy and incompetence to avoid written instruments signed by them and relied upon in answers without any suggestion of the matter shown in any pleading. This court said in the Higgins case that the cause is at issue without any reply and that the trial judges should not permit the record to be cluttered with such improper pleadings.
We are aware of two decisions in which the filing of a reply raising the statute of frauds has been mentioned. See Dunn v. Turner Hardware Company, 166 Ark. 520, 266 S.W. 954, and Cook v. Cave, 163 Ark. 407, 260 S.W. 49. In the former there was a counterclaim for special damages asserted in the answer. In the latter the pleading merely denied the existence of a contract but did not specifically assert the statute of frauds. In neither case was the necessity of the pleading to raise the issue considered, nor was the propriety of the filing of the reply questioned. No rule that a reply was required to assert the statute of frauds against a contract first asserted in an answer was stated in either opinion. The opinion in Rogers v. Moss, 216 Ark. 838, 227 S.W. 2d 630, did state that a plaintiff could not rely on the statute of frauds where it was not pleaded. In that opinion, however, the court had already stated that any rights under the contract in question had been surrendered long before the action was brought. Thus, the same result would have been reached without ever considering the application of the statute. No authority requiring a plaintiff to raise the statute by a reply was cited in the opinion. This decision, in this respect, stands alone. It is not in harmony with our statutes governing pleadings or with other decisions of this court, and we decline to follow it.
When appellee alleged a binding contract in his answer, the existence of this contract became an issue in the case, and it was incumbent upon him to produce evidence to prove the existence of such a contract, i.e., one in writing or which was taken out of the application of the statute of frauds. This, he failed to do.
Appellant also complains of the failure of the trial court to instruct the jury on the right of appellant to recover double damages provided for by Ark. Stat. Ann. § 50-509 (1947), as requested. We find that this also was error. A jury might have found that the penal statute did not apply in this case if it found that there was a valid oral contract for the year 1967 as permitted under appellant’s requested instruction No. 2 [See Ark. Stat. Ann. § 38-104 (Eepl. 1962); Brockway v. Thomas, 36 Ark. 518] or if it found that appellee did not hold over willfully but under a belief in good faith that he had a right to do so (See Johnson v. Taylor, 220 Ark. 46, 246 S.W. 2d 121). The evidence was sufficient, however, to make a question for the jury’s determination on this issue.
The judgment is reversed and the cause remanded for a new trial.
Holt, J., not participating.
The Chief Justice dissents. | [
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PER CURIAM.
IiA jury found appellant Stacy Tubbs, who is also sometimes known as Stacey Tubbs, guilty of possession of a controlled substance (cocaine) with intent to deliver and sentenced him as a habitual offender to life imprisonment. This court affirmed the judgment. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). Appellant filed in the trial court a pro se petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37.1, that was denied. We granted appellant’s motion for belated appeal as to the order. Tubbs v. State, CR 08-1284, 2009 WL 277635 (Ark. Feb. 5, 2009) (unpublished per curiam). Appellant has now filed a pro se motion in which he seeks access to the record and an extension of time in which to file his brief.
Because it is clear that appellant cannot prevail, we dismiss the appeal and the motion is moot. An appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam). Here, appellant did not allege a sufficient basis in his petition for the trial court to grant relief.
In his petition, appellant asserted that trial counsel was ineffective for failing to move to suppress items seized during a search on the basis that the traffic stop from which the search resulted was pre-textual. The evidence at trial was that a police officer conducted a traffic stop on appellant after observing his vehicle cross the center line. While that officer was conducting a field sobriety test, another officer who had responded to the scene conducted a canine sweep of the vehicle. The dog alerted on the vehicle and the subsequent search produced numerous rocks of crack cocaine and other items. Appellant alleged that counsel would have been able to show that the stop was pre-textual because he was already under investigation concerning the sale of drugs and the police were, as a result, aware of the vehicle that appellant drove. The trial court found that an objection to admission of the evidence on that basis would not have been successful.
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. Davis v. State, 366 Ark. 401, 235 S.W.3d 902 (2006). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has labeen committed. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per cu-riam). There was no clear error in this case.
Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). Appellant must have alleged in the petition that counsel should have presented meritorious objections, because counsel is not ineffective for failing to make an argument that is meritless. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). Counsel is presumed effective and allegations without factual substantiation are insufficient to overcome that presumption. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam).
Trial counsel filed a motion to suppress. The trial court’s findings in the order denying postconviction relief indicate that counsel did not raise the pretextual stop argument that is the basis for appellant’s claim of ineffective assistance. Whether or not trial counsel raised the issue, the failure to do so did not constitute ineffective assistance because an objection on that basis would have been without merit. Appellant challenged the motivation of the police officer in making the stop and did not otherwise challenge the basis for the stop.
A pretextual stop does not violate federal constitutional law. State v. Harris, 372 Ark. 492, 277 S.W.3d 568 (2008) (citing State v. Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003)); see also Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009); Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). This court has never held a valid traffic stop to be unconstitutional because of a police officer’s ulterior motives. Harris, 372 Ark. at 499, 277 S.W.3d at 575. Our common-law jurisprudence does not support invalidation of a search because a valid traffic stop was made by a police officer who suspected other criminal activity. Id.
Appellant’s petition did not state facts to support a valid claim for postconviction relief. The trial court did not err in denying postconviction relief, and appellant cannot prevail on appeal. Accordingly, we dismiss the appeal and the motion is moot.
Appeal dismissed; motion moot.
. One page appears to be missing from the petition included in the record, and it is not clear whether that page was included in the petition filed or not. From the remainder of the petition and the ruling in the order denying postconviction relief, it is clear, however, that this is the sole question at issue.
. Because it is a part of the public record already filed with the appellate court in the earlier appeal, the trial record is included as a part of the record before us without need to supplement the record. See Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997) (per curiam). | [
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ROBERT L. BROWN, Justice.
I, Marlene Seratt, Mark Seratt, Aurora Cortez, and Dan McMillan (respondents) were all employed by Pharmerica, Inc., a pharmaceutical distribution business that leased property at 614 N. Second Street in Rogers from the Patsy Simmons Limited Partnership. On or about June 8, 2005, it was discovered that the water heater unit was not installed properly, causing inadequate ventilation and leading to the accumulation of toxic levels of carbon monoxide inside the premises.
Respondents filed a complaint against Patsy Simmons Limited Partnership; Simmons Builders, Inc.; Arkansas Western Gas Company; John Doe Water Heater Installer; and John Doe Water Heater Maintenance Company, and alleged that they were negligent in failing to |2provide and install a properly ventilated water heater iii the property located at 614 N. Second Street, thus exposing the respondents to toxic levels of carbon monoxide.
On June 24, 2008, a summons, which had been issued on June 2, 2008, was served on the Patsy Simmons Limited Partnership (Simmons) through its registered agent, Patsy Simmons, whose residence was located in Rogers. The summons incorrectly stated that Simmons had thirty days, rather than twenty days, to answer this complaint. Simmons filed an answer on July 11, 2008, and objected to personal jurisdiction and argued that the complaint should be dismissed. It raised the following defenses in its answer: (1) insufficiency of process, (2) insufficiency of service of process or proper return of process, (3) insufficiency and correctness of the return of the service of process, and (4) failure to comply with Rule 4 of the Arkansas Rules of Civil Procedure in the manner of service, the form of service, and the return of service within 120 days after the complaint was filed. Simmons filed an amended answer on November 14, 2008, and again objected to personal jurisdiction and raised these same defenses. An amended or corrected summons was never served on Simmons.
On September 11, 2009, Simmons moved to dismiss or, in the alternative, moved for summary judgment. The motion to dismiss specifically read that the summons issued to Simmons was defective in that it incorrectly stated the time in which it had to answer the complaint.
|sThe circuit court sent a letter dated November 30, 2009, to all parties which concluded that it was the opinion of the court that this matter should not be dismissed, nor should summary judgment be granted. The court entered an order on December 21, 2009, denying Simmons’s motion to dismiss, or, in the alternative, its motion for summary judgment. On January 4, 2010, Simmons filed a petition for a writ of prohibition with this court.
Simmons contends in its prohibition petition that the circuit court lacked personal jurisdiction due to the defective summons and, therefore, the circuit court should have granted Simmons’s motion to dismiss. It requests that this court issue a writ of prohibition to prohibit the Benton County Circuit Court from proceeding with this case because it lacks jurisdiction to do so. It urges this court to dismiss the complaint with prejudice because the statute of limitations has now run on respondents’ negligence claim.
Simmons also contends that this court should find the savings statute included at Arkansas Code Annotated section 16-56-126, which would allow the respondents to refile their negligence claim -within one year, to be unconstitutional.
I. Jurisdiction
It is undisputed that the sole defect in the summons was the statement that Simmons had thirty days instead of twenty days to answer the complaint. Respondents do not deny that Simmons is a domestic limited partnership with the address of its registered agent listed in Rogers. Arkansas Rule of Civil Procedure 4(b) mandates the form of the summons:
14(b) Form. The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiffs attorney, if any, otherwise, the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
Ark. R. Civ. P. 4(b) (2008). According to Arkansas Rule of Civil Procedure 12(a)(1), “A defendant shall file his or her answer within 20 days after the service of summons and complaint upon him or her, except that: (A) a defendant not residing in this state shall file an answer within 30 days after service.” Ark. R. Civ. P. 12(a)(1) (2008). Hence, it is clear that the summons issued to Simmons was defective in that it incorrectly provided that the petitioner, a domestic limited partnership, had thirty days to answer the complaint rather than twenty days.
The question before this court is whether this defect in the summons equated to a lack of jurisdiction in the circuit court. The law in Arkansas is well settled that service of valid process is necessary to give a court jurisdiction over a defendant. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 709, 120 S.W.3d 525, 530 (2003) (citing Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001)). It is equally settled that service requirements set out by rules, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Id.; Carruth v. Design Interiors, Inc., 324 Ark. 373, 374-75, 921 S.W.2d 944, 945 (1996). Specifically, this court has consistently required that the technical requirements of a summons as set out in Arkansas Rule of Civil Procedure 4(b) | sbe strictly construed and compliance with those requirements be exact. Smith, 353 Ark. at 709, 120 S.W.3d at 530 (citing Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996)). This court has recently said that this “bright line standard of strict compliance permits certainty in the law; whereas, a substantial compliance standard would lead to an ad hoc analysis in each case in order to determine whether the due process requirements of the Arkansas and U.S. Constitutions have been met.” Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 4, 306 S.W.3d 428, 430.
Simmons relies heavily on this court’s decision in Trusclair, while the respondents seek to distinguish Trusclair from the instant case. In Trusclair, the appeal arose from a dismissal with prejudice because the original complaint had been voluntarily dismissed without prejudice and then refiled, which resulted in the second dismissal. The appellee in that case was a foreign corporation with its principal-place of business in Mississippi and an agent designated for service in Arkansas. The appellee was served by certified mail. However, the summons contained an error by providing that the appellee had twenty days, rather than the correct thirty days, from the date of ser vice to answer the complaint. After the appellee moved to dismiss based on lack of jurisdiction, the circuit court granted the dismissal motion and concluded that it lacked the jurisdiction to amend the defective summons because the 120-day period for service of summons had expired without an extension. This court held, after recognizing our longstanding case law that statutory service requirements must be strictly |ficonstrued and compliance must be exact, that the circuit court properly dismissed the complaint based on the deficiency of the summons under Rule 4(b).
Respondents claim that Trusclair is inapplicable to the case at bar for the following reasons: (1) Trusclair involved an out-of-state defendant while this case involves an in-state defendant; (2) the defendant in Trusclair was provided less days to answer than it was permitted under Rule 12 (twenty days instead of thirty), while the petitioner in the instant ease was given more time to answer (thirty days instead of twenty); and (3) the plaintiff in Trus-clair had previously nonsuited and, therefore, the complaint could not be dismissed without prejudice a second time, while in the instant case the respondents had not previously nonsuited.
Respondents are correct that these are the factual distinctions between the instant case and the Trusclair case. These factual differences, however, do not change the law relied upon in Trusclair and several other prior cases that service requirements, specifically Arkansas Rule of Civil Procedure 4, must be strictly construed and compliance with that rule’s requirements must be exact. This case and the Trusclair case involve essentially the same defect in the summons — the time period in which to answer the complaint was incorrect — regardless of whether the defendant was an in-state or out-of-state defendant. Because this court has long adhered to the strict-compliance standard for service requirements such as those laid out in Rule 4, we hold that the summons was deficient under Rule 4(b) and that the circuit court lacked jurisdiction over Simmons.
17Respondents also argue that the circuit court has discretion under both Rule 4(h) and Rule 6(b) of the Arkansas Rules of Civil Procedure to amend the summons. Regardless of whether the circuit court has discretion to amend the summons under either of these rules, such an amendment must be made within the 120-day time period prescribed by Rule 4(i). See Trusclair, 2009 Ark. 208, at 5, 306 S.W.3d at 431 (finding that even though the judge has discretion to amend a summons under Rule 4(h), valid service of process must still be accomplished within 120 days after the filing of the complaint, unless a motion to extend is filed before the expiration of this deadline); see also Ark. R. Civ. P. 6(b) (2008) (allowing the court, in its discretion, to enlarge the time period allowed for an act to be done, as long as the request is made before the expiration of the period originally prescribed, but specifically prohibiting the court from extending the time period for service of summons under Rule 4(i)). Neither an amended nor a corrected summons was ever served on the petitioner, let alone within the 120 days required by Arkansas Rule of Civil Procedure 4(i). We find that this argument lacks merit.
II. Writ of Prohibition
This court has repeatedly held that a writ of prohibition is extraordinary relief that is appropriate only when the circuit court is wholly without jurisdiction. See Hobbs v. Reynolds, 375 Ark. 313, 315, 289 S.W.3d 917, 919 (2008) (per curiam) (citing Int’l Paper Co. v. Clark Cnty. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008)); Allen v. Cir. Ct. of Pulaski Cnty., 2009 Ark. 167, at 9, 303 S.W.3d 70, 76. Our standard for issuing a writ of prohibition is clear:
IsThe writ is appropriate only when there is no other remedy, such as an appeal, available. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. This court confines its review to the pleadings in the case. Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Additionally, a writ of prohibition is not the appropriate remedy for the denial of a motion to dismiss.
Conner v. Simes, 355 Ark. 422, 425-26, 139 S.W.3d 476, 478 (2003) (internal citations omitted). Further, writs of prohibition are only to be used with extreme caution and are intended to be narrow in scope and operation. Hobbs, 375 Ark. at 315, 289 S.W.3d at 919-20. This remedy is only to be used in cases of extreme necessity. Id. at 315, 289 S.W.3d at 920. However, a writ of prohibition will not be issued for something that has already been done. Allen, 2009.Ark. 167, at 10-11, 303 S.W.3d at 76. Pertinent to the instant case, this court has recognized that lack of service of process, and, thus, lack of jurisdiction in the circuit court, can constitute grounds for prohibition. See Green v. Mills, 339 Ark. 200, 203-04, 4 S.W.3d 493, 494-95 (1999).
On occasion, this court has treated a petition for a writ of prohibition as a petition for certiorari. See, e.g., Simes, 355 Ark. at 428, 139 S.W.3d at 479. Although a writ of prohibition “cannot be invoked to correct an order already entered, [ ] where the lower court’s order has been entered without or in excess of jurisdiction, we will carve through the technicalities and treat the application for a writ of prohibition as one for certiorari.” Cato v. Craighead Cnty. Cir. Ct., 2009 Ark. 334, at 6, 322 S.W.3d 484, 488. This court has said regarding certiorari:
| ^Certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy. Certiorari is available in the exercise of this court’s superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. However, certiorari may not be used to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority. Certiorari is appropriate where a party claims that a lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy.
Allen, 2009 Ark. 167, at 10-11, 303 S.W.3d at 76 (quoting Evans v. Blankenship, 374 Ark. 104, 108, 286 S.W.3d 137, 141 (2008)).
Simmons claims that a writ of prohibition is appropriate under the facts of this case because the circuit court was wholly without jurisdiction to hear the case, but respondents point out that a writ of prohibition is not appropriate because the circuit court has already acted on this matter by denying Simmons’s motion to dismiss for lack of jurisdiction. Respondents are correct that the circuit court has already acted on this matter; therefore, relief in the form of a writ of prohibition does not lie. Nevertheless, for the reasons set out above and in our Trusclair decision, the circuit court was without jurisdiction to hear the case due to the failure to serve valid process, and the issuance of a writ of certiorari is appropriate.
III. Dismissal with Prejudice
Simmons maintains that if this court issues an emergency writ to the circuit court, the respondents’ complaint should be dismissed with prejudice because the respondents’ claim is barred by the statute of limitations for negligence and because the savings statute found at Arkansas Code Annotated section 16-56-126 is unconstitutional. The respondents answer 110that any dismissal should be without prejudice and cite this court to Rettig v. Ballard, 2009 Ark. 629, 362 S.W.3d 260.
We decline to address those issues because they are premature. At this juncture, it is unknown whether respondents will sue again under the savings statute and how the circuit court will rule, if the constitutionality of that statute is challenged.
Writ of certiorari issued. | [
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DONALD L. CORBIN, Justice.
liThis case is before us on a petition for review from a 5-4 decision of the Arkansas Court of Appeals, reversing the Perry County Circuit Court’s order granting Appellee/Cross-Appellant Burton Lee a new trial after a jury returned a verdict in favor of Appellant/Cross-Appellee, W.E. Pender & Sons, Inc., d/b/a Acklin Drilling. W.E. Pender & Sons, Inc. v. Lee, 2009 Ark. App. 283, 308 S.W.3d 624. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886. On appeal, Pender argues that the circuit court abused its discretion in granting Lee a new trial. Lee cross-appeals the order of the circuit court excluding certain deposition testimony at trial. We affirm on direct appeal and affirm on cross-appeal.
(Lee hired Pender to drill a well on a portion of Lee’s property located in Bige-low. As part of the process, Pender employees placed fiberglass mats, known as Mud Traks, around the drilling site. The mats, which were used to provide traction for the heavy trucks used in the drilling process, resemble sheets of plywood, measuring four feet by eight feet, and weighing approximately 110 pounds. The mats were needed because the ground was saturated and muddy.
After the well was completed, Jonathan McGinty, a Pender employee, began to back up a pipe truck, causing one of the fiberglass mats to fly out from under the truck’s rear tire and strike Lee, who was standing nearby. As a result, Lee sustained injuries to his leg.
Lee filed a negligence action against Pender, alleging that his injuries were a direct and proximate result of Pender’s failure to exercise ordinary care in the drilling operation and setup. The matter proceeded to a jury trial, which was held on August 28-29, 2007. At trial, Lee testified that Pender employees placed Mud Traks behind each rear wheel of the pipe truck, extending past the drilling site. Lee stated that after the well was built there was some slag around the wellhead that he removed with his tractor. Afterward, according to Lee, he pulled his tractor over to the side, while McGinty got in and started the truck. Lee stated that he heard a sound like an engine racing up and then all of a sudden one of the mats flew out and hit him.
McGinty testified that the pipe truck was driven in and placed a specified distance from the drilling site, where it sat all day. McGinty stated that when he later began to move the Rpipe truck, he cranked the' engine, waited two or three minutes for air pressure to build up for the brakes, and tried to back up but the truck would not move. According to McGinty, he gently let out the clutch until he felt the transmission catch and then gently laid off the brake while holding steady on the accelerator. He further denied ever gunning the motor or hearing the engine roar. McGinty reiterated that the pipe truck did not move that day. He stated that he did not see Lee get hit but did see Mr. Acklin cringe and run toward the side where Lee was standing. McGinty also stated that he had never seen a mat spin out, but had seen one slowly slip out.
Travis Acklin testified that even though he sold his drilling company to Pender in 2002, he stayed on and continued working for Pender. Acklin stated that in his seven years of using the Mud Traks there had never been an accident where someone was hurt while using the mats. Acklin stated that he did not recall anyone moving the pipe truck but after looking at some of the photographs and seeing the well underneath the pipe truck, he believed that the truck was moved approximately five feet prior to the time when McGinty moved it and the mat slipped out. According to Acklin, as McGinty engaged the clutch, the wheels of the truck spun out for just a second, causing the mat to fly out and hit Lee. Acklin admitted that his trial testimony regarding whether the truck was moved or not might have been different from testimony he gave in a prior deposition.
At the conclusion of the trial, the jury returned a verdict in favor of Pender. Thereafter, Lee filed a motion for new trial, arguing that there was newly discovered evidence |4material to the issues of liability and causation that he discovered after the jury rendered its verdict that could not, with reasonable diligence, have been discovered prior to trial. Specifically, Lee argued that Pender’s defense throughout the trial had been that its employees exercised due care and the event was nothing more than a freak accident and that evidence newly discovered by him related to issues of causation and liability and warranted a new trial. The evidence that Lee asserted was newly discovered was a statement made by McGinty to Lee after trial that he had not been truthful in his prior testimony and that he had “gunned” the engine. Attached to the motion for new trial was an affidavit by Lee that, among other things, recounted his conversation with McGinty and a letter that McGinty had delivered to Lee in a sealed envelope. That letter stated in relevant part:
After seeing the pictures in court on the 28-29 of August and trying to remember what happened the day of the accident. My testimony on the dates above were not completely true. I stated that the pipe truck was never moved after the well was completed. That was not true. At the beginning of the trial I was told the pipe truck was never moved. I couldn’t remember so I assumed it wasn’t. The accident happened a little over four years ago. I gave my deposition nineteen months ago. In order for me to remember everything I said in my deposition or events that happened on the day of accident, I would’ve needed copies of the deposition and copies of the photographs. I had neither! In my opinion this is asking a lot from one person.
A hearing on the motion for new trial was held on October 10, 2007. Lee testified that after the trial McGinty sought him out and admitted to Lee that his trial testimony had not been truthful. According to Lee, McGinty told him that he had accelerated the engine and that was what caused the mat to spin out. Lee stated that McGinty offered to do anything he could to help and that he gave Lee a written statement.
^McGinty also testified and disputed Lee’s testimony. He stated that he did seek out Lee and apologized to him. According to McGinty, however, he never stated that he gunned the truck. McGinty testified that he told Lee the part of his testimony about the truck not being moved was inaccurate. McGinty further said the letter he gave Lee stated that, at the beginning of trial, he was told the pipe truck had never been moved, but McGinty couldn’t remember where he learned that information. McGinty admitted that he had to accelerate the truck to get it to move but again denied that he gunned the engine. Finally, McGinty stated that if a new trial was granted, his testimony would be that the truck was moved prior to the accident, specifically that it had been moved back six or eight feet.
At the conclusion of the hearing, the circuit court issued an oral ruling granting Lee’s motion for a new trial. A written order granting a new trial was entered on October 15, 2007. This appeal and cross-appeal followed.
Rule 59 of the Arkansas Rules of Civil Procedure governs motions for a new trial. The Rule provides in pertinent part:
A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: ... (7) newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
Ark. R. Civ. P. 59(a)(7) (2009). In reviewing the circuit court’s granting of a motion for new trial, the test is whether the court abused its discretion. Carlew v. Wright, 356 Ark. 208, 148 S.W.3d 237 (2004). We have explained that this standard requires a showing of “clear” abuse, |fior “manifest” abuse by acting improvidently or thoughtlessly -without due consideration. Id. Specifically, this court has stated that
[a]n abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Discretion means that the rules are not inflexible, that there is some leeway in the exercise of sound judgment.
Valley v. Phillips County Election Comm’n, 357 Ark. 494, 498, 183 S.W.3d 557, 560 (2004) (citations omitted). Finally, we have noted that a showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Carlew, 356 Ark. 208, 148 S.W.3d 237.
On appeal, Pender argues that the circuit court abused its discretion in granting a new trial on the basis of newly discovered evidence. Specifically, Pender argues that the evidence submitted by Lee did not qualify as newly discovered evidence and, at best, could only be considered impeachment evidence, which does not warrant the grant of a new trial. In addition, Pender asserts that even if the evidence qualifies as newly discovered evidence, such evidence would not have changed the result of the trial, as the ultimate issue in the case was whether the accident was foreseeable and there was ample evidence that this was nothing 17more than a freak accident. Lee responds that the circuit court did not abuse its discretion in granting the new trial.
A new trial based on newly discovered evidence is not a favored remedy, and the burden lies with the movant to show that the evidence could not with reasonable diligence have been discovered and produced at trial. Piercy v. Walart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993). The movant also bears the burden of showing that the new evidence is not merely impeaching or cumulative, and that it would probably have changed the result of the trial. Id. This court has defined newly discovered evidence to authorize a new trial as evidence that is relevant and material to the issue involved in the original case. Forsgren v. Massey, 185 Ark. 90, 46 S.W.2d 20 (1932).
The fact that new information has been discovered that might merely impeach or otherwise test the credibility of a witness is not sufficient reason to warrant a new trial. In Lee v. Lee, 330 Ark. 310, 954 S.W.2d 231 (1997), this court affirmed the denial of the appellant’s motion for a new trial where the evidence claimed to be newly discovered was merely impeaching evidence. Likewise, in Piercy, 311 Ark. 424, 429, 844 S.W.2d 337, 339, this court affirmed a circuit court’s denial of a motion for new trial where the appellant admitted that he wished to use newly discovered evidence to “totally impeach Wal-Mart’s manager.” However, in Carr v. Woods, 294 Ark. 13, 740 S.W.2d 145 (1987), this court rejected the appellant’s arguments as to why the circuit court abused its discretion in granting a new trial. In doing so, this court stated that because of the posture of the case, .our review of the record, | ¿while independent, was influenced by the action of the circuit court because it is the court’s exercise of discretion that we were required to review.
Remaining mindful of the aforementioned principles, we turn to the issue in this case. In discussing its reasoning for granting the new trial, the circuit court stated
[fit’s a close call on this particular one. I just think that the interests of justice are best served by utilizing the line of cases that say, I’m going to use my discretion, and we’re just going to try it all over again.
And Mr. McGinty can say everything he believed happened, Mr. Lee can say what he says; everybody’s got everybody’s prior testimony for impeachment purposes; and then the jury can just make a decision.
... Mr. McGinty now has an independent recollection that is significantly different, and I think the trier of fact needs to decide whether they think that makes a difference or not.
The circuit court reached its decision only after reviewing the applicable law and considering the testimony at the hearing. The circuit court recognized that it was a close call but determined that McGinty’s independent recollection constituted new evidence, not just merely impeachment evidence. We cannot say that, in so doing, the circuit court acted improvidently or without due regard. In other words, Pen-der has failed to demonstrate that the circuit court abused its discretion, and its argument on this point thus fails.
On cross-appeal, Lee argues that the circuit court abused its discretion in excluding McGinty’s deposition testimony that the accident was “our fault” on the basis that such testimony invaded the province of the fact-finder. According to Lee, this testimony was | ¡¡substantial evidence of Pender’s liability. Pender argues that the court did not abuse its discretion, as admissions of fault are typically irrelevant. There is no merit to Lee’s argument on cross-appeal.
We begin by noting that our standard of review requires that the circuit court be given broad discretion in eviden-tiary rulings, and that this court will not reverse a circuit court’s ruling on the admissibility of evidence absent an abuse of that discretion. Willis v. Crumbly, 371 Ark. 517, 268 S.W.3d 288 (2007).
Rule 701 relates to opinion testimony by lay witnesses and reads as follows:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
Ark. R. Evid. 701 (2009). Testimony in the form of an opinion or inference that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Ark. R. Evid. 704 (2009). This court has allowed opinion testimony, both lay and expert, that embraces the ultimate issue to be decided, as long as that opinion testimony does not mandate a legal conclusion. See Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995); Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). See also Rosenow v. Alltel Corp., 2010 Ark. 26, 358 S.W.3d 879.
The following is the challenged excerpt from McGinty’s deposition:
lioQ: And has Mr. Lee ever said to you whether this was or was not anyone’s fault?
A. Well, it was our fault.
Q. Okay. Did he [Mr. Lee] ever say that to you?
A. I can’t remember. But I think he knew.
We simply cannot say that the circuit court abused its discretion in determining that this portion of Mr. McGinty’s deposition declaring fault was inadmissible. This declaration of fault went beyond embracing the underlying issue and mandated a legal conclusion, thus, invading the province of the fact-finder. Accordingly, we affirm on cross-appeal.
Affirmed on direct appeal; affirmed on cross-appeal. Court of appeals reversed on direct appeal; affirmed on cross-appeal.
. Pender & Sons purchased Acklin Drilling in 2002.
. In advancing its arguments on appeal, Pen-der repeatedly notes that the circuit court granted the new trial without making any specific findings. The lack of any specific findings in the circuit court’s order is irrelevant, as this court has recognized that the Rules of Civil Procedure contain no such requirement. See Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). Moreover, Pen-der did not request the circuit court to make specific findings following entry of the order granting a new trial. | [
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JIM GUNTER, Justice.
liAppellant appeals his convictions for possession of a controlled substance, possession of drug paraphernalia, and carrying a weapon. On appeal, he asserts that the circuit court erred in (1) denying his motion to dismiss on the charge of carrying a weapon, and (2) denying his motion to suppress all evidence resulting from the search of his vehicle. Because we granted the State’s petition for review of this case, this court has jurisdiction pursuant to Ark. Sup.Ct. R. l-2(e). We affirm.
In a felony information filed April 1, 2008, appellant was charged with two counts of possession of a controlled substance, one count of possession of drug paraphernalia, and one count of carrying a weapon. On August 7, 2008, appellant filed a motion to suppress, arguing that there was no probable cause for the stop of his vehicle, so all evidence, both physical and testimonial, that resulted from the subsequent search should be suppressed. A suppression hearing and bench trial were held on October 7, 2008.
fcOfficer Ryan Baker of the Sherwood Police Department testified that on January 25, 2008, he was on duty and had been assigned to a robbery detail. Twelve armed robberies had occurred in the Sherwood area over the previous two weeks, and Baker was part of a detail that had been assigned to patrol businesses in the area as a deterrent. At approximately 6:12 p.m. on January 25, Baker was in the Kohl’s parking lot, where he came into contact with appellant. Appellant’s truck, a white 1994 F-250 pickup, was backed into a parking space in a deserted area of the parking lot west of the store’s entrance, away from the front doors. The truck was facing east, toward the Kohl’s building, and behind the truck was a hill. Baker parked his patrol car directly in front of appellant’s truck, facing northwest. Baker did not see anyone in the truck at first, but after pulling up and turning his spotlight on the truck, Baker observed appellant sitting in the driver’s seat and reaching down out of Baker’s line of vision. Baker approached the passenger side door with his gun drawn at his side and ordered appellant to show his hands several times. After he approached, he saw in plain view a small club laying in the front seat floorboard, and as he waited for backup, he also observed a baseball bat behind the seat. According to Baker, once backup arrived, he walked around to the driver’s side and had appellant step out of the truck. Baker asked appellant why he had a baseball bat, and appellant stated that he traveled through Rose City and “you never know when you may need one.” After appellant stepped out of the truck, Baker observed a straw with a band-aid wrapped around it laying on the floorboard, and when cheeking the VIN number, also observed a razor blade on the floorboard with a white, powdery substance on it. At that point, |sBaker placed appellant under arrest and began searching the car. He located a small plastic bag containing a white, powdery substance on the floorboard. Baker identified the items he removed from the car, including a small-handled wooden club, which was a landscaping tool, and a small aluminum youth baseball bat. Baker also testified that after appellant was taken to the police department and searched, several pills later identified as hydrocodone were found in his pocket.
On cross-examination, Baker explained that the police had several leads about the person and vehicle involved in the robberies, but he did not recall if any of the leads involved a white Ford pickup. He stated that he investigated this particular track because he had reason to believe it was involved in these robberies. The Kohl’s store was open, but the truck was parked around by the loading docks, away from the other vehicles, and part of what he looked for on patrol was someone possibly casing a business. Baker could not see into the car at first, but when he turned on his spotlight, appellant looked up and saw Baker, and then began to reach down. Baker stated that, based on his training and experience as a law-enforcement officer, and the way appellant was parked indicating some type of criminal activity taking place, he suspected appellant of robbery.
Officer Chris Madison testified that he was also on duty the night of January 25, 2008, and that he responded to Baker’s call for backup. Madison recalled that when he arrived at the scene, he parked his vehicle facing the driver’s side door of appellant’s truck. He did not specifically recall whether Baker’s vehicle was facing north or south, and he did not believe |4that Baker’s vehicle had “tee-boned” appellant’s truck and blocked it in. He testified that when he arrived, Baker had appellant out of the truck, and they were both standing near the driver’s side door, which was open. Madison stood by appellant and talked to him while Baker looked in the truck. Soon after, Baker placed appellant in handcuffs, and Madison transported appellant to the Sherwood Police Department in his vehicle. Madison testified that while emptying appellant’s pockets he found the hydrocodone pills in a plastic baggie, and he advised Baker that he had found them. Madison hypothesized that, because the suspect or suspects in the robberies were disappearing quickly afterward, he thought there had to be a secondary vehicle waiting as a get-away car or that the suspect(s) lived nearby.
After the police officers’ testimony, the court heard arguments from counsel regarding the motion to suppress. The State asserted that under Ark. R.Crim. P. 3.1, an officer can stop and detain 'any person who he or she reasonably suspects is committing or is about to commit a felony, and in this case, Officer Baker had a reasonable suspicion that justified approaching appellant and detaining him. The defense, on the other hand, asserted that the approach and detention were unjustified under Rule 3.1 and Rule 2.2, which gives officers the authority to request cooperation in the investigation or prevention of crime.
Regarding Rule 3.1, the defense argued that appellant’s demeanor at the time was not indicative that he was committing any type of felony; instead, he was sitting in the parking lot of a department store during normal business hours in a marked parking spot, and there is no requirement that one pull into a parking spot instead of back into a parking spot. So, just 15seeing appellant sitting in his truck did not, it was argued, give Officer Baker the right to believe that a felony was being committed or about to be committed.
Regarding Rule 2.2, the defense argued that the justification for any investigatory stop depends upon the totality of the circumstances and whether the police have specific, particularized, articulable reasons indicating that the person is involved with criminal activity. The defense also argued that a Rule 2.2 encounter is only permissible if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime. In this case, the defense argued, the police were investigating a series of crimes in general, and the officer had no reason to identify appellant or appellant’s vehicle as being involved in the robberies. In sum, the defense urged that the officer had no reasonable suspicion to justify approaching appellant’s vehicle.
The defense also addressed the charge of carrying a weapon and argued that, under Ark. Code Ann. § 5-73-120 (Repl. 2005), a person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on his person, in his vehicle, or otherwise readily available for use. Under the statute, a club is defined as “any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking.” Ark.Code Ann. § 5-T3 — 120(b)(1). The defense argued that neither the landscaping |fitooI nor the aluminum bat met that definition. Therefore, the defense argued, “we feel that the motion for suppression of the weapons should be granted as well as ... the motion requesting that Officer Baker’s approach on the vehicle is unjustified.” The defense also mentioned Ark.Code Ann. § 16-81-203 (Repl.2005), which lists factors to be considered in determining if an officer has grounds to reasonably suspect, and argues that under a totality-of-circumstances test, these factors were not sufficiently met. The court announced that it was denying the motion to suppress, asserting its belief that this was a “textbook stop.” The court stated that there was “a reasonable suspicion to make that stop, and a reasonable suspicion turned into probable cause as a result of seeing the club.”
The State then continued presenting its case by offering the testimony of Lize Wilcox, a forensic chemist with the Arkansas Crime Lab. Wilcox testified that cocaine residue was found on the razor blade; methamphetamine cocaine and dimethyl sulfone were found on the straw, cocaine hydrochloride was found in the plastic baggie from the floorboard; and the pills found in appellant’s pocket were fifteen tablets of hydrocodone and acetaminophen.
The State then rested its case, and the defense moved for a dismissal of count four, the charge of carrying a weapon. The defense argued that there was no evidence that appellant had intended to use either the baseball bat or the landscaping tool as a weapon or that he did |7use either item as a weapon. The court denied the motion, and the defense rested and renewed the motion, which was denied. The court found appellant guilty on all four counts, and at a later sentencing hearing, sentenced appellant to five years’ probation. Appellant was also ordered to pay a $300 fine, a drug-task-force fee, to work or go to school, to submit to drug screens, and to submit a DNA sample. The judgment and commitment order was entered on November 19, 2008, and appellant filed a timely notice of appeal on December 15, 2008.
We first address appellant’s argument that the circuit court erred in de nying his motion to dismiss on the charge of carrying a weapon. Although appellant challenged the denial of this motion in his second point on appeal, double-jeopardy concerns require that we review arguments regarding the sufficiency of the evidence first. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008). A challenge to the sufficiency of the evidence asserts that the verdict was not supported by substantial evidence. Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
A person commits the offense of carrying a weapon if he possesses a handgun, knife, |sor club on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ the handgun, knife, or club as a weapon against a person. Ark.Code Ann. § 5-73-120(a). The statute defines a “club” as “any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking.” § 5-73-120(b)(l). On appeal, appellant asserts that neither the baseball bat nor the landscaping tool meet the definition of a club because there was no evidence that the items had been adapted for the purpose of inflicting serious physical injury or death by striking. The State responds by arguing that appellant has changed his argument on appeal and, thus, his argument is not preserved for this court’s review.
Rule 33.1 of the Arkansas Rules of Criminal Procedure provides, in pertinent part:
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.
Ark. R.Crim. P. 33.1(b) & (c) (2009). In this case, the argument that appellant raises on appeal was raised below, but it was not raised in his motion to dismiss at the close of the evidence. Instead, the argument was made in the context of a motion for “suppression of the weapons” along with his motion to suppress. In his motion to dismiss, which was made at the close of the State’s case and renewed at the close of all the evidence, he only argued that there was no evidence that he had intended to use either the baseball bat or the landscaping tool as |na weapon or that he did use either item as a weapon. This is clearly not the argument now being raised on appeal. Our case law is well-settled that a party cannot change the grounds for an objection on appeal, but is bound by the scope and nature of the arguments presented at trial. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901.
Appellant contends, however, that his argument is preserved, arguing that he made three motions to dismiss with regard to the charge of carrying a weapon: one during the suppression hearing stage of the trial, the second at the close of the State’s case, and a third at the close of all the evidence. Appellant argues that his renewal of all his motions, made at the close of all the evidence, encompasses the argument he made at the suppression hearing. This argument is flawed, however, because Rule 33.1 is clear that in a bench trial, motions for dismissal shall be made at the conclusion of all the evidence, or, in the alternative, at the close of the State’s evidence and renewed at the close of all the evidence, and a failure to challenge the sufficiency of the evidence at the times and in the manner required in subsection (b) will constitute a waiver of the question of sufficiency. A motion to dismiss made during a suppression hearing and before the completion of the State’s case-in-chief is simply not contemplated by the rule. We therefore find that appellant’s argument on this point is not preserved for our review.
Next, we address appellant’s argument that the circuit court erred in denying his motion to suppress. In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based upon the totality of the circumstances, reviewing findings | inof 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). A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. We defer to the superiority of the circuit judge to evaluate the credibility of witnesses who testify at a suppression hearing. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006).
On appeal, appellant argues that the evidence used against him was obtained in violation of Rules 3.1 and 2.2 of the Rules of Criminal Procedure, and thus the evidence should have been suppressed. Appellant first asserts that the evidence was obtained in violation of Rule 3.1 because the officer’s approach to his vehicle was not based on any specific, particularized, and articulable reasons that indicated appellant or his vehicle were involved in criminal activity. Rule 3.1 provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
“Reasonable suspicion” is defined as “a suspicion based on facts or circumstances which of | n themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R.Crim. P. 2.1. Our case law has established that whether an investigative stop is justified depends on whether, under the totality of the circumstances, the police have a specific, particularized, and articu- lable reason indicating that the person may be involved in criminal activity. Davis, supra. In addition, the Arkansas legislature has codified factors to be considered when determining whether an officer has grounds to “reasonably suspect” a person is subject to detention pursuant to Rule 3.1. These factors include, but are not limited to, the following:
(1) The demeanor of the subject;
(2) The gait and manner of the subject;
(3) Any knowledge the officer may have of the suspect’s background or character;
(4) Whether the suspect is carrying anything, and what he or she is carrying;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;
(6) The time of the day or night the suspect is observed;
(7) Any overheard conversation of the suspect;
(8) The particular streets and areas involved;
(9) Any information received from third persons, whether they are known or unknown;
(10) Whether the suspect is consorting with others whose conduct is reasonably suspect;
(11) The suspect’s proximity to known criminal conduct;
(12) The incidence of crime in the immediate neighborhood;
(13) The suspect’s apparent effort to conceal an article;
(14) The apparent effort of the suspect to avoid identification or confrontation by a law enforcement officer.
Ark.Code Ann. § 16-81-203.
In his argument, appellant cites Jennings v. State, 69 Ark.App. 50, 10 S.W.3d 105 (2000), in which the court of appeals reversed the denial of a motion to suppress after finding that the officer did not have a reasonable suspicion to detain and conduct a pat-down search of the defendant. In Jennings, the defendant was standing with another young man in a no-loitering area, at an intersection know for drug trafficking. The officer knew the other individual was a high-school student, so she stopped and asked the two what they were doing, and they stated that thpy were waiting for the bus. The officer asked for the defendant’s identification, and then confiscated a flask of alcohol that she saw in the possession of the student. At that point, she decided to do a pat-down search for her own safety, and although both men stated that they had no weapons, the officer found a small handgun at the defendant’s waistline. He was immediately placed under arrest and later searched; the search of his person revealed two small plastic bags of cocaine.
In reversing the denial of the defendant’s motion to suppress, the court of appeals found that the defendant had been in the wrong place at the wrong time and that there was no indication that he was committing, had committed, or was about to commit a felony or a misdemeanor involving danger of forcible injury. The court of appeals concluded that the officer had no reasonable suspicion to stop appellant under Rule 3.1. The holding in Jennings was based on this court’s decision in Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), in which we similarly reversed the denial of a motion to suppress. In Stewart, an officer observed Stewart standing on the corner outside her home, which was in a high-drug-traffic area, at approximately 1:45 a.m. The officer asked her to remove her hands from her coat 11spockets and walk toward the police car. As she approached the car, she placed her right hand inside her coat pocket two or three times, despite repeated requests to not do so. Based on that behavior, the officer believed she may have had a weapon and performed a pat-down search, finding a matchbox containing two rocks of crack cocaine. This court held that there was nothing about Stewart’s actions or demeanor that indicated she was involved in any type of illegal activity, that she was merely standing in the wrong place at the wrong time, and the fact that she repeatedly put her hands in her pockets could not be used to justify the stop, as the behavior occurred after the officer had already stopped and asked her to approach the car.
In this case, appellant argues that his case is factually analogous to Jennings. Appellant was legally parked at a department store during its regular business hours, and based on Officer Baker’s testimony, he was only suspicious of appellant because he had backed into a parking space. Appellant contends that there was nothing about his behavior that would give rise to reasonable suspicion and that Baker had no specific, particular, or articulable reason to approach him. According to appellant, Baker approached him under the same flawed reasoning employed by the officer in Jennings, which was merely to see if the defendant was doing anything wrong.
Appellant also cites Mathis v. State, 73 Ark.App. 90, 40 S.W.3d 816 (2001), in which the defendant was stopped and detained after he drove his vehicle near a place being searched for methamphetamine manufacturing items pursuant to a search warrant. A subsequent search of the defendant’s person revealed a handgun, two small bags of white powder, and a 114marfjuana pipe, and a search of the vehicle revealed two bags of marijuana and a sawed-off shotgun. In reversing the denial of the motion to suppress, the court of appeals held that the defendant’s presence within 20 to 30 feet of an area that was being searched, at 10:00 p.m., and the officer’s testimony that he knew defendant and knew that methamphetamine had been manufactured at the place being searched, did not provide reasonable suspicion for an investigatory stop pursuant to Rule 3.1.
Appellant argues that the instant case is similar to Mathis because, much like the facts of Mathis, there was nothing unusual about the time of appellant’s presence at the department store. Further, appellant argues that none of the robberies investigated by the task force had taken place at the department store, nor did any of the descriptions given by witnesses to the other robberies describe a vehicle similar to appellant’s. Appellant asserts there was nothing about his presence there that would lead the officer to believe he was associated with the robberies that the officer had been assigned to investigate and that the officer had no more than a bare suspicion of any wrongdoing. And finally, appellant argues that, when considering the factors enumerated in Ark.Code Ann. § 16-81-203, appellant’s behavior brings only one factor into play, namely proximity to criminal conduct. Appellant contends that this is insufficient to provide an officer with reasonable suspicion.
Appellant also argues that the evidence in this case was obtained in violation of Ark. R.Crim. P. 2.2, which provides:
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may 115request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
(b) In making a request pursuant to this rule, no law enforcement officer shall indicate that a person is legally obligat ed to furnish information or to otherwise cooperate if no such legal obligation exists. Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.
Ark. R.Crim. P. 2.2 (2009). An encounter under Rule 2.2 is permissible only if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime. Stewart, supra. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment; however, if an officer restrains the liberty of a person by means of physical force or show of authority, the encounter ceases to be consensual and becomes a “seizure.” See Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990). Appellant asserts that, in this case, the officer’s approach to his vehicle was a seizure that was not based upon any investigation or prevention of a particular crime.
In response, the State asserts that appellant’s reliance on Rule 2.2 is inapposite, as the greater suspicion to support appellant’s detention under Rule 3.1 includes that necessary to approach or detain him under Rule 2.2. With regard to Rule 3.1, the State argues that reasonable suspicion existed because of (1) appellant’s suspicious behavior, (2) the time of day in which the officer saw appellant, (3) appellant’s movement in reaching down when the officer shined a light on him, (4) the fact that appellant was carrying a weapon, and (5) the fact that crime was a significant problem in the area where appellant’s truck was parked. For | ,fisupport, the State cites Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002), in which this court affirmed the denial of a motion to suppress. In Jefferson, police officers were patrolling a trailer park, which had been the subject of numerous complaints of criminal activity, at approximately 2:00 a.m. and observed Jefferson emerge from between two trailers. Upon seeing the officers, Jefferson appeared startled, changed his direction of travel, and quickened his pace. One officer stepped out of the patrol car and called to Jefferson to come to the car; however, he did not turn towards their car until told to do so a second time. As he approached the patrol car, he put his hand in his pocket, which caused the officer to draw his weapon, and when he took his hand out of his pocket, he dropped something, later discovered to be a pill bottle containing crack cocaine, on the ground. This court held that the stop did fall under the ambit of Rule 3.1 and that the officers had a reasonable suspicion that criminal activity was afoot.2
The State argues that the present case is not unlike Jefferson, and in fact presented more danger to the officer because appellant was in a car and not out in the open. Crime was also a significant problem in the area where appellant was parked, and appellant reached down once the officer shined a light on him, which gave the officer reason to be concerned for his safety. In addition, this incident occurred in the evening, the same time of day that the robberies had been committed. These facts, combined with appellant’s suspicious behavior [ 17of backing into a parking spot in a dark area of the parking lot, gave the officer reasonable suspi cion to approach appellant’s vehicle. The State also asserts that multiple factors under § 16-81-203 were present: the particular area involved; the proximity to known criminal conduct; the incidence of crime in the immediate neighborhood; the time of night appellant was observed; appellant’s apparent effort to conceal an article; and the fact that appellant was carrying a weapon.
This court has explained that police-citizen encounters can be classified into three categories:
The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articula-ble suspicion” that the person has committed or is about to commit a crime. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.
Thompson, 303 Ark. at 409, 797 S.W.2d at 451-52 (citing U.S. v. Hernandez, 854 F.2d 295 (8th Cir.1988)). In Thompson, a police officer noticed Thompson’s vehicle while on patrol at 1:30 a.m. The vehicle was parked legally on the street with its lights on and the motor running. Ten minutes later, the officer passed by again, and the vehicle was still parked with 118its lights on and the motor running, so the officer stopped his patrol car behind Thompson’s vehicle and approached to investigate. As a result, Thompson was eventually arrested for and convicted of DWI, and on appeal, he argued that the officer’s approach constituted a seizure that was unlawful under the fourth amendment. This court disagreed and found that the officer’s approach to investigate Thompson’s car fit the first category of police-citizen encounters, and thus was not a “seizure” within the meaning of the fourth amendment. This court also recognized that “[t]he authority for a police officer to act in this type of nonseizure encounter is recognized in Ark. R. Civ. P. 2.2(a).” Thompson, 303 Ark. at 410, 797 S.W.2d at 452. See also Booster v. State, 274 Ark. 539, 543, 626 S.W.2d 935, 937 (1982) (explaining that Rule 2.2 is a “codification and an accommodation of’ a police officer’s interest in approaching any citizen pursuant to his investigative law enforcement function).
The court of appeals has also considered facts similar to the case at bar in Adams v. State, 26 Ark.App. 15, 758 S.W.2d 709 (1988). In Adams, an officer was on routine patrol at 6:30 p.m. when he noticed a car, -with no lights on, parked in a dark area near a high school. The officer saw that the vehicle was occupied but the motor was not running although the weather was cold. Because of these facts, and because there had been several burglaries in the area, the officer pulled in behind the car and turned his spotlight on it. The officer approached the driver’s side, tapped on the window, and asked for identification from the two occupants. When the driver rolled down the window, the officer smelled a strong odor of marijuana.
While waiting for backup to arrive and running the occupants’ driver’s [ ^licenses, the officer observed the male passenger, Adams, making unusual movements as if he were stuffing something down the front of his pants. The officer asked the passenger to step out of the vehicle and frisked him, finding a large plastic bag containing several smaller bags of marijuana, two roach clips, and some scales. Adams was later convicted of possession of a controlled substance with intent to deliver and possession of drug paraphernalia.
On appeal, Adams argued that the officer’s investigation of the car was not supported by reasonable suspicion and thus unlawful under Rule 3.1. The court of appeals, however, disagreed that the case was required to be judged by Rule 3.1, instead finding that the initial investigation was justified pursuant to Rule 2.2, and once the car window was rolled down and the officer smelled marijuana, he had a reasonable suspicion that the occupants were committing, had committed, or were about to commit a crime which authorized the officer to detain them pursuant to Rule 3.1.
In the present case, we find that, similar to the initial investigations in Thompson and Adams, Officer Baker’s initial approach to investigate appellant’s vehicle was lawful pursuant to Rule 2.2. And, upon seeing appellant’s movement in reaching down when the officer shined his lights on him, combined with the other factors present, namely (1) the vehicle was backed into a parking spot in a dark area of the parking lot, (2) in the evening, and (3) in an area that recently had a high incidence of armed robberies, in which the police suspected that a possible get-away car was being used, Officer Baker had a reasonable suspicion that justified detaining appellant pursuant to Rule 3.1. We therefore affirm the circuit court’s denial of|j>nappellant’s motion to suppress.
Affirmed; Court of Appeals reversed.
HANNAH, C.J., and SHEFFIELD, J., dissent.
. While appellant cites this standard in his argument regarding Rule 2.2, this is the standard imposed when evaluating whether a stop was justified under Rule 3.1. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
. Again, "reasonable suspicion” is a term used in evaluating a stop pursuant to Rule 3.1.
. While appellant referred to his motion below as one for directed verdict, in a bench trial, a challenge to the sufficiency of the evidence is made in a motion for dismissal. See Law v. State, 375 Ark. 505, 292 S.W.3d 277 (2009) (explaining that a motion to dismiss in a bench trial is identical to a motion for a directed verdict in a jury trial in that it is a challenge to the sufficiency of the evidence). Therefore, we will refer to appellant's motion as a motion to dismiss.
. The State also cites the "fact” that appellant’s engine was running as further support of reasonable suspicion. However, there appears to be no testimony from either officer that the engine of appellant’s truck was running; instead, it appears this "fact” was erroneously stated by counsel at trial. Therefore, it will not be considered as a factor in this analysis.
. We disagree in part with the State’s assessment of the facts supporting reasonable suspicion in this case; clearly, the fact that appellant was carrying a "weapon” is something that was discovered after the officer's approach and therefore cannot be used to support reasonable suspicion. | [
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George Rose Smith, Justice.
In 1959 the appellant, Southwestern Bell Telephone Company, in the mistaken belief that it had a valid easement across the vacant 17-acre rural tract involved in this ease, buried a long-distance telephone cable along the east edge of the property. The cable was forty inches deep and about twelve feet inside the boundary line, which abutted a railroad right-of-way.
Six years later the appellee purchased the tract and, upon learning about the cable, demanded that Southwestern Bell remove it. The telephone company brought this suit to enjoin Poindexter from damaging the cable. At the company’s request the chancellor held the case in abeyance to permit Southwestern Bell to acquire a valid easement by condemnation. The judgment in tbe condemnation case was for $375. Thereafter the chancellor heard the present case upon Poindexter’s counterclaim and awarded him $170 in actual damages and $1,000 in punitive damages. Hence this appeal.
Bell’s plea of the governing two-year statute of limitations is decisive. Bell acquired its purported easement from E. J. Sprayberry on May 1, 1959, but Spray-berry had sold the tract to Ray O. Alley in the preceding March. Bell, ignorant of the defect in its title, recorded its deed and laid the cable in 1959. Its occupancy was not questioned until soon after the appellee Poindexter bought the land from Alley’s widow in 1965.
Even though Act 51 of 1951, which contains the two-year statute of limitations, is entitled, in §1, “Rural Telephone Cooperative Act,” we cannot sustain the appellee’s insistence that the act applies only to telephone cooperatives. Ark. Stat. Ann., Title 77, Ch. 16 (Repl. 1957). To the contrary, the act contains several provisions applicable to “telephone companies,” which are defined in §2 to include persons, firms, and corporations, “other than a cooperative,” that operate telephone systems within the state. Southwestern Bell un questionably falls within the statutory definition of a telephone company.
For instance, § 4 (6) of the act authorizes cooperatives to interconnect with telephone companies. Section 32 (3) of the act required existing telephone companies to define their territorial limits in applying for certificates of convenience and necessity within 120 days after the passage of the act. Section 39 requires both telephone companies and cooperatives to construct their lines and facilities in compliance with the National Electric Safety Code.
The two-year statute of limitations is found in § 36, which by its express words applies both to private companies and to cooperatives. Here is its pertinent language: “No suit shall be brought against any telephone company or cooperative by the reason of the maintenance of telephone lines, poles, and fixtures, on [erroneously printed as “or” in the Annotated Statutes] any real property , . . . unless it is commenced within two years after the cause of action has accrued; ...” Ark. Stat. Ann. § 77-1636. We consider the explicit language of the statute to be conclusive.
Alternatively, Poindexter argues that the buried cable was so concealed that it did not put him (or his predecessor in title) on notice. According to the proof, however, Bell has maintained from the beginning three separate posts, 16 feet high, at intervals along its supposed easement, supporting yellow signs, 18 by 24 inches, that bear this message: “Warning. Telephone Cable Buried In This Vicinity. Please Do Not Dig In This Vicinity Without Calling Telephone Number Enterprise 9800.”
Poindexter seeks to escape the notice-giving force of those signs by his testimony that they were in an area “where you had to go through thick underbrush and pine trees to find it.” Even so, there are several flaws in his contention. First, he admits that he .did not inspect the property before he bought it; so he would not have seen the notices even if the underbrush and pine trees had not been there. Second, a prospective purchaser of part of the tract did make an inspection, discovered the signs, and told Poindexter about the cable. Thus the only relevant proof that has been brought to our attention indicates that the signs would have been discovered by a diligent purchaser. Finally, the proof does not suggest, and we are not told, how Bell might better have given notice of its underground cable than by posting conspicuous signs at intervals along the easement itself. That the landowner permitted the land to become overgrown with underbrush cannot fairly be used to nullify Bell’s effort to give notice of its occupancy of the easement.
The decree is reversed and the counterclaim dismissed.
Byrd, J., dissents. | [
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Conley Byrd, Justice.
The appellants, Conway County Clerk Jack Bland, Attorney General Joe Purcell and Ruth Clements, J. C. Stroud and J. C. Oliger, the Conway County Board of of Election Commissioners, appeal from a judgment declaring Ark. Stat. Ann. § 3-841 (Supp. 1967) (Acts 1965, No. 68, § 1), invalid and directing’ the return of $800 paid under protest by appellee Jerry Mahan, an independent candidate for Sheriff in the 1966 general election. The sole issue is the constitutional validity of § 3-841, supra.
The record shows that the Conway County Republican Party fixed its primary ballot fee for the office of County Sheriff at $500, and that the Conway County Democratic Party fixed its fee for the Sheriff’s office at $800. Ark. Stat. Ann. § 3-205 (Supp. 1967), recognizes that a person seeking to qualify as a candidate for party nomination must “pay such ballot fees as may he required by said party.”
Under Arkansas law a person may qualify as a candidate for public office in any one of three ways:
1. As the nominee of a political party holding a primary election;
2. As an independent candidate by the filing of petitions signed by 15% of the total number voting for Governor at the preceding general election; and
3. As a write-in candidate by giving written notice to the County Board of Election Commissioners 30 days prior to the election.
A candidate qualifying as a party nominee, in addition to presenting Ms certificate of nomination, must pay a fee of three dollars required by Ark. Stat. Ann. § 3-261 (Supp. 1967). An independent candidate, in addition to filing his petitions, must also pay the three dollar fee and comply with § 3-841, supra, the validity of which is here in question. No fees are required of write-in candidates.
The record shows that appellee first qualified as a Republican candidate for Sheriff, but withdrew and qualified as an independent candidate. Although he was defeated in the 1966 general election, we still have the issue of the validity of the statute before us because of the $800 paid under protest to the County General Fund.
Section 3-841, supra, here in question provides:
“Hereafter, any person who shall file as an independent candidate, as authorized by Act No. 352 of 1955 (Arle. Stats. (1947) Sec. 3-836 through 3-840), for election as United States Senator or Congressman, or for any state, district, or county office in this State shall pay a filing fee in the same amount charged by the appropriate officals of the political party in this State charging the greatest filing fee for nomination for such office at the primary election of such political party preceding the general election at which such person is a candidate. Such filing fee shall be paid by such independent candidate at the time of filing petitions required by said Act 352 of 1955, but in no event later than sixty (60) days preceding the date of the general election at which such person is to be a candidate. Such fees shall be credited to the county general fund.”
In Crowly v. Thornbrough, Comm’r of Labor, 226 Ark. 768, 294 S.W. 2d 62 (1956), we had before us an act delegating to the Secretary of Labor of the United States the right to fix the minimum wage scale on public construction contracts to which the State was a party. In holding that act invalid, we said:
‘ ‘ The Act fails to -establish a standard or formula by which a wage scale may be formulated; but rather delegates to the Secretary of Labor of the United States the right to fix the minimum wage scale to be paid in a particular area of this State. The State retains no control over the Secretary of Labor of the United States, therefore, the Act violates Article 4, Sections 1, 2 and Amendment 7 to our State Constitution. Numerous decisions from other states have held similar legislation to be unconstitutional delegation of legislative authority to an agency of the United States Government.”
Here, too, § 3-841, S'uq>ra, fails to establish a standard or formula by which the fees for independent candidates are to be fixed. Therefore, we hold that the statute is invalid because it is an unconstitutional delegation of the legislative authority.
Affirmed. | [
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J. Feed Jones, Justice.
This is an appeal from the Madison County Chancery Court and it is difficult to determine from the record before us, exactly what this case is about. Apparently the pleadings, exhibits, testimony and arguments in this case, were as confusing to the chancellor as they are to us.
The record reflects that on June 17, 1964, the appellee, Gentry, filed a complaint in the Madison County Chancery Court alleging that on March 6, 1959, he entered into a contract with the appellant, John E. Yarbro, under the terms of which he sold to Yarbro certain personal property on which he retained a lien for the purchase price which had not been paid. Although the complaint recites that a copy of the contract was attached to the complaint as exhibit “A”, no exhibit “A” appears in the record before us and no contract is attached to the complaint. The complaint alleged that the contract was a security arrangement in that Gentry had a first lien on all of the property contained and described in the contract. The complaint alleged that the defendant, Yarbro, was in default in the terms of the contract, and that the plaintiff elected to foreclose the security transaction. The complaint then prayed judgment against Yarbro in the sum of $10,923.59, plus interest from April 1, 1964, and that if the judgment be not paid within the time fixed by the court, the property be sold at public auction in the manner and under the terms to be fixed by the court. In the alternative, the complaint prayed that if the court should find “this is not a security contract,” the court order said contract canceled and that the defendant be ordered and directed to deliver to the plaintiff all of the property called for and described in the contract, together with costs.
Following the complaint in the transcript, appears a separate mimeographed copy of a sheet of paper containing a list of various items of machinery. At the bottom of this list of items a deletion appears in the mimeographing process, leaving the last item on this mimeographed list as follows: “One lease contract, dated February 4, 1952, covering the following described real estate:
“The NE Quarter of the SW Quarter of Section 19, Township 17, Range 25, including the location of the two [2] rock quarries.”
No lease contract, or copy thereof, appears in the entire record. This mimeographed sheet has a notation in the margin “Ex. #1” and on the bottom of this sheet appears a notation as follows: ‘ ‘ This was marked exhibit No. 1 for the defendant-petitioner, to the testicony of Mr. Gentry.” Preceding this notation there is also what appears to be a reporter’s notation, and one with which we heartily agree, as follows: “This was not attached to any pleading, so do not know where it is supposed to be placed in this record.”
It would only prolong this opinion to point out all the inadequacies of the record, but it appears that on June 9, 1965, the chancellor signed an order which was recognized and treated by the parties at the time, as a judgment for Gentry against Yarbro in the amount of $11,657.99 and for a foreclosure of a lien against property. This order recites as follows:
“It is, therefore, ordered, adjudged and decreed that the equity of redemption of defendant and all persons claiming under, through or from him in and to the said property, to-wit: Be and the same hereby is forever barred and foreclosed as well as any rights, equities, title or interest of any such persons to any property into which any part of the value of the above described property has been transformed by ‘trade-in,’ ‘set-off’ or in any other manner.”
This order then directed the sale of the property by the sheriff and directed the disposition of the proceeds from such sale toward the satisfaction of the judgment.
On July 2, 1965, the chancellor signed an order reciting that by the order of June 9, he had found for the plaintiff in the amount of $11,657.99 upon a contract and vendor’s lien set forth in the complaint and the sheriff of Madison County was ordered to proceed to execute on the judgment, and apply the proceeds from sale “First, to the payment of all costs accrued in this action; Second, to the costs and expenses of said sale; Third, to the amount found due to plaintiff aforesaid, with interest and costs as aforesaid, and with attorney’s fees in the amount of 10% of the total amount recovered for plaintiff.”
The next item in the transcript of record before us is an instrument titled “Writ of Execution” directing the sheriff of Madison County as follows:
“You are commanded that of the estate of John E. Yarbro, you caused to be made the sum of $11,-657.99 which Joseph A. Gentry, late in our court, recovered against him for debt with interest thereon from the 18th day of May, 1965, to June 9, 1965, at the rate of 5% per annum and from June 9, 1965, to date of the decree, which is the basis of this Writ of Execution at the rate of 6% per annum; also, attorney’s fee in the amount of 10% of the total amount recovered and the costs of said Joseph A. Gentry in this suit expended; and that you have said sums of money within sixty (60) days to render to the said Joseph A. Gentry his debt, interest and the costs aforesaid.
“The execution herein is as to that property which was the subject of a contract between Joseph A. Gentry, plaintiff, and John E. Yarbro, defendant, dated March 6, 1959, more specifically the following property, to-wit:”
Then follows a list of machinery and equipment but no lease on real property is mentioned in this instrument. This instrument does show a date of July 3, 1965, and was apparently signed by the clerk of the chancery court of Madison County, but it bears a reporter’s notation “no filing mark on this paper.”
The record indicates that a public sale was carried out by the sheriff of Madison County at which eighteen items of the personal property contained in the writ of execution were offered for sale, and that Gentry offered the highest and best bid at the sale and purchased the items for $100,00 which was credited on his judgment against Yarbro. This accreditation is only evidenced by an unsigned, and apparently unfiled, bill of sale form prepared with the intention that the sheriff would sign it on September 3, 1965.
Such was the status of the record in this case when on February 5, 1968, a motion was filed by the defendant, Yarbro, stating that on the 9th day of June, 1965, the court made an order directing that certain personal property and one lease contract, dated February 4, 1952, be foreclosed and sold under the direction of the sheriff of Madison County; that in said order no judgment was rendered against defendant in favor of the plaintiff; that such order provided, “if proceeds of sale are not sufficient to make said payments, this decree shall not bar the decree of deficiency judgment against defendant herein.” The motion then alleged that the per sonal property and lease described in the order were not sold as directed by the conrt, and that no decree of deficiency judgment was ever rendered against the defendant; that the court should direct the sale of said property so that the court order dated June 9, 1965, could be carried out and the proceeds from such sale could be credited on any sums that defendant may owe to the plaintiff and a deficiency judgment rendered against the defendant for any sum remaining unpaid. This motion concludes as follows:
“Wherefore defendant prays that the court make an order finding (1) that said personal property and lease described in the order of the court dated June 9, 1965, were not sold and should be sold to carry out said order in all respects, (2) that no valid judgment was rendered against the defendant in said order, (3) that by the terms of said order of June 9, 1965, a deficiency judgment was not to be rendered against the defendant until a later date which was not done, as the property was not sold, (4) that writs of garnishment issued hy the Clerk of the Court should he quashed and set aside, and for all other just and proper relief.” (Emphasis supplied.)
Gentry responded to this motion setting out that the order of June 9, 1965, had been carried out by the sheriff in levying on the property under the order of July 2, 1965; that the order had been fully executed by the sheriff; that no mention was made pertaining to the sale of real estate or lease on real estate; that the judgment obtained by Gentry against Yarbro had not been appealed; that the very matters litigated in the original suit are now being sought to be re-litigated by the defendant and the defendant is estopped by judgment in the original suit and by delay in attempting to litigate the matter further. The plaintiff concludes his response to defendant’s motion with a one sentence paragraph as follows: “The plaintiff further sets up the defense by res adjudicata.”
The chancellor made a finding of facts indicating that the record in this case was as confusing to him as it is to us, but the chancellor overruled the motion in the following language:
“1. [T]he motion of the defendant asking for sale of the lease contract dated Feb. 4, 1952, covering the following real estate in Madison County, Arkansas, to-wit: NEx/4 of SW% of Sec. 19, Township 17, Range 25, including the location of 2 rock quarries, is denied and the motion dismissed.
“2. [T]he plea of the plaintiff, Joseph A. Gentry, of estoppel and res adjudicata is sustained.
“It is therefore decreed and ordered that the motion of the defendant, John E. Yarbro, is dismissed for want of equity, with costs to be paid by defendant. ’ ’
Yarbro appeals to this court and relies on the following points for reversal:
“1. The court erred in allowing the claim of estoppel which was not specially pleaded and proved.
“2. The court erred in allowing the claim of res adjudicata which was not specially pleaded and proved.
“3. The court erred in not ordering the sale of the lease.”
We gather from the overall record before us, that Yai’bro purchased mining equipment, together with a lease from Gentry, and defaulted in payment when due. Gentry sued and obtained judgment for balance due. Gentry attempted execution and purchased some of the personal property at a sheriff’s sale and credited the sale price on his judgment against Yarbro. Gentry has now sued out a garnishment against funds due Yarbro, and Yarbro contends that Gentry retained a lien on the lease, as well as other property, to secure the sale price and that the lease should be sold and the proceeds credited to the judgment before garnishment should attach. Gentry contends that he now owns the lease as a result of another lawsuit.
The record is not at all clear as to what happened to the alleged lease as between Gentry and Yarbro in this case. The complaint does not mention a lease, and although the complaint does refer to a contract, the contract is not in the record. The order of June 9, 1965, ordering the sale of mortgaged property does not mention a lease and no mortgage appears in the record. There was no lease mentioned in the order of sale and there is nothing in the record before us that would indicate that a lease on real property should have been sold under execution.
Both Mr. Gentry and Mr. Yarbro, however, seem to recognize that a lease on real property constituted a part of what Gentry sold to Yarbro and for which Yarbro had not paid Mr. Gentry when this lawsuit was commenced. Both Gentry and Yarbro seem to recognize that Gentry obtained a judgment against Yarbro which included the amount Yarbro had agreed to pay for the lease, together with other property. On this point Mr. Gentry testified as follows:
“Are you the same Joseph A. Gentry that was in a case against John E. Yarbro, being number 3484 in the Chancery Court of Washington County-Madison County, Arkansas?
A. Yes, sir.
Q. In 1965?
A. Yes, sir.
Q. And Mr. Gentry, in that suit, yon were foreclosing, I believe, a lien, was it not?
A. A sales contract.
Q. A sales contract consisting of what?
A. Equipment, mining equipment.
Q. And a lease?
A. Yes.
Q. Was it this particular lease which is mentioned in the pleadings here?
A. Yes.
Q. All right.
A. A lease.
Q. I hand you this, document and ask yon to tell me what that is?
A. It’s a list of the equipment I sold to Mr. Yarbro.
Q. Does it include the lease also down at the bottom: ‘The Northeast quarter of the Southwest quarter of Section 19, Township 17, Range 25, including the location of two rock quarries.’
A. I believe that is correct. I wouldn’t say for sure. It’s the same lease that the Supreme gave back to me. [sic].
Q. It’s the same what?
A. The same lease that the Supreme Court said was mine. The same one.
Q. Do you know who owned that lease at the time you filed this action against Mr. Yarbro?
A. Berry Denny owned the land and Mr. Yarbro was supposed to own the lease.”
Certainly the appellant, Yarbro, by his motion filed in this case, recognizes the lease as being a part of the property he purchased from Gentry and for which the judgment was rendered against him. Gentry contends that he already owns the lease which Yarbro contends should be sold and the proceeds applied on Gentry’s judgment against him.
The mandate and decision of this court in Gentry v. Holland, 243 Ark. 172, 419 S.W. 2d 130, was offered in evidence by the appellee, Gentry, and was made a part of the record in this case. Extrinsic evidence was offered to the effect that the lease involved in the Holland case is the same lease that is involved here, so we conclude that our decision in the Holland case is res judicata only as to the identity of the same lease in both eases. (Hastings v. Rose Courts, 237 Ark. 426, 373 S.W. 2d 583). Gentry v. Holland, as the decision points out, was a suit by Holland to quiet his title, the lease here involved being the primary cloud complained of. Holland, as fee owner, claimed forfeiture of the lease for default in monthly rental payments. The chancellor held that the mining lease had forfeited to the fee owner in that case and we reversed, holding that Gentry was the owner of the lease.
As to the lease in the Holland case, we said:
“ Gentry sued Yarbro and on June 9, 1965, a judgment was entered in that case in the Madison Chancery Court. All rights of Yarbro in and to the lease were cancelled. The personal property was ordered sold to apply on Gentry’s judgment. * * * The Madison Chancery Court, in an action separate from the one before us, determined that Gentry was entitled to be reinvested with that which he conveyed to Yarbro. * * * We affirm the trial court’s findings in all respects except as to the lease in question, title to that instrument being vested in Gentry.”
Our decision in the Holland case indicates that it may have been partially based on the record in the case now before us, but the case now before us does not contain any part of the record upon which the Holland decision was based. We do not take judicial notice of records of evidence in other cases in deciding a case that is before us. Murphy v. Citizens’ Bank of Junction City, 82 Ark. 131, 100 S.W. 894, 11 L.R.A. (n.s.) 616, 12 Ann. Cas. 535; Adams v. Billingsley, 107 Ark. 38, 153 S.W. 1105; McCoy v. Anthony Land Co., Inc., 230 Ark. 244, 322 S.W. 2d 439; Gibson v. Buckner, 65 Ark. 84, 44 S.W. 1034; Hall v. Cole, 71 Ark. 601, 76 S.W. 1076.
As we view the case now before us, res judicata as to Gentry’s ownership of the lease is beside the point. The actual difference between Yarbro and Gentry, is not which of them owns the lease. The question is not whether the lease reverted to Gentry by cancellation of a contract with Yarbro under.the terms of the contract, or under a court order. The question is not whether title to the lease vested in Gentry through foreclosure of his “contract” or mortgage against Yarbro, or because of Yarbro’s default in diligence in the Holland case. The actual question as between Gentry and Yarbro as we see it, is whether Gentry’s judgment against Yarbro includes the sale price of the lease, and if so, whether the judgment has been credited with the value of the lease.
We are of the opinion that if Gentry sold the lease to Yarbro and retained a lien on it as security for its purchase price; and if the price Yarbro agreed to pay for the lease is included in the judgment against Yarbro for its purchase price, then such judgment should be credited with the value of the lease.
We conclude, therefore, that this case should be remanded to the trial court for a determination of whether the value of the lease was included in the judgment Gentry obtained against Tarbro, and if the value of the lease was so included, the value of the lease as of the date of the judgment, should be determined and credited on the judgment. This case is remanded to the Madison County Chancery Court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Brown and Byrd, JJ., dissent. | [
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John A. Fogleman, Justice.
Appellants allege error in the judgment of the trial court rendered January 11, 1968, reversing the Workmen’s Compensation Commission order denying and dismissing the claim of appellee Lester Hughes against his employer, Herman Wilson Lumber Company. The order was based upon a finding that the condition upon which Hughes based his claim was a disease known as aspergillus , a fungus infection of the lung, which was neither caused nor aggravated by his employment. The trial court found that there was no substantial evidence to support the finding of the Commission. We disagree.
Hughes was employed by the employer-appellant, from 1957 or 1958 to March 3, 1965. Ón that day, Hughes coughed and spit up blood while performing his duties for his employer at Leola. He claims that this occurred immediately after a log which he was maneuvering into position to load on a carriage for sawing, suddenly rolled back and jerked him down. He was examined immediately thereafter by Dr. Curtis Clark at Sheridan who made a tentative diagnosis of pulmonary tuberculosis and referred him to McRae Sanatorium. He was treated there until October 12,1965 when he was discharged and referred to the University of Arkansas Medical Center for exploration for the possibility of carcinoma of the lung. Dr. Thomas Bell removed the upper lobe of Hughes’ left lung. This doctor gave the diagnosis of the disease upon which the Commission based its finding. After leaving the hospital, Hughes consulted Dr. George D. Taylor who recommended his return to his job on March 28,1966. Appellee stated that he returned for about one month, but found himself unable to continue.
In reviewing the evidence it must be given its strongest probative force in favor of the action of the Workmen’s Compensation Commission. Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S.W. 2d 822. The findings of the Commission have the same force and effect as a jury verdict and cannot be disturbed if supported by any substantial evidence. Easton v. H. Baker & Co., 226 Ark. 687, 292 S.W. 2d 257; Williams v. Gifford-Hill & Co., 227 Ark. 340, 298 S.W. 2d 323; Arhansas Best Freight Co. v. Shinn, 235 Ark. 314, 357 S.W. 2d 661; Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S.W. 2d 484. In order to justify a reversal of the Commission’s decision, one appealing must show that the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the Commission. Hall v. Pittman, 235 Ark. 104, 357 S.W. 2d 263; McCollum v. Rogers, 238 Ark. 499, 382 S.W. 2d 892.
An examination of the record discloses the following which constitutes substantial support of the commission’s action:
In 1957, before his employment by appellant-employer, appellee had consulted Dr. Tilley in Arkadelphia who sent him to the University of Arkansas Medical Center. His discharge summary showed that he came there with a sore throat and hemoptysis. Diagnosis was an infiltrating process of the left upper lobe of the lung and inactive tuberculosis. He was discharged in 1958. Apparently he had no difficulty until the occasion upon which he bases his claim.
Dr. Clark stated that x-rays taken by him indicated pulmonary tuberculosis. After a culture taken by him was positive, his diagnosis was pulmonary tuberculosis, moderately advanced, active. It was his opinion that appellee’s tuberculosis and fungus lung condition were not caused or aggravated by his employment.
The report of Dr. J. V. Lambert, staff physician at McRae Memorial Sanatorium, showed that an x-ray taken on the date Hughes was admitted showed infiltration and fibrosis at the left apex. While an x-ray film taken one month later showed improvement, another taken in September 1965 showed no significant changes. Direct smears on March 11 and 15, 1965, showed positive and a culture on the latter date showed positive for “APB”. All other cultures and gastrics were negative. Discharge diagnosis was pulmonary tuberculosis, minimal, inactive and possible carcinoma of the lung. A progress record from the sanatorium revealed that a “PA” film of July 14, 1960 showed evidence that Hughes then had a disease of the left lung apex with questionable cavity and some infiltration along the left bronchial areas.
Dr. Thomas E. Bell testified, in substance: Appellee’s lung trouble was caused by a fairly uncommon fungus infection which occurs more frequently in persons who have had tuberculosis in the past; the tests at the Medical Center showed no evidence of tuberculosis; the fungus could have been present as long as two or three years prior to the development of symptoms; a man’s work or activity, in my opinion, would not cause or have any relation to the condition at all; while it is possible that a sudden strain could cause the blood vessel running through the infection to rupture, resulting in a spitting up of blood, just the disease process itself produces'the same result; the bleeding is a symptom of the disease and not a disabling condition; if there is bleeding, the disabling condition airead}'' exists.
Dr. G-eorge D. Taylor stated that he first prescribed for Hughes December 6,1965, and after several visits recommended that he return to work May 28, 1966. He also revealed that he had treated Hughes in the fall of 1964 when his nose had bled and he had coughed up blood. This doctor admitted that he had then suspected tuberculosis but did not make any test. Dr. Taylor did not know whether or not Hughes’ disability or operation resulted from his job.
Perhaps the trial court fell into error by reason of its conclusion that statutory law requires that testimony must always be given a liberal construction in favor of the claimant. It is true that it is the duty of the Workmen’s Compensation Commission to draw every legitimate inference possible in favor of a claimant and to give him the benefit of the doubt in factual situations. Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S.W. 2d 822; Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S.W. 2d 484; Simmons Nat’l. Bank v. Brown, 210 Ark. 311, 195 S.W. 2d 539. But it is not the province or duty of either the circuit court or this court to make a de novo application of this rule on review. Both courts are required to view the evidence in the light most favorable to the findings of the Commission and to ■ give the testimony its strongest probative force in favor of the action of the full commission. Green v. Lion Oil Co., 215 Ark. 305, 220 SW. 2d 409; McCollum v. Rogers, 238 Ark. 499, 382 SW. 2d 892; Burrow Construction Co. v. Langley, supra. The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made. Campbell v. Athletic Mining & Smelting Co., 215 Ark. 773, 223 S.W. 2d 499.
The action of the Commission was taken more than sixty (60) days after the record of the Workmen’s compensation Commission was filed in the circuit court, contrary to Ark. Stat. Ann. § 81-1325 (b) (Supp. 1967). For this reason, appellants contend that the trial court was without jurisdiction to reverse this action. On the other hand, appellee contends that the 1967 Amendment to the Act is unconstitutional. Inasmuch as this case can be disposed of without determining the constitutional question, it is our duty to do so. County of Searcy v. Stephenson, 244 Ark. 54, 424 SW. 2d 369.
The judgment of the circuit court is reversed.
We assume that this reference is to Aspergillosis which, according to 2 Gray’s Attorneys’ Textbook of Medicine, § 40.71, is an infection caused by the fungus Aspergillus fumigatus. | [
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Paul Ward, Justice.
This is an appeal from a jury verdict in a damage suit involving a collision between a bus and an automobile.
Sondra K. Crouch (appellant) was severely injured when the car in which she was a passenger collided with a bus owned by Twin City Transit, Inc. (appellee) on West 13th Street in North Little Rock. The car was owned by Veloria Allison (mother of appellant) and was being driven by Ruby Reeves who was a visitor in the home of appellant and her mother.
On March 11, 1967, appellant filed a Complaint in the Saline County Circuit Court against appellee, alleging that negligence on the part of the driver of the bus was the proximate cause of the collision, and asking for damages (for personal injuries) in the sum of $25,000. In answer, appellee denied the allegation of negligence, and affirmatively pleaded; that appellant was in possession and control of the car; that she procured the services of Ruby Reeves to drive the car; that Ruby was “at all times the agent and employee of” appellant, and; that any injuries received by appellant were proximately caused by the negligence of herself and/or Ruby Reeves.
Along with other instructions the court gave, over appellant’s objection, its own Instruction No. 1 which reads:
“Ladies and gentlemen, in this case I am going to find as a matter of law that the driver of the vehicle occupied by the plaintiff was an agent of the plaintiff and thereby imputing any negligent act of that driver to this plaintiff.”
The jury returned a verdict in favor of appellee, hence this appeal:
Point for Reversal
The only ground urged by appellant for a reversal is that the trial court erred in giving the instruction quoted above. For reasons presently explained, we have concluded the court erred in giving the instruction.
The decisive question here presented is: Does the undisputed evidence show that Ruby Reeves was acting (at the time of the collision) as an agent for appellant? Restatement, Agency § 1, reads:
“The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents to the act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control.”
A. M. I. 701, in material parts, reads:
“An agent is a person who by agreement with another called the principal acts for the principal and subject to his control. The agreement may be oral or written or implied from the conduct of the parties and may be with or without compensation.
If one person has the right to control the actions of another at a given time the relationship of principal and agent may exist at that time, even though the right to control may not actually have been exercised.”
In our opinion the facts in this case do not justify the conclusion, as a matter of law, that Ruby Reeves was acting as an agent of appellant — -as defined above. There is testimony in the record from which a jury could have found: (a) the car was owned by the mother of appellant; (b) Appellant had never driven a car, and she did not have a driver’s license; (c) Euby Eeeves was a friend who had been visiting in the mother’s home for several days; (d) Euby had a driver’s license, and was a capable driver, and had been driving the car in question; (e) On the morning of the accident the mother left home to go to her place of employment, leaving the key to her car (and the car) with Euby; (f) the mother left the car in charge of Euby; (g) on the day of the collision appellant asked Euby if she would drive her to a certain place of business in North Little Eock where she hoped to obtain employment.
In view of the above it cannot be said, as a matter of law, that appellant had any control over the car or the driver. On the contrary, there is substantial evidence from which a jury could find the mother had control of the car or, if not, that she had relinquished control to Euby and not to appellant.
Accordingly, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. | [
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Conley Byrd, Justice.
The question involved on this appeal is whether the State Board of Election Commissioners, in appointing the third member of each County Board of Election Commissioners, must appoint those persons selected by the majority party or whether the State Board of Election Commissioners has discretion in the appointment of the third member.
This action was commenced by appellants Frank Ellis, Franklin S. Garrison, T. O. Porter, Chester Andres, Maxine G. Reed, Marguerite Turner and James W. Hurley, to mandamus the State Board of Election Commissioners to appoint them as third members of their respective County Boards to fill existing vacan cies. The allegations are that each had been designated by the Republican County Central Committee of his respective county as the third member of the County Board of Election Commissioners; that the Republican Party is the majority party as defined in Initiated Act No. 3 of 1948; and that at a meeting of the State Board of Election Commissioners on August 1, 1967, they were nominated as the third members of their respective County Boards of Election Commissioners but the State Board of Election Commissioners failed and refused to appoint them.
Testimony proffered at the hearing shows that at the August 1, 1967 meeting of the State Board, called to fill vacancies, appellants were nominated as the third members of their respective County Boards, and persons alleged to be members of the minority party (Democrats) were also nominated. By vote of 6 to 2 along party lines with the Governor as chairman abstaining, the State Board refused to nominate appellants and by a vote of 6 to 2 appointed those persons alleged to be Democrats. However, because the majority and minority parties differed on the interpretation of the law as to which party was to control appointment of the third members, the appointments made by the State Board have not been certified by the Governor, the ex officio chairman, and the Secretary of State, the ex officio secretary of the Board.
The State Board and the County Boards of Election Commissioners were set up under Initiated Act 3 of 1948. So far as here pertinent, it provided:
“SECTION 1. For the purpose of this Act, the majority party shall be construed to be that political party polling, in the State of Arkansas, the greatest number of votes for Governor in the last preceding general election and the minority party shall be construed to be that political party polling, in the State of Arkansas, the second great est number of votes for Governor in the last preceding General Election.
“SECTION 2. The Governor, the Attorney General, the Secretar}?' of State, the State Chairman of the State Central Committee of the majority party and the State Chairman of the State Central Committee of the minority party shall constitute the State Board of Election Commissioners. The Governor shall act as ex-officio Chairman of such Board and the Secretary of State shall act as ex-officio Secretary of such Board and shall keep the records of said Board.
“The County Chairman of the County Central Committee of the majority party and the County Chairman of the County Central Committee of the minority party shall be members of the County Board of Election Commissioners and together with one additional or third member to be appointed by the State Board of Election Commissioners, shall constitute the entire membership of the County Board of Election Commissioners for each of the several Counties in Arkansas. The third member of each County Board of Election Commissioners shall be appointed by the State Board of Election Commissioners at least ninety (90) days before any General Election for State, District or County office. ’ ’
# *= «= ^
“SECTION 3. It shall be the duty of the County Boards of Election Commissioners not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in their respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk at each precinct shall be chosen and appointed by the tivo members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the member of the County Board of Election Commissioners representing the minority party. The County Boards of Election Commissioners shall immediately upon performing such duties prepare, publish and post in a public place in the Sheriff’s office and in the County Clerk’s office of each County their respective list of appointees as judges and clerks of election.
“In the event the majority or minority representatives on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerks for each voting precinct then the County Boards of Election Commissioners by majority vote may fill such vacancies, provided, that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party.” (Emphasis supplied.)
The membership of the State Board of Election Commissioners was increased by the General Assembly, Acts 1951, No. 74, to nine members, by adding the Lieutenant Governor, the State Auditor, the State Treasurer, and the Commissioner of State Lands. Section 3 of Initiated Act No. 3 of 1948 was amended by the General Assembly, Acts 1963, No. 477, to read:
“It shall be the duty of the County Board of Election Commissioners, not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in their respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) cleric in each precinct shall be chosen and appointed by two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party. Provided further, that if there are no registered or known members of the minority party in any precinct or precincts within a county the minority party member of the County Board of Election Commissioners is hereby prohibited from naming any person to represent such minority party as a judge or clerk in any such precinct or precincts who is a member of the majority party, and in such event, the County Board of Election Commissioners shall by a majority vote name the judge and the clerk allotted the minority party for any such precinct or precincts. The County Board of Election Commissioners shall immediately upon performing such duties prepare, publish and post in a public place in the Sheriff’s office and in the County Clerk’s office of each County their respective list of appointees as judges and clerks of elections.
“In the event the majority or minority representatives on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerks for each voting precinct, as authorized hereinbefore then the County Board of Election Commissioners by majority vote may fill such vacancy, provided, that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party unless there are no members of the minority party registered in said precinct.” (Emphasis supplied.)
Our law holds that the writ of mandamus will not be granted to review the exercise of discretion of an officer or official board, but can be invoked only to compel the officer or board to exercise such discretion. Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S.W. 2d 10 (1946). To sustain their position here appellants point to section 3 of Initiated Act No. 3 of 1948 as amended, which provides that two judges and one clerk in each precinct shall be chosen and appointed by "two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party-” Based upon this language, appellants contend that the third member must be a member of the political party designated as the majority party by section 1 of the Initiated Act and that, since the statute declares him to be a representative of the majority party, it is the prerogative of the majority party to make this selection with the State Election Board being only a rubber stamp. An alternative argument made by appellants is that, since they were the only Republicans nominated at the August 1 meeting, the State Election Board had no discretion to exercise, it being bound by the statute to appoint a member of the majority party as a representative thereof. On the other hand, the State Board contends that it may choose anybody, irrespective of political party affiliation, to serve as the third member.
Appellants can find no solace in that portion of section 2 of the Initiated Act which provides that the third member is ‘‘to be appointed by the State Board of Election Commissioners.” The law generally is that the choice of a person to fill an office is the essence of an appointment and that the selection must be the discretionary act of the officer or board clothed with the power to do the appointing. People v. Mosher, 163 N.Y. 32, 57 N.E. 88 (1900). Furthermore, appellants’ “rubber stamp” argument is illogical. We find it difficult to believe that the legislature would increase the membership of the State Election Board from five to nine members if it was intended to function merely as a rubber stamp.
Appellants place much reliance upon the fact that section 3 of the initiated measure, both as originally written and as amended by the 1963 act, refers to “two commissioners representing the majority party.” Had the statute stopped with the term “representatives” of the majority or minority party, appellants’ argument would have more merit; hut the same statute, in dealing with election judges and clerks, specifically provides “ .. that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party.” (Emphasis supplied.) Since the state, when referring to County Election Commissioners, consistently uses the term “representing” or “representative,” but when referring to judges and clerks uses the term “members of the same political party,” logic dictates that a distinction was intended.
It has been argued that the political history of our state, having predominantly a one-part system at the time of the drafting of the statute, was such that the drafters did not foresee this problem and that the use of the phraseology was an oversight. With this we do not agree, for the Initiated Act itself was dealing with two parties, and the complement of the State Board of Election Commissioners as originally set up would obviously permit the Governor and the chairman of his political party to comprise a minority of the members of the State Election Board. Obviously the two-party system had become a reality at the time section 3 was amended by the 1963 act. By that time our compulsory primary law, Acts 1957 No. 205, which grew out of the two-party system, had been in operation during two elections.
It has been suggested that the term “representing the majority party” becomes meaningless unless it is interpreted as meaning member of the majority party. With this we do not agree. The term “representing the majority party” is apparently used in its common acceptation — i.e., to act on behalf of and to work with the majority party in the selection of the election judges and clerks.
Therefore we hold that section 3 of Initiated Act No. 3 of 1948 as amended by the 1963 act does not re quire tlie third member of the County Board of Election Commissioners to be either a member of the majority political party or a designee of that party. The statute only charges the third member as being a representative of the majority party.
It follows that the trial court properly dismissed appellants’ mandamus action. However, we fail to see that a different result would have been reached had appellants followed some other remedy.
Affirmed.
Brown, J. concurs.
Harris, C.J., dissents in part.
Ward, J., dissents. | [
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Conley Byrd, Justice.
W. R. Livingston, as father and next friend of Matthew Livingston, a minor, and on behalf of himself individually, appeals from a $15,000 judgment in favor of appellee Harvey J. Fuel. This suit began as an action by Livingston in behalf of his son to recover the value of a horse Fuel had killed while driving his personal ear. Fuel, alleging that he collided with the horse while exercising his duties as Chief of Police, counterclaimed and cross complained against Livingston individually and in his capacity as next friend. The appellant, for reversal, relies upon the following points:
“1. The court committed fatal error in allowing evidence that appellant had repaired and improved the pasture fence after the horse was killed.
“2. The court committed fatal error in refusing to allow appellant to cross-examine appellee Fuel about his visits to the Chicot Club.
“3. The court committed fatal error in refusing to allow appellant to cross-examine appellee Fuel about his failure to claim Workmen’s Compensation from his employer.”
In Johns v. Pomtree, Adm’r., 240 Ark. 234, 398 S.W. 2d 674 (1966), we held that subsequent precautions taken to prevent a recurrence of an injury cannot be proved to establish negligence in the first place. We hold that the trial court committed error in permitting testimony of repairs made subsequent to the injury for the purposes of showing that the pasture fence holding the horse was inadequate.
It was the appellant’s theory at the trial that Fuel was not acting in the scope of his employment with the city, but that in fact, he was on a personal mission of his own — i.e., that he was speeding to the Chicot Club rather than chasing law violators as Fuel contended. On cross-examination appellant sought to interrogate Fuel relative to his frequent visits to the club and about use of intoxicants and the gambling that had existed at the club. Appellant also sought to show that Fuel had never claimed any Workmen’s Compensation benefits for injuries resulting in the collision with the horse.
Since Fuel was driving his personal car within the city limits of Lake Village at a speed of 65 miles per hour and in a direction which would have taken him away from his home and office toward the Chicot Club, we hold that the trial court erred in sustaining the objections to the proffered testimony. Likewise, we hold that the trial court erred in not permitting appellant to show that Fuel failed to claim Workmen’s Compensation benefits. These matters were circumstances to be considered on the issue of whether Fuel was acting in the scope of his employment as Chief of Police and, of course, were material on the issue of whether Fuel was negligently speeding in his personal car.
Reversed and remanded. | [
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Conley Byrd, Justice.
Appellant, Robert H. Poore, appeals from a decree directing specific performance of an oral contract for the conveyance of timber. The trial court held that the payment of the consideration and the partial performance by appellees, Floyd Slaughter and Larry Don Slaughter,' d/b/a Slaughter & Son, was sufficient to take the oral contract out of the statute of frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962).
For:-reversal,’ Poore-contends, that the; testimony was insufficient to establish an oral contract and that there was no part performance. Since we find that the record is insufficient to establish the oral contract by clear and convincing evidence, we do not reach the issue of partial performance.
The record shows that Mr. Floyd Slaughter, a resident of Union County, on January 20, 1966, phoned Bobert H. Poore, Sr., at his home in Council Bluffs, Iowa, to buy timber on 500 acres of land owned by Poore in Union County, Arkansas. Slaughter does not contend that an agreement was reached that day, but that Poore said he would have to contact his cousin, Wesley Poore, of El Dorado, Arkansas. Slaughter testified that, following telephone conversations between appellant Poore and Wesley Poore and Slaughter, he and Poore on the 21st day of January entered into a binding contract for the purchase of all pine above eight inches and all hardwood above twelve inches except in the areas around the home place and the deer camp. According to Slaughter, the price of $4,000 was agreed upon, the time for cutting the timber was for one year from January 21, 1966, and both parties understood the area to be cut.
On January 21, 1966, Slaughter wrote to Poore:
“Enclosed you will find two copies of the timber deed; Sign and return one copy—
Also enclosed, a check for four thousand.
Appreciate getting the timber and will look •forward to meeting you in person.”
• On January 24, 1966, Slaughter commenced cutting the timber.
■ On January 26, Poore phoned Slaughter that he had received the check but not the deed. Slaughter suggested to Poore that the check be sent on through.
On January 27, Slaughter mailed' to Poore a form deed, filled in to describe the timber to be cut as “all the Pine & Hardwood timber standing, growing and being eight inches in diameter and over at the stamp ...” (Slaughter had discovered that the deed had been omitted from the January 21 transmittal through his secretary’s error.)
On January 29, Poore called Slaughter to tell him that someone was trying to buy the land from him but that the man didn’t want to buy the land without the timber. When Slaughter told Poore’ that he was a little late, because he had already started cutting, Poore told Slaughter that he had “jumped the gun.” Slaughter continued to cut the timber until he was served with a restraining order on February 18.
Poore’s version of the January 21 conversation is that he and Slaughter both knew what land was covered, but with reference to the other essential facts he testified on cross examination as follows:
“Q. Was there any doubt as to how much money he was offering you for the timber on it?
A. He offered $4,000 for it.
Q. And if you were going to deal you would accept that $4,000 if you were going to sell it to him?
A. I would accept when my attorney checked into it.
Q. If he approved the form of the timber deed?
A. If he approved the timber deed.” ■
* *
“Q. And in this conversation on the 21st, did you not agree that it was to be eight inches on the pine and twelve inches on the hardwood?
A. That seems to be the direction.
Q. That is pretty well .standard, isn’t it?
A. Yes. ...
Q. Then, all this timber deed was going to do, Mr-Poor e, all it was going to be, wasn’t it, was just a reduction of your agreement to writing, you all had agreed he was going to purchase the timber, eight inches on pine and twelve inches on hardwood on all the 500 acres, you all knew which, for four thousand dollars, and he was going to have one year from January 21st, 1966, to cut it?
A. It all depended on how my attorney looked at it.
Q. If your attorney approved- the form of', the deed?
A. If he agreed to the timber deed.
Q. But you all had agreed as to all the terms included in that deed?
A. Yes. .
Q. And all he had to do was approve the form and then you would sign- it and send it back and take the money and he would have the timber?
A. Yes, as soon as the timber deed was approved, that is what we wanted, a written agreement, a timber deed.”
In Hudspeth v. Thomas, 214 Ark. 347, 216 S.W. 2d 389 (1949), we pointed out that one seeking to take an oral contract for conveyance of land out of the statute of frauds through partial performance has the burden of proving by clear and convincing evidence both his oral contract and his partial performance thereunder. Here the proof of the oral contract is not. clear and convincing. Poore’s testimony is that he wanted the. deed to secure his attorney’s approval. It is-here that perhaps some the testimony could be read as saying that the only purpose of submitting the deed to' the attorney was tó get his approval of form only, but when such testimony is considered in the light of Poore’s conduct in holding the check until he received the deed, we do not find it to be sufficiently clear and convincing to show Poore’s assent to the alleged contract.
For the reason stated we are reversing the decree of specific performance and remanding the same to the trial court with instructions to enter an injunction and judgment for damages to which Poore is entitled. .
The record contains some evidence on the damages sustained by Poore, but under the record here presented we prefer that the matter be considered first by the chancellor.
Reversed and remanded.
Ward, Brown & Fogleman, JJ., dissent.
Lyle Brown, Justice.
The record contains the chancellor’s ‘‘Findings of Fact and Conclusions of Law.” Specifically, it was found that an oral contract was entered into on January 21 which showed a meeting of the minds on every point. Included were these items: The date was fixed on which cutting was to begin; the contract was for one year; the diameter was eight and twelve inches; the price was four thousand dollars; Slaughter was to send Poore a deed which would be corrected as required by Poore’s attorney to reflect the oral agreement; the certainty of the area of the timber conveyed was clearly understood; and, pursuant to the agreement, Slaughter sent a check and deed, entered into possession, and cut timber throughout the tract. The trial court found that Poore knew, on January 26, that Slaughter was well into the cutting opera tion. Finally, lie concluded that the reason Poore tried to rescind the contract was the receipt of what Poore considered a better offer.
I am convinced, as was the chancellor, that the execution of the deed was a mere formality which would (1) reduce the agreement to writing, which was good business, and (2) enable the transaction to be recorded. Yet it is evident to me that the sale would not have been affected if Poore had decided he would not go to the expense of revising the deed because the transaction was already complete as between the parties.
Poore and Slaughter were the only witnesses to the January 21 conversation. Naturally the credibility of these witnesses was vital. The weakness in Poore’s credibility lies in the fact that he first insisted that the discussion on January 21 never occurred! Plere is his initial version: Slaughter called Poore on January 20; the men talked only in general terms; Poore told Slaughter to send a timber deed and a check for $4000, which would prove Slaughter meant business; there was no subsequent call to him by Slaughter; the next contact was by Poore when the check arrived without the deed; and that there was no agreement of any kind as to specifics because he was waiting for the deed. The foregoing is gleaned from Poore’s discovery deposition. Then when the case was tried, Slaughter produced his telephone bill showing his having called Council Bluffs on January 21. That evidence seemed to refresh Poore’s memory and on cross-examination he conceded the conversation and the meeting of the minds on every phase of the transaction as recited by the chancellor. His one reservation was that he at no time intended to consummate the sale until his lawyer had examined and approved the deed. The evidence appears to be clear and convincing. Certainly I cannot agree that the trial court, from his vantage point, erred in so finding.
It is insisted that the majority opinion cannot stand the light shed by Harrison v. Oates, 234 Ark. 259, 351 S.W. 2d 431 (1961). The facts in Harrison, which were approved as supporting an oral sale of lands, are not nearly so clear and convincing as the facts in the case at bar.
I would affirm.
Ward and Fogleman, JJ., join in this dissent. | [
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Conley Byrd, Justice.
This is a second suit by appellant Fay L. Tuel on a disability policy issued by appellee National Central Life Insurance Company, this suit being for continuous disability benefits alleged to have accrued at the rate of $150 per month after March 22, 1967. Appellant had earlier sued appellee for benefits accruing from April 15, 1964 (the date of the accident giving rise to the disability) to March 22, 1967, which resulted in a jury verdict of $600. The sole issue here is whether the prior judgment is conclusive of the total disability issue in the present action. The trial court held that the $600 judgment was res judicata.
Part Two and Part Three of the insurance policy sued upon provide:
“Part Two —TOTAL DISABILITY CONFINEMENT BENEFITS FOR LIFE
If “such injury” as is described in the Insuring Clause, independently of all other causes, shall within twenty-four hours from and after the date of the accident render the Insured totally and continously disabled and prevented from performing any and every duty pertaining to any business, household duty, or occupation, or if a Minor, prevented from attending school or engaging in any recreational activity, but as a direct result thereof shall necessarily continuously and totally confine the Insured within doors, while requiring regular treatment therein by a legally qualified Medical or Osteopathic physician or surgeon, then the Company will pay to the Named Insured, commencing with the first treatment by a physician or surgeon, an indemnity for one day or more at the rate of One Hundred Fifty Dollars ($150.00) per month, even for life, so long as such total disability and total confinement is continuous. Benefits payable under this part are in lieu of benefits under Part One and if hospital confined, benefits under this
Part Two are payable in addition to benefits payable under Part Three.
Part Three —TOTAL DISABILITY HOSPITAL CONFINEMENT BENEFITS
If “such injury” as is described in the Insuring Clause, independently of all other causes, shall within twenty-four hours from and after the date of the accident render the insured totally and continuously disabled, and as a result thereof thereby shall necessarily continuously and totally confine the Insured within a hospital while requiring regular treatment within the hospital by a legally qualified Medical or Osteopathic physician or surgeon, then the Company will pay benefits to the Named Insured, commencing with the first treatment by a physician or surgeon, an indemnity for one day or more, resulting from any one accident, at the rate of Ten Dollars ($10.00) per day for a period not to exceed Fifty Days. Benefits payable under this Part are in lieu of benefits under Part One and shall be payable in addition to benefits payable under Part Two.”
The complaint in the prior action sought judgment from the insurer for $150 per month from April 15, 1964 through August 2, 1964, and from August 13, 1964 to the date of trial. For the period of August 2 to August 13, 1964, Mrs. Tuel sought compensation at the rate of $170 per week because she was hospitalized. The insurer’s answer admitted the issuance of the policy and denied all other matters. However, the trial court submitted three issues to the jury as follows:
“COURT’S INSTRUCTION NO. 1: If you find from a preponderance of the evidence that Mrs. Tuel sustained injuries directly and solely resulting from an automobile collision while an occupant of an automobile, and that within twenty-four hours thereafter such injuries rendered Mrs. Tuel totally and continuously disabled from April 15,1964 to the present time and rendered her unable to perform any and every household duty as explained in these instructions and that as a direct result of such injuries Mrs. Tuel has been necessarily, continuously and totally confined within doors as explained in these instructions and that as a direct result of such injuries Mrs. Tuel has required regular treatment by a qualified physician and that such disability and confinement as explained in these instructions has been continuous from the 15th day of April, 1964, to the present time, then your verdict will be for the plaintiff in the amount of $5,-290.00.”
“COURT’S INSTRUCTION NO. 2: If you find that the plaintiff has been disabled and confined as set out in these instructions but is no longer so disabled and confined as described in these instructions, then you may find for her in the amount of $150 per month for so long as you find her to be so disabled and confined as defined in these instructions.” (Emphasis ours.)
“COURT’S INSTRUCTION NO. 3: If you find that the plaintiff has not met the requirements of the policy as defined in these instructions, then you will find for the defendant.”
The jury’s verdict upon which judgment was entered read: “We, the jury, find for the plaintiff Fay L. Tuel, and assess her damages at $600.00.”
Appellant, relying upon Aetna Life Insurance Company of Connecticut v. Martin, 108 Fed. 2d 824 (1940), contends that a general verdict for less than the face amount of an insurance policy containing stipulated monthly payments while totally disabled for a certain period of time will not support a plea of res judicata when a subsequent suit is brought concerning a period of time which accrued after the time litigated in the first. In connection therewith appellant suggests that the partial jury award in the first Tuel case may have been the result of a compromise in the jury room recognized by this court in Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49 (1928), and Alexander v. Mutual Benefit Health and Accident Assn., 232 Ark. 348, 336 S.W. 2d 64 (1960).
Had the first suit been submitted to the jury solely on the issues of total disability and denial thereof as framed by the pleadings, we would be inclined to agree with appellant that a jury’s partial award would not be res judicata. However, such is not the situation here, for the jury clearly had three alternatives under the issues framed by the court’s instructions — i.e., (1) to find total disability for the full period; (2) to find that Mrs. Tuel had been totally disabled, but was no longer totally disabled; ahd (3) to find that Mrs. Tuel was not disabled at all. When the jury returned a verdict in accordance with the second theory submitted to them, we, like the trial court, can only conclude that the jury must have found that Mrs. Tuel had recovered from the disability which she sustained April 15, 1964.
It has been suggested that in determining the issue of res judicata we are limited to the pleadings filed and the judgment entered. To so hold would not only ignore Ark. Stat. Ann. § 27-1160 (Repl. 1962), which permits the trial court to consider the pleadings amended to conform to the proof, but would also be contrary to our adjudicated cases. See Carrigan v. Carrigan, 218 Ark. 398, 236 S.W. 2d 579 (1951), upholding the examination of the transcript in the former trial.
In holding the first action conclusive of the total disability issue in the second action, we do not find ourselves in disagreement with Aetna Life Insurance Co., supra. The policy here, unlike the policy in Aetna, re quires a continuous disability commencing within 24 hours after the date of the accident and the jury was so instructed. In the Aetna case, the continuous disability had only to commence before age 60 and the commencement date was unimportant to the lawsuit except as to the amount of recovery.
In Fulbright v. Phipps, supra, the verdict rendered was not consistent with any theory submitted to the jury. Here the jury’s verdict on the first trial was thoroughly consistent with the second theory submitted to them — i.e., the first verdict was in exact multiples of the $150 monthly payment. Under the circumstances we agree with the trial court that the first action was res judicata.
Affirmed. | [
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Carleton Harris, Chief Justice.
This case involves a certificate of deposit. Ray Scott of Bald Knob, Arkansas, and Ernie Gaskin were stockholders in the Americana Motel at Bald Knob. A few months after the commencement of the operation of the motel, Scott decided to sell his stock to Archie Mason for $19,-000.00. Gaskin and Mason borrowed the money from Citizens Bank of Batesville, and executed their note on June 15, 1964, for that amount, the due date being December 15, 1964. Scott guaranteed the payment of the note by executing a “Limited Guaranty Agreement,” and by assigning to the bank a certificate of deposit in the amount of $15,000.00. As the due date of the note approached, it became apparent that the note would not be paid. Gaskin, by telephone, contacted Scott, who was then living in Valdosta, Georgia. On December 19, the bank wrote Scott, and, according to appellant’s contention, sent a new limited guaranty agreement for execution, the purpose being to guarantee a six months ’ extension of the June 15, 1964, note. Appellee contends that the new guaranty agreement was for the pur pose of guaranteeing a new note to be executed by Gas-kin and T. B. Jackson in lieu of the Gaskin-Mason note. This instrument was not dated when received by Scott, and the space for the indentity of the co-signer of the note was also blank. The agreement did however refer to the note dated June 15, 1964. Scott dated all copies, signed, kept one copy and returned the other two to appellee. Thereafter, apparently about January 28, 1965, the bank relinquished the Gaskin-Mason note to Mason, and accepted a new note from Gaskin and T. B. Jackson. Scott contends that he knew nothing about this substitution of Jackson for Mason until the summer of 1965.
The Gaskin-Jackson note became due on June 16, 1965, was not paid, and on July 26, 1965, the bank accepted a payment of $2,000.00 and interest; no court proceedings were instituted, and another payment with interest was accepted on March 19, 1966. Scott contends that in the first instance, the note due in June, 1965, was extended to January, 1966, and that the note was subsequently extended to June 15, 1966. It is his contention that both extensions were without notice or without his consent. On July 1, 1966, the bank applied Scott’s certificate of deposit to the Gaskin-Jackson note. Appellant had made a demand for the certificate, and upon being refused, instituted suit against the bank in the Circuit Court of Independence County. The bank in its answer sought reformation of the second guaranty agreement, contending that a scrivener’s error had occurred in preparing this instrument with reference to the June 15, 1964, date; that the agreement actually referred to the subsequent note executed by Gaskin and Jackson on January 28, 1965. The case was tried by the Independence Chancery Court, to which it had been transferred by the Circuit Court, and from an adverse decree, appellant brings this appeal. For reversal, it is first asserted that the court erred in granting reformation of the second limited guaranty agreement dated December 15, 1964, so as to apply to the note of Gaskin and Jackson of January, 1965. This is the most important point in the litigation, and the controlling one.
Appellant’s argument is that he was sent the second guaranty agreement while residing at Valdosta, Georgia, and that he thought he was agreeing to extend the Gaskin-Mason note until June, 1965. This agrument is supported by the heretofore mentioned fact that the instrument referred to the note (which had been signed by Gaskin and Mason) of June 15, 1964. This is typed into the instrument, and Scott left all the blanks intact, except that he filled in the date of the agreement between himself and the bank as December 15, 1964. Scott asserts that he did not know about a new note signed by Gaskin and Jackson until the summer of 1965, and after his return to Arkansas. In fact, he testified that he had never heard of T. B. Jackson until after returning to this state.
Manual Conyers, Executive Vice-President of Citizens Bank, testified that he was the bank official who handled this particular transaction, and he stated that the reference to the note of June 15, 1964, was a scrivener’s error; that the date should have been January 28, 1965, the date of the new note. The witness said that he did not know how the error occurred, though it appeared most likely that the mistake was made by an employee of the bank. This alleged error was the basis for the bank’s prayer for reformation of the instrument. Mr. Conyers also testified that Scott knew that Mason would no longer be “on the note,” and that instead, Jackson would execute the new note; however, he was unable to state how he knew this fact to be true, or pinpoint just when Scott received that information from him. The witness said that he had some telephone conversations with Scott, but he finally stated that he did not know when Scott received the information. The testimony of the witness is not at all positive; indeed, to the contrary, the portion relating to whether Scott knew of the change in note signers is rather notable for uncertainty, and if this were the sum total of the testimony, a different result might well be in order.
However, testimony developed during the examination of Scott is entirely in conflict with appellant’s assertions. On cross-examination, counsel for appellee asked if appellant recalled the taking of his (appellant’s) discovery deposition, at which time certain questions and answers were given. The witness replied that he did remember. Thereafter, the record reflects the following:
“Q. And you stated at that time, and correct me if I am wrong, that this originally was a matter of Mason and Gaskin; and, now, Mason had got out, and you said, ‘and Jackson has come in.’ That is right?
A. Yes, sir; at that time, I didn’t know exactly what the date was at this time.
Q. Now I asked you this question: This certificate of deposit for $15,000.00 was placed as security for the payment by Jackson and Gas-kin? And you answered: Yes, sir, just guaranteeing the loan that they secured from the Bank.
A. That was a mistake; it should have been ‘Mason;’ Jackson wasn’t even in it; I didn’t know anything about that until later in .’65.
* * *
Q. At the time of the discovery deposition, I asked you particularly what your objection was to paying this, and I believe you said that they extended time to Gaskin and Jackson.
A. Well, that was a mistake; it should have been Mason.
Q. I handed you that particular note of Gaskin and Jackson and asked if that is the note which you guaranteed with the deposit. And you answered: Of course this note here was guaranteed when I was in Georgia, I imagine, with Jackson on here; it was probably sent to Gas-kin; I don’t know. See, this particular one, I was probably in Georgia when Jackson signed it; so I wasn’t in Arkansas at this time; but the $19,000.00 was the note that I had the CD on. Was that your answer then?
A. This was still a mistake on the names.”
Subsequently, during the trial of the case, Scott was called as an adverse witness. Counsel recalled to the witness that he had asked Scott (during the taking of the deposition) how appellant became involved in the matter. He was then asked about the following answers given at that time.
“Well, when I sold my part out to Mason.
Question. Sold your part of what?
Answer. The motel in Bald Knob; and I guaranteed with a certificate of deposit of $15,000.00 to cover the part they borrowed.
Then Mr. Bennett asked you:
Question. The part they borrowed; and who are ‘they?’
Answer. Mason and Gaskin.
Question. Well, now Mason has gone out of this, and I believe this is----
Then you interrupted:
And Jackson has come in, that’s right.
Do you remember answering that?
A. Well, I am sure I did if it is on there.
Q. I am asking you again if these are correct statements; remember, please, you were under oath at the time:
Question. This certificate of deposit for $15,000.00 was placed as a security for the payment by Jackson and Gaskin?
Answer. Yes, sir, just guaranteeing the loan that they secured from the Bank.
And Mr. Bennett had just before handed you this limited guaranty agreement when you answered that question.
Question. All right. Now what did you understand that guarantee to imply or to mean?
Did you answer:
Well, to be paid within 6 months with my signature guaranteeing an extension.
Question. Now extension of what?
Answer. Well, the extension of the loan, if we wanted to.
Question. Now did you understand that if Jackson and Gaskin did not pay the Bank according to their note that your certificate of deposit would be applied to pay the note?
Objection by Mr. Tedder: The agreement speaks for itself.
Question by Mr. Bennett: Well, now he has his objection of note. If you can answer it, answer it.
Answer. No answer.
Question. Let me phrase it this way.
No other question.
Answer. Well, on the agreement, of course, Gaskin and Jackson at 6 months has to pay the $19,-000.00 ; if it is renewed for 6 months, I have to give my signature of the extension myself.
Question. Did you make those statements?
A. Yes, sir, if that’s on----
Q. Were those true statements?
A. I don’t think so.”
Counsel subsequently asked Scott about his understanding of what would happen if no extensions were made. Appellant had answered: “That the bank would file against Gaskin and Jackson to collect.” At the instant trial, Scott said: “It still should have been Mason. ’ ’
It will be observed that the name “Jackson” does not come into the record just once or twice, in which event it would be possible that Scott could have overlooked the name “Jackson” being used instead of “Mason;” actually, Scott mentioned the name “Jackson” himself.
A letter appears in the record from Scott’s attorney in January, 1966, the status of the Gaskin-Jackson note being the subject matter of the letter. Appellant also admitted this circumstance. From the record:
“Q. And during that time that Mr. Murphy was representing you, did he not write you from time to time about Mr. Jackson?
A. Yes, sir.”
We think this testimony by Scott is clear, convincing and decisive evidence that he was fully aware of the fact that Jackson had been substituted in the new note for Mason. Relative to this evidence, appellant simply reiterated, “That was a mistake.”
Scott testified that he did not learn about the substitution of names until he returned to Arkansas in the summer of 1965. This being true, it is difficult to understand why appellee did not institute a suit at that time, instead of waiting a year. Logic dictates that one normally would take action immediately, or within a short time after learning that he had been misled, and was being held responsible for the debt of a person he did not even know.
At any rate, we are of the opinion that the testimony quoted from the record also answers appellant’s argument relative to reformation. Since we have concluded that the Chancellor was justified in holding that the second guaranty agreement was executed by Scott Avith full knowledge that a new note was to be made and signed by Jackson, it follows that appellant would likeAvise have known that the date of the note mentioned in this guaranty agreement was a mistake. In other words, the first holding controls the second. The fact that the second note had not been executed at the time of the signing of the guaranty agreement is of no effect if Scott was aware of the purpose of the guaranty agreement (Avhich the trial court found was signed by appellant as a matter of guaranteeing the Jackson note).
It is argued that the court erred in its decree, because the guarantor did not agree to the last extensions of the note. In the first place, we are inclined to agree Avith the bank’s contention that no extension was granted ; rather, it appears that the bank was simply holding a past due note. Scott testified that all extensions granted were in writing. The record reveals only one writing relating to this argument. A letter was di rented to Scott from Conyers on March 22, 1966, as follows :
“Dear Ray:
Enclosed you will find our check for $600.00 which is for interest earned by your $15,000.00 CD up to June 15th last year. We are glad to be in a position to release this to you.
Ray, regarding the balance, their note is still past due since January as far as our records are concerned. However, I did promise them we would take no legal action to collect before June 15th and with the $2,510.00 paid I think that was a good bargain for all of us.
Peel free to call or come over any time you think we can be of help.”
This letter does not appear to be an actual extension. 10 C.J.S. Bills and Notes §263 (1938) defines the term “extension” as follows:
“ ‘Extension’ of time of payment means a valid and binding agreement to delay the enforcement of the instrument.”
See also Stone and McDonald v. State Bank, 8 Ark. 141, wherein we recognized a distinction between granting an extension, and simply failing to institute suit.
It is also true that there, must be consideration to extend a note. Holmes v. Thompson, 240 Ark. 818, 402 S.W. 2d 400, and cases cited therein. Not only do we find no evidence of a written extension, but likewise, we find no testimony indicating that a valid consideration was.paid for any alleged extension. Holmes v. Thompson, supra, holds that a payment of interest which is past due is not sufficient consideration for a supplementary contract.
Finally, it is urged that the agreement is not binding upon appellant, because no representative of the bank signed the agreement. A sufficient answer to this argument is that both parties acted under and in accordance with the agreement. The proof reflects that the hank deducted the interest due on the Gaskin-Jackson note before sending the balance of interest on the certificate of deposit to Scott. Scott testified that the first interest check that he received on the certificate of deposit was for $600.00, hut he admitted that in July of 1966 he received only $229.00. From the record on cross-examination:
“Q. Do you know why you received only two hundred, twenty-nine?
A. It was subtracted from the interest that Gas-kin was supposed to pay is what I presume, now. It was the difference is what I think; I think that is where it come from. We have letters on it; I think that is where it come from.
Q. I see. The interest from your CD was used to pay the interest on this note, and they sent you the balance; is that correct?
A. What was coming back to me, that is what they sent me.
Q. Coming back to you from what?
A. From the certificate of deposit, I imagine. We have the records, receipts and everything on it.
Q. Coming hack to you from the certificate of deposit after something had been deducted. What was deducted?
A. I don’t know.
Q. Well, I will hand you this letter and maybe it will refresh your memory.
# # #
A. This is interest the CD earned; all right. The note earned $405;16, and a check was sent to me, $229.42.
Q. So they deducted something from your CD earnings f
A. Yes, sir.
Q. And what was that!
A. That was interest on the CD.”
The letter from Conyers to Scott, referred to in the above testimony, states:
“We are deducting the interest the GaskinJackson note earned from the interest your certificate of deposit earned and are enclosing our check for the difference.
Int. your C.D. earned $634.58
Int. Gaskin & Jackson note earned 405.16
Our check enclosed 229.42”
Accordingly, it seems clear enough that Scott knew that a large part of his interest check was being used to pay the interest on the Gaskin-Jacks on note, and it is also interesting to note that when he- subsequently filed his complaint against the hank -for $15,000.00 (representing the amount he contended to he due under the certificate of deposit) his prayer for relief did not include a return of his $405.16.
Summarizing, we think the evidence, particularly the actions and testimony of Scott, justified the Chancellor in holding that Scott was aware that a new note was being executed, with the substitution of Jackson for Mason, and, under this evidence, there was no error in decreeing reformation of the contract.
Affirmed.
Ward, J., not participating. | [
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Paul Ward, Justice.
This litigation is between Ivan C. Wright (appellant), a landlord, and Jarold Hulett (appellee), a lessee. The background facts, set out below, are not contested.
On November 15, 1966 appellant filed a complaint in chancery court alleging he had leased certain lands to appellee for the year 1966; that appellee planted 250 acres in beans and 20 acres in milo maize; that appellee agreed to pay, as rent, ^th of all crops — free from harvesting costs — and also agreed to harvest said crops at maturity. It was further alleged that appellee failed to harvest said crops at maturity, and that he owed $500 for money advanced for planting and cultivation. Ap pellant’s prayer was that he be allowed to enter and harvest the crops; that he be given judgment for cost of harvesting and also for the $500 advanced.
On motion by appellee the cause was transferred to the circuit court — without objections — and, on January 18, 1967 appellant filed therein an “amended and substituted complaint”, making substantially the same allegations as previously made and asking judgment for the $500 and $908 for damages to the crops. The above allegations were denied by appellee in his answer.
A jury trial was had and, on December 18, 1967, a verdict (and judgment) was entered in favor of appellee, and this appeal follows.
Seeking a reversal, appellant relies on only one point: The court erred in refusing to allow appellant to introduce in evidence his complaint filed in the chancery court.
It is our conclusion that the trial court did not commit reversible error. In the first place, appellant had a right to testify concerning the subject matter in the original complaint, and he did, in fact, so testify. Consequently it is difficult to understand how he has been prejudiced by the court’s ruling.
Moreover, it appears that the trial court would have erred had it allowed the complaint (in the chancery court) to be introduced in evidence. In 29 Am. Jur. 2d, EVIDENCE, § 703, we find this statement:
“In accord with the general rule in respect of self-serving declarations, a self-serving statement or allegation in a pleading, such as a bill in equity, or a petition or complaint, or an answer in an action at law, is inadmissible in behalf of the pleader, in the action in which it is filed, against his opponent or a codefendant, and also inadmissible in behalf of the pleader against such persons and any other person in a subsequent proceeding.”
To the same effect see 1ALR, page 84.
In The Henry Wrape Company v. Barrentine, 129 Ark. 111 (p. 115), 195 S.W. 27, where an effort was made to introduce in evidence the complaint in the original case, we find the following statement:
“We have never gone any further than to permit the use of pleadings between the same parties in other cases for the purpose of contradicting the party signing the pleadings when he takes the stand as a witness, or as admissions by him against interest.”
Likewise, in Hill v. Talbert, 210 Ark. 866 (p. 871) 197 S.W. 2d 942, this Court quoted from 31 C. J. S. page 948 § 216 the following:
“Generally a party cannot make evidence for himself by his own declarations, and it is a well-established general rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in evidence in his favor.”
Finding no reversible error the judgment of the trial court is hereby affirmed.
Affirmed. | [
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ELANA CUNNINGHAM WILLS, Justice.
liThis case is the second appeal originating from the divorce proceedings involving appellant Christopher Roberts and appel-lee Robin Yang. The supreme court accepted certification of the case from the court of appeals under Ark. Sup.Ct. R. 1-2(a)(7), because it was a subsequent appeal to a case then pending in this court.
Roberts and Yang were divorced by decree on July 2, 2007. The divorce decree included the following findings:
2. The matters stated in the plaintiffs Second Amended Complaint have been established by her testimony, and she is hereby granted an absolute divorce from the defendant on grounds of eighteen months continued separation without cohabitation. The parties were married on August 23, 1997 and they have been separated since on or before December 2, 2005. The plaintiffs witness, Kaye Lundgren, verified the plaintiffs residence in this county and state for the requisite periods of time, and her separation from the defendant for more than eighteen months.
4. The parties’ financial accounts and investments listed on Plaintiffs Exhibit 5 shall be valued as of June 4, 2007 and divided equally between the parties in kind or by | ^equalizing the values of the accounts and investments.
5. The parties’ retirement funds listed on Plaintiffs Exhibit 5 shall be valued as of June 4, 2007 and divided equally between the parties in kind or by equalizing the values of the funds; except, the defendant’s APERS pension plan is not vested and is not subject to division.
7. The parties’ jointly owned real property including their marital residence ... shall be listed for sale forthwith by a realtor chosen by mutual agreement of the parties. The parties shall follow the realtor’s recommendations regarding the listing price and the terms of the sale. The net proceeds of the sale, after payment of realtor’s fees and closing costs, shall be divided equally between the parties. Each party shall pay one-half of the costs of any repairs which are necessary to market the property.
Roberts appealed from the divorce decree to the court of appeals. In his first point for reversal, Roberts argued that the trial court lacked jurisdiction to enter the decree because Yang failed to meet and prove Arkansas residency requirements. Second, he argued that the trial court erred under Ark.Code Ann. § 9-12-315(a)(3)(B) (Repl.2008), by ordering that the marital home be sold privately by a realtor. The court of appeals affirmed the divorce decree in Roberts v. Yang, 102 Ark.App. 384, 285 S.W.3d 689 (2008). After granting Roberts’s petition for review, this court also affirmed the divorce decree, holding that (1) Yang met and proved Arkansas residency requirements preceding the final judgment of divorce; and (2) Roberts failed to preserve his argument concerning the sale of the marital home for appellate review. Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886.
After Roberts filed his notice of appeal from the divorce decree and while that appeal |swas still pending, Yang filed a motion for contempt on October 1, 2007, asserting that Roberts “willfully failed and refused to cooperate” with the division of the parties’ accounts and real property as ordered by the trial court in the divorce decree. The trial court filed a show cause order on October 1, 2007; the hearing on Yang’s contempt motion was held on October 15, 2007. Roberts filed a response the same day of the contempt hearing, denying his failure to cooperate in the division of the accounts and stating in part that
[o]nce the Plaintiff stops withholding information and discloses the sale price of our company! ], the figures in the draft Plaintiffs Exhibit 5, copies of her tax returns, all business e-mails since November 2005, and all other documents previously requested, then a figure may be estimated.
Roberts appeared pro se at the hearing. When asked by Yang’s counsel what steps he had taken to implement the requirements of the divorce decree, Roberts stated that he “requested a copy of Plaintiffs Exhibit 5 so that it could be corrected, which I have not received until just now.” The trial judge, however, took judicial notice that Plaintiffs Exhibit 5 — listing the parties’ accounts and assets — was the same Plaintiffs Exhibit 5 that Yang previously introduced in the original divorce trial.
On October 16, 2007, the day after the hearing, the trial court addressed Yang’s contempt motion in its second order. The order stated that the trial court would “withhold a finding of contempt and imposition of sanctions against [Roberts] pending his compliance with the terms of this order,” and divided the parties’ accounts as follows:
2. The values of the parties’ bank accounts and investments listed on Plaintiffs Exhibit 5 shall be equalized and divided forthwith by [Yang] paying to [Roberts] the cash sum of $16,760.98. Each party shall retain the accounts and investments in their respective |4names, and [Roberts] shall retain the parties’ EE and I series savings bonds.
3. The values of the parties’ retirement funds listed on Plaintiffs Exhibit 5 shall be equalized and divided forthwith by [Roberts] transferring from his rollover IRA or ROTH IRA to an IRA designated by [Yang] the amount of $9,284.67. Each party shall retain the retirement accounts in their respective names.
Roberts filed a notice of appeal from the trial court’s ruling on Yang’s contempt motion on November 24, 2007. Because of deficiencies in Roberts’s abstract and addendum, the court of appeals ordered re-briefing. Upon resubmission, the court of appeals held the case pending our resolution of Roberts’s first appeal. This court subsequently accepted certification of this case under Ark. Sup.Ct. R. l-2(a)(7), which provides that the supreme court has jurisdiction over “[sjecond or subsequent appeals following an appeal which has been decided in the Supreme Court.”
Roberts brings one point on appeal, arguing that the trial court erred in its October 16, 2007 order by “dividing and distributing the parties’ assets without determining their value as of the time of the divorce decree.” Divorce cases are reviewed de novo by the appellate court. Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). With respect to the division of property, the trial court’s findings of fact will be affirmed unless they are clearly erroneous, or against the preponderance of the evidence; the division of property itself is also reviewed and the same standard applies. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. In order to demonstrate that the trial court’s ruling was | ^erroneous, the appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id. The appellate court gives due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Id.
Roberts specifically argues that Ark. Code Ann. § 9-12-315(a) requires that marital property be divided at the time a divorce, is granted; therefore, the trial court erred in its October-16, 2007 order when it “changed it[s] course and divided the parties’ accounts and funds based on values as of dates other than June 4, 2007,” the date of the divorce trial. In response, Yang asserts that (1) Roberts raises this issue for the first time on appeal, because he failed to argue at the divorce trial or at the contempt hearing that the parties’ accounts should be divided at the time a divorce decree is entered; (2) the law of the case doctrine bars consideration of this appeal,, because the first appeal was conclusive to every question of law or fact that was decided or could have been decided, but was not presented in the first appeal; (3) the accounts were equally divided based on values presented by Yang in Plaintiffs Exhibit 5 and Roberts failed to present any alternative values of the accounts; (4) Roberts has not demonstrated that he was prejudiced by the trial court’s October 16, 2007 order.
We agree that Roberts raises for the first time his argument that the trial court erred by failing to value and divide the accounts at issue at the time of the divorce decree as required by Ark.Code Ann. § 9-12-315. We therefore affirm the trial court’s second order.
At the October 15, 2007 contempt hearing, Roberts testified only that Plaintiffs | ^Exhibit 5 failed to show “all assets,” and that the “numbers on Plaintiffs [Exhibit] 5 are not right.” During cross-examination at the June divorce trial, Roberts testified that there were a “few errors” on Plaintiffs Exhibit 5, claiming it erroneously listed his nonvested pension at his current salary; failed to separately list EE and I series savings bonds and show the bonds’ liquidated values; and inflated the value of the marital home. Thus, at both the divorce trial and the contempt hearing, Roberts failed to specifically challenge the valuation dates of the parties’ accounts. In Roberts’s first appeal, this court stated that “it is incumbent upon the parties to raise arguments initially to the circuit court and to give that court an opportunity to consider them.... Otherwise, we would be placed in the position of reversing a circuit court for reasons not addressed by that court.” Roberts v. Roberts, 2009 Ark. 567, at 8, 349 S.W.3d 886, 891. Accordingly, Roberts failed to preserve his argument for appellate review.
Further, Roberts did not introduce any evidence of his own on which the trial court might have based a valuation. Roberts asserts that he provided an alternative accounting or valuation of the parties’ accounts via a letter he mailed to the trial judge that included his “Amended Draft Plaintiffs Exhibit 5-Assets Only.” This letter was apparently received by the trial court a week after the “Second Order” was filed, thus the trial court never had an opportunity to rule on it. Additionally, Roberts mailed a letter, not a motion, nor can it be construed as a motion. Simply stated, Roberts had multiple opportunities to make specific objections to the valuation dates of the parties’ accounts, or present his alternative, amended Plaintiffs Exhibit 5 to the trial court: at the original divorce trial, in his response to Yang’s 17motion for contempt, and at the contempt hearing. As this court stated in Jones v. Jones, 320 Ark. 449, 453, 898 S.W.2d 23, 25 (1995), “De novo review does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below, and that opportunity was not seized.”
Affirmed.
. The trial court admitted Yang’s Plaintiff's Exhibit 5 — entitled "Marital Assets” — without objection at the parties’ June 4, 2007 divorce trial. The exhibit lists the parties' financial and retirement accounts, along with their values at various dates.
. These amounts reflect the trial court’s equalization of the figures listed in Plaintiff’s Exhibit 5. | [
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JIM GUNTER, Justice.
| TAppellant appeals his conviction for capital murder and argues that the circuit court erred in denying his motion for directed verdict because the State failed to sufficiently corroborate the testimony of his alleged accomplice. Because this is a criminal appeal in which life imprisonment has been imposed, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1 — 2(a)(2). We affirm.
In an amended felony information filed June 27, 2008, appellant was charged with, inter alia, the crime of capital murder in the death of Odilon Guerrero. A jury trial was held on March 2, 2010, at which the following pertinent testimony was presented.
Officer Takeisha Gilbert, a member of the Little Rock Police Department, testified that on the night of October 31, 2007, she responded to a shooting at a mobile home park. She testified that she observed Mr. Guerrero lying on the ground next to a red SUV and that Rhe was deceased. Gilbert testified that other men that were at the park described a dark four-door vehicle, possibly a black Honda, that may have been involved. She testified that one of the witnesses saw three males in the vehicle and that he saw the vehicle enter the park behind Mr. Guerrero’s vehicle, heard one shot, and then saw the vehicle exit the park.
Gregorio Guerrero testified that he lived at the same mobile home park as the victim, who was his uncle. He testified that on the night of October 31, 2007, while on his way home from work, he saw his uncle using a pay phone on Baseline Road. Guerrero testified that he was standing near the entrance of the mobile home park a short time later when he saw his uncle drive through, and that he saw another vehicle enter the park behind his uncle. He testified that the vehicle was black and looked like a Honda Accord or Acura. He testified that he saw three people in the car, two people in the front and one person in the back. He testified that approximately one minute after his uncle drove through, he heard a shot, but he thought it was someone firing a gun in an adjacent mobile home park. He testified that approximately one minute later, he saw the black vehicle exit the park at a normal speed. He explained that his uncle’s roommates then called him and told him to come that way because his uncle was on the ground. Guerrero testified that he ran to his uncle’s mobile home and saw him lying on the ground next to his SUV. He also testified that his uncle always carried cash, that his wallet was missing, and that the wallet had never been found.
Officer Matt Thomas testified that the night of November 4, 2007, another officer, Officer Jonathan Prater, was riding with him. He testified that at approximately 10:05 p.m., |she saw a black Mazda 626 without its headlights on traveling westbound on Baseline Road. He explained that there were three people in'the car: the driver, later identified as Tyeiska Roberson; the front passenger, later identified as Terry Cook; and the back seat passenger, later identified as appellant. Thomas testified that he initiated a traffic stop and, as the Mazda came to a stop, the back seat passenger got out of the car and fled on foot. He testified that Officer Prater pursued the suspect and that they ran into a storm drainage ditch. He explained that the suspect then ran into a culvert, but he and Officer Prater did not pursue him further because Officer Prater had observed a gun in the suspect’s possession. Thomas testified that the suspect was wearing a black jacket and a red undershirt.
Thomas explained that he and Officer Prater returned to the Mazda and made contact with Roberson and Cook. He testified that, in the Mazda, he found a purse and cell phone belonging to Guadalupe Ortiz, who had been robbed at gunpoint that same night. Thomas testified that he heard over the radio that the suspect had been spotted by other officers and chased to an Exxon station, where he got into a black Chevrolet Lumina and fled the scene. He testified that the Lumina was later recovered at appellant’s residence.
Officer Jonathan Prater testified that when the Mazda stopped, the back passenger exited the vehicle and looked back toward the officers as he began running. Prater testified that he was able to get a look at the suspect’s face when he looked toward the officers’ vehicle and that the suspect was wearing a red shirt and a black jacket. Prater testified that he chased the suspect through a ditch and noticed a silver-plated handgun in the suspect’s hand. Prater identified appellant as the person who fled from him that night.
|4Officer Greg Quiller testified that on November 4, 2007, he received a call to assist in establishing a perimeter in response to a fleeing suspect. Quiller testified that he responded and, while patrolling the area with Officer Jacob Passman, he observed a person, who he identified as appellant, come out of a culvert. He testified that appellant ran away from him and Officer Passman and that he observed appellant drop a black jacket while running. Quiller testified that he and Officer Pass-man chased appellant to an Exxon station, where appellant drove away in a vehicle. He testified that he radioed in what had happened and that another officer, Officer Hawkins, came around the corner in his vehicle and pursued appellant. Quiller testified that he and Officer Passman retraced their steps and retrieved the jacket, in which they found a semi-automatic chrome handgun.
Officer Jacob Passman also testified that he saw appellant come out of a hole in the fence, drop something, and start to walk away. Passman testified that he drew his weapon and gave appellant verbal commands to get on the ground, but that appellant began running towards the Exxon station. He testified that he chased appellant to the Exxon station and saw appellant jump into a big vehicle. Pass-man testified that the driver’s side door of the vehicle was open, and that he grabbed the door and looked in. He testified that appellant drove away from the Exxon Station with Officer Hawkins in pursuit. Passman testified that he and Officer Quil-ler found a Jimenez nine millimeter in the pocket of the black jacket dropped by appellant.
Officer Kendrick Hawkins testified that on November 4, 2007, while responding to |fia radio call that a suspect had been located, he observed Officers Quiller and Pass-man chasing the fleeing suspect, and that when they approached the Exxon station, the suspect got into a vehicle that was parked at the gas pumps. Hawkins testified that he pursued the suspect and that he observed the suspect stop in front of a house and run behind the house, where Hawkins lost sight of him. Hawkins identified the suspect as appellant.
Detective Bobby Martin testified that he investigated a series of robberies and a homicide that occurred around October 31, 2007. He testified that he investigated the robbery of Andres Montoya, which occurred on October 27, 2007; the homicide and robbery of Odilon Guerrero, which occurred on October 31, 2007; and the aggravated robbery of Guadalupe Ortiz, which occurred on November 4, 2007. Martin testified that after appellant was identified as a suspect, a warrant was issued for his arrest and he was later brought into custody.
Deputy Brent Broshow with the United States Marshals testified that he participated in the arrest of appellant in Herrin, Illinois, on December 4, 2007. He testified that federal officers in Arkansas had received some leads about appellant being in Illinois and that an unlawful flight to avoid prosecution warrant had been issued. Broshow testified that appellant surrendered himself after the apartment he was in was surrounded by authorities.
Andres Montoya testified that on October 27, 2007, he went to a store on Baseline Road near his home to get some groceries. He testified that when he returned home, parked in his driveway, and got out of his truck, someone approached him from behind and put a |figun to his head. He testified that he turned around and saw that it was a man wearing a ski mask. He explained that the robber attempted to retrieve his wallet from his left front pocket, but that the robber’s hand became stuck in the pocket. Montoya testified that he began wrestling with the robber for the gun and that, during the struggle, the gun went off once or twice. He testified that he and the man wrestled to the ground, where the robber was able to break loose with Montoya’s wallet and escape. Montoya testified that, while the robbery was occurring, he saw another man standing behind his truck, close to the street, and that he also heard a girl yelling, “Let’s go!”
Tyeiska Roberson testified that she had been arrested in 2008 and that she was also charged with capital murder in the death of Mr. Guerrero. She testified that there had been no promises or incentives offered by the State in exchange for her testimony. She testified that in the fall of 2007 she was nineteen years old and drove a black Mazda 626. She explained that on the night of October 27, 2007, appellant asked her to take him to make a drug sale, and that he and another man got in her car. She testified that he told her where to drive and that she stopped in front of a house, but that there was a bush in front of the house preventing her from seeing the house. She explained that appellant and the other man got out of the car, and about five seconds later, she heard a gunshot. She testified that she yelled at appellant to come on if he wanted a ride, and that he and the other man returned to the car. She testified that she did not ask what had happened because she did not want to be involved.
Roberson testified that four days later, on October 31, 2007, she was with her brother, |7Terry Cook, who knew appellant. She testified that they picked up appellant in her car and asked him for some weed. She stated that appellant responded that he did not have any but knew where to get some. Roberson testified that appellant told her to follow a burgundy vehicle, which she did, and that they followed the vehicle into a mobile home park. She testified that after she stopped the car, appellant and her brother got out of the car, and a few seconds later, she heard a gunshot. She explained that appellant and her brother returned to the car and that appellant put a gun to her head and told her to drive and not say anything. She testified that appellant warned her not to say anything about it or he would do something to her or her family.
Roberson testified that on November 4, 2007, she was again with her brother when they saw appellant at a gas station. She stated that he asked her for a ride, and she said no, but that he then raised up his shirt to show his gun, so she gave him a ride because she was scared. She testified that when appellant got in her car, he had a black backpack with him, which was later identified as belonging to Guadalupe Ortiz. She testified that shortly after he got in the car, they were pulled over by the police and that appellant fled from the car and left a phone and the backpack in her car. She testified that she told the police appellant’s name the night she was pulled over. She explained that in later interviews with police, she told them she was with her brother and appellant the night that Mr. Guerrero was killed and that her brother had the gun. She testified that she said it was her brother who had the gun because appellant had threatened her.
When shown a letter allegedly written to appellant after his arrest and while she and |sappellant were both in prison, Roberson denied that she had written to appellant and denied writing the letter. In the letter, Roberson allegedly explained that her lawyer had informed her that the State was going to offer her boot camp. Ron Davis, Roberson’s attorney, testified that he was- not familiar with the letter in question. He also testified that no offer, involving boot camp or otherwise, had been made to his client in exchange for her testimony.
Butch Lender, a forensic firearms and tool mark examiner, testified that he received a Jimenez Arms JA-9 semi-automatic pistol from the Little Rock Police Department, and that he also received a bullet from the medical examiner that came from the body of Odilon Guerrero. He testified that he was able to determine that the bullet from Mr. Guerrero’s body was fired from that firearm.
Dr. Charles Kokes, the State’s chief medical examiner, testified that he recovered a bullet from Mr. Guerrero’s body and forwarded it to the firearm and tool marks examiner. He testified that the bullet had entered Mr. Guerrero’s body through the junction of the first rib and the cartilage of the first rib, gone through the soft tissues of the upper chest, and passed through the arch of his aorta. He explained that the aorta is a major artery coming out of the heart and that an injury like Mr. Guerrero’s would cause a person to bleed to death in a matter of minutes.
At the close of the State’s case, the defense made a motion for directed verdict, arguing that the State had failed to present any evidence connecting appellant to the murder of Mr. Guerrero other than the testimony of Tyeiska Roberson, who the defense asserted was not | credible. The court agreed that the testimony of Roberson alone would not be sufficient, but the court found that her testimony had been sufficiently corroborated and specifically noted appellant’s possession of the firearm that had been identified as the murder weapon.
For the defense, Nicole Swopes testified that on the night of October 31, 2007, appellant had been trick or treating with her, her husband, her children, and appellant’s children. She testified that they returned to her house around 9:00 that evening and played dominoes until 10:00, when she went to bed. She explained that appellant and her husband continued to play dominoes, and that when she awoke the next morning, appellant was still at her house. Swopes also testified that appel lant had been in a ear wreck in March 2007 and had to use crutches, and that the wreck was still affecting him on Halloween because he could not walk fast.
After the close of all the evidence, the jury returned a verdict of guilty on the charge of capital murder and the use of a firearm in the commission of the offense. A sentencing hearing was held on March 9, 2010, at which the defense asked for a mistrial because Tyeiska Roberson’s trial on the capital-murder charge had been delayed two and a half years while she testified in other trials and because the defense had presented evidence that her attorney had mentioned she may be receiving boot camp. The State asserted that the defense had a fair and adequate opportunity to cross-examine Roberson regarding any deals and that there was no basis for a mistrial. The court denied the motion for mistrial and sentenced appellant to life in prison without the possibility of parole and an additional ten years for the firearm |10enhancement, to run consecutively. A judgment and commitment order to this effect was entered on March 12, 2010.
On April 6, 2010, appellant filed a notice of appeal. Also on April 6, appellant filed a motion for new trial, alleging that Tyeis-ka Roberson had committed perjury. Specifically, appellant asserted that he now had a handwriting expert-that would testify that Roberson did write the letter that mentioned a boot camp offer. The State responded that Roberson had not knowingly made a false statement under oath and that Roberson had been confused by the questions asked by defense counsel at trial. The State explained that the letter had been written by Roberson but sent to Robert Davis, Roberson’s former boyfriend, and not appellant, and that the letter only explained Roberson’s attorney’s plan to possibly ask for boot camp and not any offer that had been made by the State.-
A hearing on the motion for new trial was held on April 30, 2010. At the hearing, Roberson testified that she did write the letter in question. She explained that she had denied writing it because she was asked if she had written it to appellant, and she did not write it to him. She testified that she recognized her handwriting in the letter now but did not recognize it when she testified at trial. She testified that the letter was sent to Robert Davis and that the letter looked like it had been altered or changed. She also reiterated that the State had not made any offers of leniency in exchange for her testimony.
On May 3, 2010, the court issued an order denying the motion for new trial. In its order, the court found that Roberson had lied at trial about authoring the letter, but that even |nif she had testified truthfully about the letter, it would not have changed the outcome of the trial. The letter did mention a potential sentence for Roberson, but it was a sentence that her attorney believed he could get the State to agree to, not one the State had agreed to or even offered. On May 4, 2010, appellant filed a notice of appeal from the denial of his motion for new trial.
On appeal, appellant asserts that the circuit court erred in denying his motion for directed verdict. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008). In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character that-it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based upon the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” Ark.Code Ann. § 16-89-lll(e)(l)(A) (Repl. 2005). Furthermore, “corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark.Code Ann. § 16-89-111(e)(1)(B) (Repl.2005). It must be evidence of a substantive nature since it must be directed toward proving the connection of |12the accused with a crime and not toward corroborating the accomplice testimony. Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. Id. The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008). The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Id. In addition, if an accomplice is corroborated as to some particular fact or facts, the jury is authorized to infer that he speaks the truth as to all. Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984).
In this case, appellant argues that the State’s case below consisted primarily of the testimony of his alleged accomplice, Tyeiska Roberson, and that the State did not present sufficient evidence to corroborate her testimony. Roberson’s testimony placed appellant at the scene of the crime and in the possession of a gun. The only other testimony positively identifying appellant was in regard to the incident on November 4, 2007, and appellant was identified as dropping a black jacket in which the murder weapon was found. So, apart from Roberson’s testimony, the only other evidence connecting appellant to the murder is that he 113was in possession of the murder weapon four days later. Appellant contends this is not sufficient corroboration of Roberson’s testimony to sustain his conviction for capital murder.
In response, the State asserts that the testimony of both Officer Gilbert and the victim’s nephew is consistent with Roberson’s testimony of the events surrounding the murder. The State also argues that the testimony of several police officers who participated in the traffic stop and subsequent chase on November 4, 2007, was consistent with Roberson’s account and established appellant’s possession of the murder weapon. The State contends that all the evidence presented substantially connected appellant to the crime by showing that he committed similar crimes against similar victims, by placing him at the murder scene, and by linking him to the murder weapon. In addition, the State argues that appellant’s flight from police constitutes corroboration of all the other evidence establishing his guilt.
Based on our standard of review, as explained above, we find that the State provided sufficient evidence to corroborate Roberson’s testimony. Even if Roberson’s testimony is eliminated, the other evidence presented independently established the crime and tended to connect appellant with its commission. The testimony of Officer Gilbert and Dr. Kokes established that the homicide occurred, as did Gregorio Guerrero’s testimony. Gregorio’s testimony also identified Roberson’s vehicle as similar to the vehicle he saw following his | nuncle into the mobile home park and correctly identified the number of people in the car in accordance with Roberson’s testimony. The testimony of several police officers established that appellant was in possession of a handgun, later determined to be the murder weapon, four days after the crime occurred. Andres Montoya’s testimony regarding the robbery in his driveway was in accordance with Roberson’s account of the events on October 27, 2007. Finally, the testimony of the police officers and Deputy Brent Broshow established appellant’s flight from the vicinity of the crime, and this court has held that flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt and may be considered as corroboration of evidence tending to establish guilt. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). Therefore, we find that the circuit court did not err in denying appellant’s motion for directed verdict and affirm appellant’s conviction.
We note that neither appellant nor the State complied with Arkansas Supreme Court Rule 4 — 3(i) (2010) in that both failed to “abstract, or include in the Addendum, as appropriate, all rulings adverse to [the appellant] made by the circuit court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling.” (Emphasis added.) Notwithstanding the parties’ noncompliance, the record in this case has been reviewed for all objections, motions, and requests made by either party, which were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
. Appellant also includes a discussion of Roberson's perjury regarding the letter and contends that "the State should not place a witness in the position to lie under oath and then benefit from the lie.” However, it is unclear what relief appellant is seeking in regard to this discussion or how it relates to whether Roberson’s testimony was sufficiently corroborated. | [
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MOTION FOR RULE ON CLERK
PER CURIAM.
^Appellant Albert Lee Lewis, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Bart Ziegenhorn, states in the motion that the record was tendered late due to a mistake on his part.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the | ¿motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Ziegenhorn has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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COURTNEY HUDSON HENRY, Judge.
I,After a bench trial, the Monroe County Circuit Court found appellant Tyrice Bradley guilty of second-degree murder and first-degree battery and sentenced him to concurrent terms of twenty years in prison. Appellant raises four issues for reversal of his convictions. He contends that the trial court (1) erred by failing to require the prosecutor to disclose the identity of a confidential informant; (2) abused its discretion by recalling and interrogating two of the State’s witnesses; (3) erred by denying his motion for a directed verdict on the issue of accomplice liability; and (4) erred by denying his request to suppress the in-court identifications of two witnesses. Finding no error, we affirm.
The testimony at trial disclosed that, on August 4, 2007, Officer Richard Bryson of the Forrest City Police Department was providing security for a party at the convention center in Brinkley. Bryson disbanded the party because juveniles from Brinkley would not stop |2pushing young people from Forrest City on the dance floor. Afterward, juveniles from both towns gathered outside the Notch Club in Brinkley. Gunfire erupted, and two young men from Brinkley were shot. Jimmy Al-dridge sustained a gunshot wound to the shoulder, and another bullet struck Thomas Baker in the neck.
Joe Cline was riding a moped near the Notch Club when he heard the gunfire. He drove to an alley and proceeded toward the Bank of Brinkley. Cline observed men, wearing red shirts and red hats, riding in a burgundy vehicle. Cline said that one of the men exited the vehicle and began shooting at him. The shots fired at Cline did not strike him. Aldridge survived his wound, although the bullet could not be surgically removed from his shoulder. Baker, however, died from his injury.
Special Agent Phillip Hydron of the Arkansas State Police served as the chief investigator of the case. He surmised that different weapons were used in the shooting in front of the club and the shooting near the bank. Agent Hydron believed that a revolver was used at the club because no shell casings were found there. He concluded that an automatic weapon was used at the bank because officers found spent shell casings at that location.
Witnesses at the Notch Club described the person who fired the shots as wearing a red shirt, a red hat, and a gold “grill” on his teeth. Officer Bryson knew appellant as a high-school student from Forrest City, and Bryson recalled that appellant was dressed in this fashion |sat the party in the convention center. Video footage from a surveillance camera at the convention center confirmed Bryson’s recollection.
Krystal Lee, who lives in Brinkley, attended the party at the convention center and was among those who were standing outside the Notch Club. At trial, she testified that she met appellant for the first time at the party and that they exchanged cell-phone numbers before leaving the con vention center. Lee said that she later called appellant and asked him if he was going to the club. She testified that appellant first said that he was driving home to Forrest City but that appellant called her back and said that he was coming to the club. She said that, after appellant and his friends arrived, appellant walked to a vehicle and retrieved something from the trunk. Lee testified that appellant started shooting when he came back to the club. She said that she ran when the first shot was fired and heard three more shots as she fled. Lee stated that she had no doubt in her mind that appellant was the person who fired the shots.
Kendall Swanigan, also from Brinkley, testified that a fight ensued between boys from Forrest City and Brinkley in the parking lot of the convention center after the party. Swanigan and his friends met at the Notch Club. He said that two carloads of boys from Forrest City arrived later. Swanigan testified that the groups from the two towns argued as they stood on opposite sides of the porch in front of the bar. He said that two of the Forrest City boys had guns, and Swanigan identified appellant as one of those two boys, stating that appellant was wearing red clothing, a red hat, and a gold grill. Swan-igan testified that he |4heard but did not see the first shot but that he saw appellant fire the second shot. He said that the second shot struck Baker and that appellant was the young man who shot him.
Benjamin Moorman, another Brinkley resident, testified that the two groups were arguing in front of the bar and that the shooting began as the boys from Forrest City turned as if to leave. He said that appellant was wearing a red shirt and hat with a gold grill in his mouth. Moor-man stated that he was positive that appellant was the one who started the shooting.
Joyce Palmer, who also resides in Brinkley, was sitting in her car with a friend outside the Notch Club. She testified that she saw the boys from Forrest City arrive and later saw some of them go to their cars and retrieve something from the trunk. Palmer stated that the gunfire began as soon as the Forrest City boys walked back to the club. She described one of the boys as wearing a red shirt and hat with a gold grill in his mouth.
Following his motion for a directed verdict, appellant presented the testimony of Douglas Miller. Miller acknowledged that he was awaiting trial on charges of murder, battery, and aggravated assault in connection with the shootings. He testified that he and his companions, including appellant, drove from Forrest City to Brinkley to attend the party. Miller stated that they rode in appellant’s red Thunderbird. After the party ended, they drove to the Notch Club. Miller said that a man came out of the club and made a threatening remark and that, as this man began removing his shirt, William Franklin, a friend of Miller from Forrest City, brandished a revolver and started shooting. Miller further testified that he | Band his friends ran to the car and drove back to Forrest City and that appellant and Franklin arrived moments later in another vehicle. Miller said that Franklin boasted about shooting three people.
Napoleon Marlowe, also of Forrest City, testified that he, appellant, Franklin, and two others left the party at the convention center in Franklin’s burgundy Grand Marquis. He said that they had planned to go home but that they decided to go to the Notch Club at the invitation of some young women. Marlowe said that he and appellant were sitting on a wall talking to the young women when Marlowe saw a man removing his shirt in preparation for a fight. Marlowe testified that Franklin then pulled out a revolver and began shooting. Marlowe further testified that he, appellant, and Franklin were wearing gold grills that evening and that both appellant and Franklin were wearing red shirts and hats.
Appellant also testified at trial. He recalled that he and his friends drove to Brinkley that evening in two cars. One was a red Thunderbird that appellant borrowed. The other was a burgundy Grand Marquis that belonged to Franklin’s aunt, who allowed appellant to drive it because Franklin had no driver’s license. Appellant also recalled that a fight took place at the convention center, but he denied meeting Lee at the party and said that he did not exchange phone numbers with her. Appellant testified that he was with Marlowe at the Notch Club speaking to some girls when gunfire erupted. He said that he and Marlowe ran to the car but had to wait because Franklin had the keys. Appellant testified that he did not have a gun that evening and that he and Franklin were wearing similar clothing and gold | (¡grills. Appellant said that Franklin told him when they got back to Forrest City that “he had dropped about three people.”
As part of his case, appellant introduced into evidence a judgment and commitment order reflecting that Franklin pled guilty to second-degree murder in connection with this incident. After appellant rested, he renewed his motion for a directed verdict.
The trial court postponed closing arguments for another day. When that date arrived, the trial court informed the parties that he was recalling Lee to the witness stand. Over appellant’s objection, the court asked Lee about the telephone contacts she had with appellant on the night of the shootings. Once again, she recalled phoning appellant on his cell phone and that he called her back a few minutes later. Lee did not remember appellant’s cell-phone number but stated that she gave the number to Special Agent Hydron. Over appellant’s continuing objection, the trial court recalled Agent Hydron. He testified that he looked at the log of received calls on Lee’s cell phone and recorded the number Lee identified as appellant’s cell-phone number.
At the conclusion of this testimony, the trial court granted appellant’s request for a continuance to allow him the opportunity to offer additional testimony. When court reconvened, Agent Hydron corrected his testimony about appellant’s cell-phone number. Hydron said that, after listening to a tape of his interview with Lee, he learned that Lee did not have her cell phone with her during the interview and that Lee later relayed the information about appellant’s cell-phone number. At the conclusion of this testimony, 17appellant renewed his motion for a directed verdict. The court denied the motion and recessed. On a subsequent date, the trial court pronounced its decision finding appellant guilty of second-degree murder and first-degree battery.
Appellant argues that the trial court erred in denying his motions for a directed verdict as his third point on appeal. We treat motions for a directed verdict as a challenge to the sufficiency of the evidence. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). Preservation of appellant’s right against double jeopardy requires that we consider his challenge to the sufficiency of the evidence first, even though it is not listed as his first point on appeal. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). 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. Strong, supra. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id. The duty of resolving conflicting testimony and the credibility of witnesses is left to the discretion of the trier of fact. Boyd v. State, 369 Ark. 259, 253 S.W.3d 456 (2007).
Appellant argues on appeal that the trial court should have granted his motion for a directed verdict on accomplice liability. Appellant asserts that he was not the only person the State charged with having committed these crimes and that one of those persons, Franklin, pled guilty to second-degree murder. Appellant maintains that, in light of Franklin’s guilty 1 «plea, the State could only prosecute appellant as an accomplice. Appellant contends that the record is devoid of any evidence demonstrating that appellant acted as an accomplice to Franklin and that the State only presented evidence demonstrating that he was the actual perpetrator of these crimes. Appellant contends that the trial court’s denial of his motion for a directed verdict allowed the State to maintain inconsistent positions in its theories of guilt.
Appellant’s argument assumes facts that are not in evidence. Therefore, we must affirm without reaching the merits of appellant’s argument. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002) (declining to address merits of argument that prosecution maintained inconsistent factual theories in appellant’s and accomplice’s trials when the record did not support claim that theories were inconsistent). As proof of his contention that the State was pursuing inconsistent theories, appellant introduced into evidence the judgment and commitment order reflecting that Franklin pled guilty to the offense of second-degree murder. The judgment, however, does not indicate the State’s theory of Franklin’s criminal responsibility. Thus, we cannot ascertain from the record before us under what theory the prosecution proceeded as to Franklin, and therefore, the record does not support the factual basis of appellant’s claim. Consequently, we must affirm because it is well settled that the appellant bears the burden of producing a record that demonstrates error. Id.
Next, we consider appellant’s argument that the trial court erred by not requiring the State to disclose the identity of a confidential informant. This argument stems from an email that Ruben Ivey, a Forrest City police officer, sent to Agent Hydron. In the email, Officer 19Ivey stated that a confidential informant told him that he or she was present at the shooting and that Miller and Franklin were the shooters. Appellant filed a pretrial motion seeking disclosure of the informant’s identity. The trial court granted the motion. Later, the prosecutor wrote appellant’s attorney advising that Officer Ivey could not remember the name of the informant but that Ivey would ask other investigators if they recalled the identity of this person. In subsequent correspondence, the prosecutor informed appellant’s counsel that Agent Hydron believed that the informant was Tierra Williams, whose statement the prosecutor had already provided to appellant.
At a pretrial hearing, appellant’s counsel renewed the request for the disclosure of the informant’s identity, arguing that appellant did not believe that Tierra Williams was the informant. In terms of relief, counsel stated, “So once again, your Hon- or, I ask for the following: I ask for the identity of this informant to be made known, or, alternatively, that this email communication be admissible evidence into my case in the defense of this matter.” The prosecutor maintained that he had disclosed the informant’s identity but stated that he had no objection to appellant introducing the email into evidence. In light of the parties’ agreement, the trial court stated that it would accept the email into evidence.
Appellant contends on appeal that the informant possessed exculpatory information that the prosecutor was obligated to disclose. Rule 17.1(d) of the Arkansas Rules of Criminal Procedure provides:
Subject to the provisions of Rule 19.4 [concerning protective orders], the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any 110material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.
The prosecution’s suppression of evidence favorable to an accused violates the defendant’s due process rights, where evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The prosecutor must disclose information in sufficient time to permit the defense to make beneficial use of it, and withholding significant evidence that denies a defendant a fair trial is reversible error. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003).
In this case, the State insisted that it had provided appellant with the name of the confidential informant mentioned in the email. Dissatisfied with the State’s response, appellant asked for relief in the alternative, either disclosure of the informant’s name or the admission of the email into evidence. The trial court granted appellant’s request to admit the email into evidence. Now, appellant faults the trial court for not pressing the State to further investigate the matter. However, a defendant cannot claim error when he prays for alternative relief and the trial court grants one form of the requested relief. Wyles v. State, 357 Ark. 530, 182 S.W.3d 142 (2004). This is so because, under the doctrine of invited error, one cannot be heard to complain of error for which he is responsible. Id. Moreover, a defendant cannot complain about receiving the relief he requested. Id. In addition, we note that appellant at all times knew that Officer Ivey was the source of the information concerning the confidential informant, and appellant was free to interview the officer if he believed that the State’s | t , identification of the informant was incorrect. While the State is obliged to disclose exculpatory evidence, the prosecutor should not be required to disclose information already in the possession of the defendant or obtainable through the exercise of reasonable diligence. Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (1994). A defendant cannot rely on discovery as a total substitute for his own investigation. Smith, supra. We find no error on this point.
Appellant’s next issue concerns the trial court’s decision to recall and interrogate witnesses Krystal Lee and Agent Hydron. Appellant asserts that the trial court’s desire to hear additional evidence reveals that the court had reasonable doubt as to guilt and that the trial court erred by not resolving those doubts in favor of the presumption of innocence.
A trial court has some responsibility for the proper conduct of trial, the ascertainment of truth, and the achievement of justice. Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972). Rule 614 of the Arkansas Rules of Evidence author- tees a trial court on its own motion to call and interrogate witnesses. A trial court may, in the interest of justice, direct questions to a witness calculated to elicit the truth about the subject matter being investigated, provided they are carefully framed in a manner not indicating any opinion on the merits of the controversy. Washington v. State, 267 Ark. 1040, 594 S.W.2d 29 (1980). The trial court has some discretion in examining witnesses to clarify their testimony, and when no prejudice appears, there is no abuse of that discretion. Id. The reasons for restraint are minimal when the judge is the trier of fact, and his responsibilities for elicitation of all pertinent facts are | ^perhaps increased. Jordan, supra. He has the right and duty to ask questions to clarify an obscurity in the testimony or even to develop facts in regard to some feature of the case he feels has not been properly developed. See id.
Here, the trial court sought to confirm Lee’s testimony that she spoke to appellant on the telephone on the night in question. We find no abuse of discretion in the trial court’s endeavor to clarify this matter. We also perceive no prejudice to appellant, and we will not reverse absent a showing of prejudice. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). The trial court gave appellant the opportunity to cross-examine these witnesses and allowed him a continuance to rebut the testimony they offered. In addition, the testimony did not establish that the phone calls were made because no one confirmed that the number purportedly stored in Lee’s phone was appellant’s phone number. Thus, even if the trial court overstepped its authority, appellant failed to demonstrate prejudice.
Appellant’s remaining argument is that the trial court erred by not suppressing the in-court identifications of witnesses Swanigan and Moorman. Within days of the shooting, these witnesses, along with Lee, identified appellant from a photo array of six persons. The array included the photographs of appellant, Miller, and Franklin, the three men charged in this case. The photos depicted appellant and Miller wearing gold grills, while the mouths of the other men were closed. Appellant argues that the photo spread was unduly suggestive | ^because his photograph was placed in the “dominant” position on the top left side of the array and because only he and Miller were shown wearing gold mouthpieces. Appellant further contends that Swanigan’s identification of appellant was not reliable because Swanigan admitted that he had smoked marijuana on the night of the shootings. He also argues that Moorman’s identification is suspect because Agent Hydron turned off the tape recording of Moor-man’s interview prior to his viewing the array.
A pretrial identification violates the Due Process Clause when there are suggestive elements that make it all but inevitable that the victim will identify one person as the culprit. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). In determining whether an in-court identification is admissible, the court looks first at whether the pretrial identification procedure was unnecessarily suggestive or is otherwise constitutionally suspect, and it is the appellant’s burden to show that the pretrial identification is suspect. Mezquita v. State, 354 Ark. 433, 125 S.W.3d 161 (2003). Reliability is the linchpin in determining the admissibility of identification testimony. Id. Even when an identification procedure is impermissibly suggestive, the trial court may determine that, under the totality of the circumstances, the identification was sufficiently reliable for the matter to be submitted to the fact finder, and then it is for the fact finder to decide the weight the identification testimony should be given. Id. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; 114(4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a pri- or occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Fields, supra. We do not reverse a trial court’s ruling on the admissibility of identification evidence unless it is clearly erroneous, and we do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Hutcherson v. State, 74 Ark.App. 72, 47 S.W.3d 267 (2001).
Our review of the photographic array and the record leads us to conclude that the trial court’s decision is not clearly erroneous. A lineup is not per se unconstitutionally suggestive merely because only one person was wearing a piece of clothing similar to that worn by the offender. Phillips v. State, 327 Ark. 1, 936 S.W.2d 745 (1997); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984). Here, appellant was not the only person in the lineup who wore a gold grill. As such, it was not inevitable that the witnesses would select one person as the perpetrator. Nor can we conclude that the array was impermissibly suggestive because appellant’s photograph was positioned on the top left corner. Appellant has cited no authority that the positioning of the photo made it more likely to be chosen by a witness. We will not consider an argument that presents no citation to authority or convincing argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).
With respect to appellant’s argument that Swanigan was under the influence of marijuana, the trial court weighed all of the factors bearing on the issue of reliability and 115determined that Swani-gan’s identification of appellant was reliable. The court noted that Swanigan had ample opportunity to observe the shooting; that he gave an accurate description of appellant; that he did not identify another person as the culprit; that his testimony at trial identifying appellant as the perpetrator was positive and unequivocal; that he had not failed to identify appellant on a prior occasion; and that the lapse of time between the crimes and the pretrial identification was short. We cannot say that the trial court’s ruling was clearly erroneous.
We reach the same conclusion as to Moorman. The trial court also considered the appropriate factors in determining the reliability of Moorman’s identification and allowed the testimony to be admitted. Although the tape was turned off during his interview, Moorman did not testify that anyone suggested to him whom he was to select in the lineup. We thus cannot accept appellant’s suggestion that Agent Hydron sought to influence Moorman’s identification. The trial court’s decision concerning the reliability of Moorman’s identification was not clearly erroneous.
Affirmed.
ROBBINS and KINARD, JJ., agree.
. However, the prosecutor charged appellant with the aggravated assault of Cline. The trial court dismissed this charge after granting appellant's motion for a directed verdict.
. In his brief, appellant states that he is challenging the in-court identifications of Swani-gan and Lee. It is clear to us that appellant has confused Lee with Moorman. Therefore, we confine our discussion to Swanigan and Moorman. | [
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J. Fred Jones, Justice.
Gerald Cartmell sued the Home Mutual Fire Insurance Company in the Madison County Circuit Court on an insurance policy for damage caused by lightning to the foundation of a house under construction. Judgment was entered in favor of Cartmell on a jury verdict for $371.48. Statutory penalty of 12% and attorney’s fee in the amount of $250 was assessed against the insurance company, and it appeals to this court relying on the following point for reversal:
“1. The court erred in refusing to give appellant’s offered instruction No. 4 which directed the jury to return a verdict for the appellant.
“2. The court erred in allowing appellee to introduce the opinion of Sol Stevens as an expert as to what caused the damage.
“3. The court erred in allowing Mr. Sol Stevens to testify as an expert.”
Oartmell contends that the damage ivas caused by lightning, within the coverage of his insurance contract, and the company contends that the damage was caused by water, within the exclusionary clause. This entire case turns on the fact question of whether the damage complained of was caused by lightning. The jury found that it was, so the question before this court on appeal is whether there was any substantial evidence to support the finding of the jury, and we conclude that there was.
The record before us reveals the following facts: In August, 1964, Mr. Oartmell had under construction a house 72 feet long and 26 feet wide. The house was being built on a little knoll with the length of the house running north and south and the front facing east. The natural drainage was to the west. A full basement for the house had been excavated the entire length of the house with a bulldozer and a concrete basement floor had been poured. The east and west walls of the basement, which also constituted the foundation for the house, had been constructed against the vertióle side walls of the excavation, with twelve inch by sixteen inch concrete blocks laid eleven blocks high. The construction of a chimney and fireplace had been started in the center of the basement and this construction had proceeded to the floor level of the house. The house itself had been constructed on this foundation and was 75% complete when the workmen quit for the day on August 17, 1964.
When the construction was begun, prior to August 17, Mr. Oartmell obtained an insurance policy from the appellant insuring the house up to $10,000 against dam age caused by windstorm and lightning, but excluding damage caused by high water or overflow, whether driven by wind or not. On the night of August 17, an electrical rainstorm occurred in the vicinity and when the workmen returned to the house on the morning of August 18, a part of the west wall of the basement, or the west foundation of the house, was down inside the basement and mud and some water was in the basement.
At the trial, Mr. Cartmell testified as follows:
“Q. Now, on the morning of the 18th day of August, did you notice any damage to your house?
A. I sure did. The west wall was blowed plum out of it.
Q. Now, you’re talking about the basement wall?
A. That’s right, the basement wall.
Q. When you say it was blown out, clarify that a little for the jury, will you?
A. Well, there was two hundred and thirty blocks busted all to pieces and they were busted to pieces across the basement wall, twenty-six feet.
** # #
Q. What was the general condition of the basement when you observed it on the morning of the 18th, other than the blocks being scattered around?
A. It was just a mess.
Q. Did you notice anything outside the house?
A. Well, there was — .
Q. On the west side of the house?
A. Well, there was a hole there.
Q. How large was the hole?
A. Oh, probably three foot in diameter.
Q. Where was the hole?
A. About the center of the basement wall.
* *
Q. This hole yon saw near the septic tank on the west side of the house, what did it look like to you? ?
A. It was a hole about three foot in diameter right where the plumbing come out of the west wall.
Q. Had you or any of the workmen dug such a hole there?
A. No, sir.
Q. And you’ve testified that there was damage to the plumbing also?
A. Yes. sir, there were some Ts that were busted where the — and an elbow, I think. Mr. Markley, he replaced that. He was doing the plumbing at the time.
Q. Do yon know of your own knowledge know [sic] whether or not there was an electrical storm the night of the 17th?
A. Yes, sir, there was. There was here in Huntsville. I lived in Huntsville then in the basement of the Western Shop.”
Mr. Stevens, a stonemason who was in the process of building a fireplace and chimney in the center of the basement, testified as follows:
“Q. All right, . . . would you tell us what the condition of the wall was? Was it standing up straight or was some of the blocks broken or — go into that.
A. Well, I would say that three-fourths of them was broke all to pieces and was scattered all over the inside of the basement.
Q. Now, what else was in the basement other than the blocks?
A. Well, there was some mud.
ft ft ft
Q. Have you seen the results of lightning striking various objects?
A. I have.
Q. Did you examine the damage or did you go along the west side of the Cartmell house?
A. I did.
Q. What did you notice there?
A. Well, they was quite a pothole there, different to what it was the night before. And it looked like the mud had went plum in and it had sprayed on my fireplace footing.
ft ft ft
Q. What, in your opinion, caused the damage?
ft ft ft
A. Well, I can say this, it wasn’t compression against the wall.
Q. Well, what, in your opinion, caused the damage?
ft ft ft
A. If it wasn’t lightning, I wouldn’t know what it was.”
In determining whether or not the trial court erred in its failure to direct a verdict, we must take that view of the evidence which is most favorable to the party against whom the directed verdict is requested, and if there is any substantial evidence tending to establish the issue in favor of the party against whom the request is made, it is not error for the court to refuse the request but would be error for the court to take the case from the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the request is made; and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fairminded men might draw different conclusions therefrom, the motion for a directed verdict should be denied and the cause submitted to the jury under proper instructions. Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399 S.W. 2d 658.
The trial court properly instructed the jury as to circumstantial evidence and the burden of proof in this case, and we conclude that there was substantial evidence from which the jury could have concluded, as it apparently did, that the damage was caused by lightning. This court will not reverse the verdict of a jury as to factual issues if the jury could have found as it did, from the evidence presented Southern Farm Bureau Cas. Ins. Co. v. Brigance, 234 Ark. 172, 351 S.W. 2d 417; Arkansas Motor Coaches, Ltd. v. Williams, 196 Ark. 48, 116 S.W. 2d 585.
As to Mr. Stevens’ testimony, he had had sixteen years experience in building concrete block walls. He observed the damaged wall and- was qualified to testify that in his opinion the wall did not fall because of compression against the wall. In testifying that he did not know what damaged the wall unless it was lightning, Mr. Stevens did not qualify, neither did he testify as an expert on lightning, that the wall was struck by lightning —he testified from inspection and observation that there was no compression against the wall and that he didn’t know what caused the damage unless it was lightning. Mr. Stevens was qualified to give the opinion he did give, based on his experience and observation as to what dicl not caiose the damage.
There is no question that a heavy rainstorm, attended by severe lightning, occurred in the vicinity of the house on the night of August 17. The evidence offered by the appellant tended to prove that the damage was caused by high water. The evidence as to what caused the damage was definitely in dispute in this case and we conclude that the conflicting evidence was such that fair-minded men could draw different conclusions therefrom. It was for the jury to determine from all the evidence what did cause the damage, and we are of the opinion that there was substantial evidence to support the jury in reaching the verdict that it did.
Judgment affirmed. | [
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George Rose Smith, Justice.
The appellant, charged with the murder of J. F. Wilson, appeals from a verdict and judgment finding him guilty of voluntary manslaughter and sentencing him to two years imprisonment. He argues several points for reversal.
It is first insisted that the court should not have submitted the issue of voluntary manslaughter to the jury, because even if it be assumed that Patrick shot Wilson, there is no proof that he acted upon a sudden heat of irresistable passion. Ark. Stat. Ann. § 41-2208 (Repl. 1964). We have held, however, that the accused cannot complain of such a charge if the proof would have supported a finding that he was guilty of a higher degree of homicide than that for which he was convicted. Trammell v. State, 193 Ark. 21, 97 S.W. 2d 902 (1936). Hence the question is whether the evidence would have supported a conviction for murder.
We hold that it would. Wilson was 76 and Patrick almost 79 on the day of the shooting, August 11, 1967. They were living on adjoining properties on a county road in the Beckett Mountain community in Faulkner comity. Wilson’s widow testified that at about 7:00 a.m. her husband went down to the barn to milk. Upon hearing a loud report from a gun, followed by the barking of the Wilsons’ dog, Mrs. Wilson ran down to the corral and found her husband on the ground, covered with blood. On the way down she had seen Patrick walking toward his own house, carrying a long gun. When Mrs. Wilson reached her husband, he said, “The old man shot me. Why did he do it?”
Wilson was taken to the hospital in an ambulance, and the sheriff was called. Deputy sheriff Joe Martin, state police officer Bill Mitchell, and deputy prosecuting attorney Lynn McClinton answered the call. They had been told by radio that Patrick had shot Wilson. Patrick turned over a shotgun and a rifle to the officers, saying that he had used the shotgun that morning to fire at a hawk in a tree. Wilson died in a Little Bock hospital on September 28. The cause of death was a shotgun wound that severed his spine. The court admitted in evidence a dying declaration in which Wilson said that Patrick shot him.
Upon the testimony as a whole the jury could have found that Patrick deliberately shot his neighbor. He was admittedly at the scene, armed with a shotgun that was fired at ábout the time Wilson was shot. There is no indication that any other possible assailant was in the vicinity, the next nearest house being a quarter of a mile away. Wilson said at least twice that it was Patrick who shot him.
Defense counsel argue here, as they doubtless did to the jury, that there was no reason for Patrick to shoot Wilson. There is proof that the Wilsons and the Patricks had been on friendly terms, though there is some indication that ill feeling had arisen from Patrick’s belief that Wilson had poisoned a bull belonging to Patrick. In any event, the State was not required to prove a motive for the homicide. Avey v. State, 149 Ark. 642, 233 S.W. 765 (1921). Lack of motive was merely a circumstance to be considered by the jury in reaching its verdict, which is conclusive upon the issue of guilt or innocence.
The State introduced three shotgun pellets that were taken from Wilson’s body. A surgeon testified that a fourth pellet, which lodged in the neck, was the cause of death, but that pellet was not recovered at the autopsy. Counsel now contend that the three pellets were inadmissible, not only because they did not inflict the fatal wound but also because they could not be ballistically identified as having been fired from any particular shotgun — especially Patrick’s.
That argument goes to the persuasive force of the evidence, not to its admissibility. The State’s theory was that Patrick had killed Wilson with a shotgun. That shotgun pellets were found in Wilson’s body unquestionably gave logical support to the prosecution’s contentions. The court would have erred if it had excluded such pertinent proof.
In the same vein counsel insist that the prosecuting attorney should not have been allowed to argue to the jury that Patrick had loaded his shotgun with buckshot, there being no proof that Patrick actually had any such shells in his possession. The argument was permissible. The pellets recovered at the autopsy were buckshot. On the basis of that fact, and in the light of all the circumstances, the prosecutor was certainly entitled to present the State’s theory to the jury. The court properly cautioned the jury that the prosecutor’s statement was not evidence in the case.
The appellant’s three remaining contentions have to do with the admissibility of evidence. We find no error in the court’s action in admitting a dying declaration made by Wilson to Fern Soules, a minister who often talked with Wilson at the hospital. Mrs. Soule’s testified that when she tried to encourage Wilson by saying that he would be (all right, he would say, “Ob, no!” or shake his head. JThe court property instructed the jury that the dying declaration was not to be considered unless the jury found it to have been made under a sense of impending' death. Alford v. State, 161 Ark. 256, 255 S.W. 884 (1923); cf. Barnhart, The Determination of Facts Preliminary to Admission of Evidence in the Arkansas Courts, 2 Ark. L. Rev. 1 (1947). Even though the proof of Wilson’s hopelessness was not as strong as it might have been, it was sufficient to take the issue to the jury.
Next, we think the court properly overruled the defendant’s motion to suppress proof that Patrick turned his shotgun over to the officers on the morning of the crime. At that time no Miranda warning was required, because the officers had not arrested Patrick or deprived him of his freedom in any way. Miranda v. Arizona, 384 U.S. 436, 477 (1966). Furthermore, even if the officers had first arrested Patrick, they could have searched the premises as an incident to the arrest, Ker v. California, 374 U.S. 23 (1963); so he merely consented to what might have been done without his permission.
Finally, the court was right in allowing the jury to take four photographic exhibits into the jury room, even though the photographer liad noted on the back of each picture the direction toward which it was taken and some indication of what it portrayed. Substantially the same information had already been given under oath when the pictures were received in evidence. Even if a minor detail or two had not been covered in the testimony, we find no possibility of prejudice.
Affirmed. | [
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J. Fred Jones, Justice.
The appellant, Charles Petty, was tried before a jury and convicted of the crimes of burglary and grand larceny in the Poinsett County Circuit Court. He was sentenced to the state penitentiary for terms of fifteen years on each charge, the terms to run consecutively with minimum time to be served fixed by tbe court at ten years. Upon appeal to this court tbe appellant relies on tbe following three points for reversal:
“That the court erred in refusing to declare a mistrial when the prosecuting attorney in his opening statement remarked that the appellant had not been brought to trial at an earlier date because he had been in custody in another state.
That the court erred in giving instruction thirteen (13) since the instruction as given violates article 7 section 23 of the Arkansas Constitution.
That the court erred in fixing the minimum time to be served by appellant in the department of corrections at ten years.”
As to appellant’s first point, the remarks to which he objects are contained in an exchange between the attorneys and the court as follows:
“DEPENDANT’S ATTORNEY: At this time the Prosecuting Attorney in his opening statement just told the jury the reason this case didn’t come on for trial is that the defendant was in custody in another State. At this time we move the Court to declare a mistrial in this case for the reason that he has mentioned the fact that the defendant was in custody in another State implying that he had committed another offense and we are asking the Court to declare a mistrial at this time.
PROSECUTING- ATTORNEY: If the Court please, the State in the opening statement in making that remark was merely repeating or reiterating the statement that was made by defense counsel to the jury on voir dire examination as an explanation as to why the delay or the difference between the 1964 offense and now. It could not be prejudicial because the defense had already made this information available to the jury. Certainly I would not have done so if it had not been pointed out to the jury on voir dire.
# # *
THE COUBT:
In view of the fact that Counsel for the defense in qualifying the jury brought out the fact that he had been previously convicted and you qualified the .jury on that point, you opened the door for the Prosecuting Attorney to also make reference thereto, your motion will be denied and your exceptions noted. ’ ’
We find no error in the trial court’s denial of appellant’s motion. This point was decided contrary to appellant’s contention in Bethel and Wallace v. State, 180 Ark. 290, 21 S.W. 2d 176, where this court said:
“It is well settled that trial courts have a wide discretion in the supervision of trials before them, including matters pertaining to opening statements, and this court will not reverse unless a manifest abuse of discretion is shown. Nelson v. State, 139 Ark. 15, 212 S.W. 93; Stanley v. State, 174 Ark. 743, 297 S.W. 826; Adams v. State, 176 Ark. 916, 5 S.W. 2d 946; Bowlin v. State, 175 Ark. 1115, 1 S.W. 2d 553.”
We find no abuse of discretion in this case.
As to his second point appellant objects to the trial court’s action in submitting to the jury the following instruction:
“The possession of property recently stolen without reasonable explanation of the possession is evidence which goes to you for your consideration under all the circumstances of the ease to be weighed as tending to show the guilt of one in whose hands such property is found. But such evidence alone does not impose upon you the duty of convicting even though it he not rebutted.”
Appellant specifically objects to this instruction on the basis that the instruction singles out and calls the jury’s attention to particular evidence; that it is an instruction on the weight of the evidence, and therefore an invasion on the province of the jury. This court has also held contrary to appellant’s contention on this point.
In McDonald v. State, 165 Ark. 411, 264 S.W. 961, the appellant sought reversal of his conviction for the crime of stealing cattle. One of his assignments of error was that the court erred in giving the very same instruction as the one objected to in the case at bar. McDonald insisted in that case that the instruction was improper as being an instruction on the weight of the evidence, and in approving the instruction, this court said:
“This court has held that similar language in an instruction means no more than telling the jury that such evidence may be considered for the purpose of determining the guilt or innocence of the defendant. Hogue v. State, 93 Ark. 316.
The next objection to the instruction is that it is upon the weight of the evidence because it instructs the jury that the possession of property recently stolen, without explanation of the possession, makes it the imperative duty of the jury to convict, and thus becomes a charge upon the weight of the evidence. We do not think so. A fair interpretation of the instruction would warrant the jury in convicting the defendant, but does not tell it as a matter of law that it must convict if it should find that the stolen cattle had been recently found in the possession of the defendant, without explanation on his part. In fact, the instruction tells the jury that the finding of such fact does not make it the imperative duty of the jury to find the defendant guilty. The court has no right to tell the jury what ¡effect it should give the evidence, and it did not do so in this case.
On the other hand, instead of pointing out what inferences the jury should draw from particular facts or circumstances, it left the whole matter of the guilt or innocence of the defendant to the jury, and left the jury free to draw whatever inference it should see fit from the fact that it might find that the stolen cattle were found in the possession of the defendant soon after the larceny was committed, without explanation on his part. Spivey v. State, 133 Ark. 314, and Pearrow v. State, 146 Ark. 182.”
See also Johnson v. State, 190 Ark. 979, 82 S.W. 2d 521.
Appellant’s third point is without merit. No objection was made to the entry of the judgment or the penitentiary commitment thereon nor was this point presented to the trial court in a motion for a new trial. The rule is well settled that “no issue can be raised in this court which was not raised in the trial court . . .” Gulley v. Budd, 209 Ark. 23, 189 S.W. 2d 385.
Affirmed.
Fogleman, J., disqualified and not participating. | [
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John A. Fogleman, Justice.
This appeal involves an order determining heirship^ of Nolle McCrary Reynolds, insofar as tbe parties to this proceeding are concerned. Appellees C. N. (Chalmer Nathan McCrary) Cook and Matthew A. (Matthew Alexander Locke) Cook are brothers. 'They instituted the proceeding claiming to be entitled to share in the estate of Mrs. Reynolds as second cousins on her paternal side, with the additional circumstance that their father and Mrs. Reynolds’ father had been double first cousins. We will refer to them as “McCrary heirs.” While it was indicated in the court below that there might be others standing in tbp same (or nearer) degree of kinship with the decedent as appellees in tlie McCrary line, this question has been reserved by the probate court. The petition was resisted by Jeanette Joyner Locke, the only surviving first cousin of Mrs. Reynolds. It also developed during' the hearing' that there were descendants of two brothers of Mis. Locke who would be entitled to share with her, per stirpes, in any inheritance on the maternal side. ’ "We shall refer to these heirs, collectively, as the “Joyner heirs.”
It was stipulated that the property involved was a new acquisition by Mrs. Reynolds, at least insofar as the parties involved are concerned. For the purposes of this proceeding, we may consider that Mrs. Reynolds died intestate.
The probate court held that both the “McCrary heirs” and the “Joyner heirs” were entitled to one-half of the estate. Although the probate judge considered this difficult question of first impression at length and reviewed the authorities exhaustively in an excellent memorandum opinion, he recognized that the matter was unsettled in Arkansas and actually encouraged this appeal in an order subsequent to that from which the appeal was taken. With all due respect, we reach a conclusion different from that of the trial court.
The solution of the problem depends upon the interpretation to be given our statutes of descent and distribution, particularly Ark. Stat. Ann. §§ 61-101 and 61-111 (1947). For a better understanding of the result we reach, these sections are reproduced as follows:
“61-101. General law of descent. — When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower in the following manner:
First: To children, or their descendants, in eqnal parts.
Second: If there be no children, then to the father and mother in equal parts, or, if one parent be dead, then the whole to the surviving parent; if no father or mother, then to the brothers and sisters [or their descendants], in eqnal parts.
Third: If there be no children, nor their descendants, father, mother, brothers, or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestee [Ancestor], and their children and their descendants, in equal parts.”
“61-111. Descent where no father or mother. —The estate of an intestate, in default of a father and mother, shall go as follows: one-half to the brothers and sisters, and their descendants of the father; and the other one-half to the brothers and sisters, and their descendants, of the mother; provided, that if such line of either the father or the mother shall be extinct, then the entire estate shall go to such line of the other. This provision applies only where there are no kindred, either lineal or collateral, who stand in a near['.er] relation, and does not apply to ancestral estates.”
Mrs. Reynolds left no descendants. Her mother, father and all grandparents predeceased her. All her brothers and sisters died when very young, leaving no issue. She left no uncles or aunts surviving her. She was the daughter of Jessie Joyner and Nathan C. Mc-Crary.
Jessie Joyner, Mrs. Reynolds’ mother, was the daughter of William and Martha Joyner, and the sister of Henry Joyner. Henry Joyner was the father of appellant. He also had five sons, none of whom were living at the time of Mrs. Reynolds ’ death, although two of the deceased sons each left a child surviving them.
Nathan Chalmer McCrary, the father of the decedent, was the son of M.artha Ann Isabella Cook, who married Matthew P. McCrary. Matthew McCrary’s sister, Fannie, married Nathan Judson Cook, the brother of M.artha Ann Isabella. Martha and Nathan were the only children of Thomas Barnes Sims Cook who lived beyond childhood. Nathan Judson Cook and Fannie McCrary had one son, Thomas Brice Sims Cook, who was the father of appellees and the double first cousin of Mrs. Reynolds’ father.
We will first dispose of a contention on the part of appellees that presents little problem. They contend that their relationship as double cousins to the decedent makes them related to her in the same degree as Mrs. Locke, contrary to the finding of the probate judge. Arkansas follows the canon or common law rule in determining degree of relationship. Meek, Descent & Distribution, Arkansas Bar Association Desk Manual, ¶ II(6), p. 13; Kelly v. Neely, 12 Ark. 657. William Joyner was the common ancestor of decedent and appellant. Thus, appellant was related to Mrs. Reynolds in the second degree. The common ancestor of Mrs. Reynolds and appellees was Thomas Barnes Sims Cook, which would make their relationship in the third degree. Appellees have cited no authority to support their argument and we know of none. On the other hand, appellant has cited Franklin v. Hastings, 253 Ill. 46, 97 N.E. 265. We think that the holding of the Illinois court is correct. Of course, the degree of relationship of appellees to the decedent would be determined by the nearest common ancestor.
We agree with the probate judge that § 61-111 provides the guideline for determination of the issues here as to real estate, but do not agree with his construction of the pertinent portions of that provision. It is to be noted that the general scheme of the Arkansas statutes of descent and distribution is establishment of certain “levels” of inheritance. As to new acquisition real property, they are, generally:
1. children or their descendants,
2. parents,
3. brothers and sisters and their descendants, and
4. uncles and aunts.
In arriving at these “levels” it is necessary to be aware that §61-111 defines the manner of descent of real estate where subsection 3 (third) of § 61-101 applies. Todd v. Thedford, 221 Ark. 436, 253 S.W. 2d 961.
The critical point in this case, however, is not the degree of relationship of the adverse claimants, but the construction and application of the meaning of the proviso in §61-111, i.e., “that if such line of either the father or the mother shall be extinct, then the entire estate shall go to such line of the other.” The trial judge held that the father’s line was not extinct, apparently because of the survival of appellees. This is the point on which we disagree with the trial court. We hold that the line on the paternal side became extinct when there were no brothers and sisters (or their descendants) of Nathan Chalmer McCrary, the father of Nelle Reynolds. In so doing, we give consideration to the use of the word “such” to describe the lines mentioned in the proviso. It seems to us that it can only refer to the extinction of the specified collateral kin, i.e., brothers and sisters and their descendants, rather than to complete extinction of the bloodline. If the latter meaning were intended, the word “such” could be eliminated in favor of the word “the” in both places it precedes the word “line.” The word “such” would be surplusage only. A statute should be construed so that no word is void, superfluous or insignificant and meaning and effect must he given to every word contained therein, if possible. Wilson v. Biscoe, 11 Ark. 44; State v. Embrey, 135 Ark. 262, 204 S.W. 1139; Watson v. Harper, 188 Ark. 996, 68 S.W. 2d 1019; Wiseman v. Affolter, 192 Ark. 509, 92 S.W. 2d 388; Holt v. Howard, 206 Ark. 337, 175 S.W. 2d 384; Monsanto Chemical Co. v. Commissioner of Labbor, 229 Ark. 362, 314 S.W. 2d 493. Our construction is not out of harmony with the legislative intent of the act. It seems to be in harmony with the excellent treatise by Mr. Harry Meek cited above. See, Problems in Land Descents, first problem, p. 6, Descent & Distribution, Arkansas Bar Association Desk Manual, 11 (28), p. 34.
The descent of real estate in this case is not governed by the decision in Dean v. Stuckey, 234 Ark. 1103, 356 S.W. 2d 622, relied upon by appellee, because there were brothers or sisters (or both) of both the mother and father of the decedent in that case.
While all parties have treated the case as if only realty were involved, the greater part of the estate actually consists of personalty. Section 61-111 has no application to the devolution of personalty. It is governed exclusively by § 61-101. Kelly’s Heirs v. McGuire, 15 Ark. 555, 585. The effect of § 61-101 is declared in the following language in the cited case:
“The effect of the 1st section is, to constitute the persons, who take the personal property, whether per capita, or per stirpes, and whether of the whole or half blood, the absolute owners. Nor is it material, whether those persons are of the paternal or maternal, or the lineal or collateral line. ’ ’
It was also held in that case that the rules of per capita and per stirpes apply to personalty as well as to realty, to wit:
‘ ‘ As, by its express language, it relates to both real and personal property, it was manifestly the design of the Legislature, when there were descendants of the intestate, to send down both to them per capita, if in equal degree, and per stirpes, if in unequal degree, without any regard to the fact as to how the property had been acquired. And as to personal property, where there are no descendants of the intestate to distribute it to, collaterals will take in the same way as descendants, if there had been any: that is to say, without any inquiry as to how it was acquired, and, per capita, if in equal degree, and per stirpes, if in unequal degree. This was manifestly the design of the Legislature.”
These holdings were followed and applied in Byrd v. Lipscomb, 20 Ark. 19. See, also, Meek, Descent & Distribution, Arkansas Bar Association Desk Manual, p. 38, et seq.
The third section of § 61-101 provides for distribution of personal property, in the absence of children (or their descendants), parents, brothers or sisters (or their descendants), to the grandparents, uncles and aunts and their descendants, in equal parts, “and so on in other cases without end, passing to the nearest lineal ancestee [ancestor], and their children and their descendants, in equal parts.” [Emphasis ours.] The nearest lineal ancestor of Nelle Reynolds, under this statute, was William Joyner. The Joyner heirs are his descendants. We conclude that the purpose of the word “nearest” in the statute was to maintain the “levels” of inheritance and to exclude very remote relatives on one side in fav- or of those of a closer degree on the other. This would mean, as suggested by Mr. Meek in his addendum to Descent & Distribution, supra, p. 11, that the search for distributees will not go “uphill” if there are descend ants of grandparents surviving. The McCrary heirs are descendants of great-grandparents, one step “uphill” from William Joyner on Nelle Reynolds’ maternal side. Thus, the personalty should be distributed to the Joyner heirs p.er stirpes.
Reversed and remanded for further proceedings consistent with this opinion.
See Daniels v. Johnson, 216 Ark. 374, 226 S.W. 2d 571. | [
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J. Fred Jones, Justice.
This case arises out of a collision between two automobiles in Springdale, Arkansas. One of the vehicles was owned and operated by-Willard Hodges. The other vehicle was owned by Springdale Motor Company and was operated by Randy Morris, a minor, fifteen years of age. Louis Kessell, then fourteen years of age, and Jimmy Ray Combs, then sixteen years of age, were passengers in the vehicle driven by Morris. The Collision accurred when Hodges drove his automobile into the path of the automobile driven by Morris. Willard Hodges sustained fatal injuries in the accident and Randy Morris and Louis Kessell were severely injured.
Separate suits were filed against the estate of Hodges on behalf of the minors, Kessell and Morris, for their personal injuries and on behalf of Springdale Motor Company to recover for its property damage. The administrator of Hodges’ estate answered by gen eral denial and pleaded contributory negligence on the part of Kessell. The administrator also alleged that Kessell’s injuries were caused by the negligence of Morris; that Kessell assumed the risk of Morris’ negligence ; that they were on a joint venture and that Morris’ negligence was imputed to Kessell. The administrator also cross-complained for contribution from Morris in the event of an adverse judgment. The cases were consolidated for trial and the issues were submitted to the jury on eight interrogatories to be answered in the form of verdict. Interrogatories 1', 2, 3, 4, 5, 6 and 8 being pertinent to the problem here, they were propounded to the jury and answered as follows:
“No. 1. Do you find from a preponderance of the evidence that the deceased, Willard Hodges, was guilty of negligence which was a proximate cause of the accident in question?
Answer: Yes.
No. 2. Do you find from a preponderance of the evidence that Randy Morris was guilty of negligence which was a proximate cause of the accident in question?
Answer: Yes.
No. 3. Using 100% to represent the total fault or negligence, what percentage of fault or negligence do you find to be attributable to eách of the following?
Willard Hodges, 44%
Randy Morris, 56 %
No. 4. Do you find from a preponderance of the evidence that Louis Kessell was guilty of negligence which was a proximate cause of any damages which he may have sustained?
Answer: Yes.
No. 5. Using 100% to represent the total fault or negligence, what percentage of fault or negligence do you find to be attributable to each of the following,
Willard Hodges, 75%
Louis Kessell, 25%
No. 6. Do you find a preponderance of the evidence that Louis Kessell assumed the risk of riding in the automobile driven by Randy Morris?
Answer: Yes.
No. 8. What do you find each of the following are entitled to recover for the following elements:
Answer: Leroy Kessell
Medical expenses for minor, $990.00
Louis Kessell
Conscious Pain and
Suffering, $1,250.00
Disability and Loss of
Earning Capacity, $5,000.00”
The trial court reduced the amount of Kessell’s damages by 25% and entered judgment for Kessell against Hodges’ estate in the amount of $5,430.00. On direct appeal, Hodges’ estate designated the following points for reversal:
“The Trial Judge erred in refusing to apply the jury’s finding that appellee Louis Kessell assumed the risk of riding with his host whose negligence exceeded fifty per cent and further erred in refusing to dismiss appellee Kessell’s complaint.
“If the negligence of the host driver was not imputed to appellee Louis Kessell, thereby barring appellees’ recovery, then, in any event, the trial court erred in refusing to reduce appellees’ recovery by 81 per cent, the total of the negligence assumed, and Louis Kessell’s own contributory negligence.”
On cross-appeal, Kessell designated the following point:
“The trial court erred in submitting the question to the jury of whether Louis Kessell assumed the risk of his own injuries for the reason that there was no evidence from which the jury could determine that he had assumed the risk.”
We are unable to see where assumption of risk as an element separate and apart from contributory negligence enters into the picture in this case at all. The collision was caused by the combined negligence of appellant’s intestate Hodges and appellee Kessell’s host driver Morris, and the separate negligence of each constituted a proximate cause of the collision. Hodges contributed 44% and Morris contributed the remaining 56% of this negligence. As between the two drivers, Morris is barred from recovery by his own negligence and this is not questioned. Although Kessell assumed the risk of riding with Morris, and although he may have been negligent in doing so, he was not driving the Morris automobile, nor was he directing Morris in its operation at the time of the collision. Kessell did not sue Morris, but he did sue Hodges’ estate for damages he sustained because of Hodges’ negligence. The jury found that the combined negligence of Hodges and Kessell caused the damages sustained by Kessell and that Hodges contributed 75% and Kessell contributed 25% of this total negligence causing Kessell’s injuries, and the court correctly found that as between Kessell and Hodges, Hodges was only liable for 75% of Kessell’s damages.
Appellant argues, in effect, that by assuming the rick of riding in the automobile with Morris while on a joint venture, the negligence of Morris in the operation of his automobile was imputed to Kessell to the exclusion of his cause of action against Hodges for damages as a proximate result of the negligence of Hodges. Appellant cites J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W. 2d 176, and Canady v. Allen, 239 Ark. 742, 393 S.W. 2d 865, as authority for the proposition that Kessell’s right to recovery was barred completely under our comparative negligence act. (Ark. Stat. Ann. § 27-1730.1, et seq.) We do not so construe the Tipton and Allen cases, and we do not so construe the act.
A careful reading of the decision in the Tipton case clearly distinguishes it from the case at bar and actually sustains the judgment of the trial court in the case at bar. In the Tipton case, young Tipton was a passenger in an automobile driven by Woolsey. Woolsey drove his automobile into the rear of a truck which negligently drove onto the highway. Tipton was killed in the collision and the Tiptons sued the truck company and driver and also sued Woolsey. The jury found that Woolsey contributed 20% of the negligence and that the truck driver contributed 80% of the negligence which caused the death of young Tipton, and that the negligence of Woolsey, as well as the negligence of the truck driver, was a proximate cause of the injuries and death. Contributory negligence did not go to the jury. The verdict for Tipton fixed the amount of damages and the trial court reduced the amount by 20% in the judgment against the truck company. It seems that the Tiptons waived their right to any judgment against Woolsey.
Appellants in the Tipton case argued that Tipton assumed the risk of the harm that might come to him through the negligent acts of Woolsey in the operation of the vehicle in which Tipton was riding. In affirming the judgment of the trial court, this court said:
“To adopt the rule which appellants appear to espouse would lead to an illogical and unjust result. It would allow Woolsey (the negligent driver) to recover, but it would deny recovery to the boys who bad no control over the car.
“We are unable to understand how our comparative negligence statute in any way operates to modify or repeal the doctrine of assumption of the risk as it applies to the case under consideration and as it has been uniformly construed by the courts in this and other jurisdictions — that is, a person does not assume the risk of the negligence of a third party and does not assume a risk of which he is not aware. The rule, as applied to cases of this nature is very well stated in 61 C.J.S. Motor Vehicles §486, where appears this statement:
“ ‘A guest’s assumption of risk, in case of a motor vehicle collision, applies only as between the guest and his host, and does not bar recovery from a third person for injuries to which the third person’s negligence proximately contributed, unless the acts of the host, in which the guest acquiesces, operate as the the cause of the collision.’
“There are many authorities and decisions in substantial agreement with the above statement. See: 4 Blashfield, Cyclopedia of Automobile Law and Practice, §2511; Keowen v. Amite Sand & Gravel Co., (La. 1941) 4 So. 2d 79; and Guile v. Greenberg, 192 Minn. 548, 257 N.W. 649.” (Emphasis supplied.)
In the Allen case, the motor had gone dead at night on Canady’s car and he was working on it beside the highway. He directed Mitchum to park his car headed in the opposite direction on Mitchum’s wrong side of the highway and in front of the Canady car so that the lights would shine on the front of the Canady automobile. Mrs. Allen drove into the rear of the Canady automobile. The jury divided the fault in the ratio of 90% to Mrs. Allen and 10% to Mitchum. Canady was the one who had directed and caused the Mitchum auto mobile to be placed on the -wrong side of the highway with the lights burning, and, of course, the negligence on the part of Mitchum was imputed to Canady on the facts of that case, which clearly distinguishes it from the case at bar.
Had Kessell directed Morris in the commission of acts constituting Morris’ 56% of the negligence causing the collision, then that negligence may have been imputed to Kessell even though he did not actually execute the negligent acts himself. But, there is no evidence in the record that Kessell did direct or assist Morris in the commission of Morris’ negligent acts or conduct.
The record does not reveal the disposition made of ajjpellant’s alternative prayer for contribution and appellee has abandoned his cross-appeal in the light of the decision we reach. We conclude that the rule stated, supra, from our decision in Smith Co. v. Tipton should not be abandoned in this case and that the judgment of the trial court should be affirmed.
Affirmed.
George Rose Smith, Brown and Fogleman, JJ., concur. | [
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John A. Fogleman, Justice.
This is an appeal from a judgment holding Act 407 of 1965 [Ark. Stat. Ann. § 80-455 (Supp. 1967)] unconstitutional as violative of Amendment No. Fourteen to the Arkansas Constitution. The suit below involved a three-party action with multiple issues; however, we deem it necessary only to consider the question of the constitutionality of Act 407 because our decision makes it determinative of the case. We agree with the trial court that Act 407 is a local or special law and is, therefore, unconstitutional.
Appellants are the owners and developers of a community known as Eden Isle which is located on the shores of Greers Ferry Reservoir in Cleburne County, Arkansas. If developed as planned, Eden Isle will be a high-standard resort and retirement area with a permanent population of some 1,500 to 2,500 people. Prior to the formation of Greers Ferry Reservoir in 1962, the Eden Isle area was located in the West Side School District in Cleburne County. With the formation of the reservoir, Eden Isle became separated from the main body of the district, although it remained contiguous to the Ileber Springs School District. In order to reach the West Side School District, a child living in Eden Isle would be required to travel a distance of approximately 75 miles round trip daily. The student making the trip travels completely through another school district in order to get to West Side. Therefore, arrangements were made with the Ileber Springs School District for the children of the Eden Isle area to attend there. Subsequently, appellants caused legislation to be introduced in the Legislature which culminated in the pass age of Act No. 407 of 1965, the pertinent portions of which are as follows:
“Hereafter, any portion of a school district in this State which is a part of a school district from which such portion is completely separated by a reservoir formed by any flood control, power, or recreational project constructed, operated, developed, or maintained by the United States of America or any other person, and where to attend school in their own district the pupils of said portion are required to travel a distance of more than twenty (20) miles and pass through another school district or districts, and where the pupils living in such segment were not on January 1, 1964, attending school in the district to which they belong’, but by agreement and arrangement attended school in a school district adjoining such portion of such school district, may be formed into a separate school district or may be annexed to and become a part of said adjoining school district where the pupils have been attending school, upon the filing of a petition ...”
Upon passage several residents of Eden Isle petitioned the Cleburne County Board of Education, pursuant to the act, for the- formation of a separate school district. The petition was denied, and an appeal was taken to the Circuit Court of Cleburne County. Subsequently, a second petition was filed (during the pend-ency of the appeal) praying that Eden Isle be annexed to the Heber Springs School District. This petition was accepted by the Heber Springs School Board and filed with the County Board of Education. Thereafter, both the Heber Springs School District and the Eden Isle petitioners filed a petition for a writ of mandamus against the Cleburne County Clerk. The West Side School District intervened, and the cases were consolidated for trial which was held March 14, 1968. Judgment was entered May 20, 1968, holding, among other things, that Act 407 was unconstitutional.
Amendment 14 to the Arkansas Constitution prohibits the passage of any local or special acts. In Laman, Mayor v. Harrill, 233 Ark. 967, 349 S.W. 2d 814, this court said, “Legislation may be roughly classified as general, special or local. A general law is one that operates upon all counties, cities and towns alike. A law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate and a local law is one that applies to any subdivision or division of the state less the whole.”
The trial court, sitting as a fact finder, found that only one school district presently qualifies under the act — the West Side School District. The court’s finding on this point is supported by the testimony of Mr. Canady who is an employee of the State Board of Education.
The fact that a law is limited in effect to only one or a few classifications does not necessarily condemn it as special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the act. For instance, in LeMaire v. Henderson, 174 Ark. 936, 298 S.W. 327, this court upheld an act which provided for the consolidation of school districts only in counties with 75,000 or more population although only four years before in Simpson v. Matthews, 184 Ark. 213, 40 S.W. 2d 991, we had declared unconstitutional an act which provided for the repair of roads damaged by flood water in those counties with 75,000 population. In both cases the court took judicial notice that only Pulaski County had 75,000 population. In the LeMaire case population was held to be a reasonable classification with regard to the formation of school districts, it being germane to the problems of when or whether to consolidate. But in Simpson we concluded that it was arbitrary and unreasonable to restrict the application of an act concerning the repair of roads to those counties with a certain population. The opinion stated that, “The amendment was intended to prevent arbitrary classification based on no reasonable relation between the subject matter of the limitation and classification made. In determining whether a law was general or local, the Legislature might still make the classification where it was appropriate and germane to the subject and was based upon substantial differences which make one situation different from another.”
In the case before us the applicability of Act 407 is limited in the first instance to those portions of school districts which become cut off from the body of the district by a reservoir and in cases where the students of the portion cut off must travel more than 20 miles through another school district to attend school in their own district. It may well be that such a classification would bear a reasonable relation to the purposes of the act, and not be arbitrary; however, application of the act is restricted to those districts only where students from the area cut off were attending school in an adjoining district on January 1, 1964. This, in effect, makes the application of the act nonprosp.ecti.ve. The limitation to situations arising before 1964, therefore, effectively limits the application of this act to the West Side School District. No reason is given, nor does any appear, why the remedies given by this act should not be applicable to relieve similar situations involving school districts where students began to attend school in an adjoining district after January 1, 1964; and it is our opinion that such a classification is inappropriate and arbitrary and constitutes special or local legislation. See Ark-Ash Lbr. Co. v. Pride & Fairley, 162 Ark. 235, 258 S.W. 335; Whittaker v. Carter, 238 Ark. 1074, 386 S.W. 2d 498; Anderson, Special & Local Acts in Arkansas, 3 Ark. L. Rev. 113.
The judgment is affirmed. | [
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Lyle Brown, Justice.
This litigation stems from a two-vehicle collision. Plaintiff below, E. M. McWilliams, is appellant here. He appeals from his failure to obtain a judgment for damages against R & T Transport, Inc. McWilliams challenges the introduction of alleged hearsay evidence and further contends the verdict was contrary to the law and the evidence.
McWilliams was operating a passenger car. Transport’s driver was operating a tractor-trailer and pulling approximately 50,000 pounds. The tractor was trailing the passenger ear and they were proceeding east on East Third Street (Highway 67) in Hope. Both vehicles were being driven at moderate speeds. McWilliams resides on the south side of East Third and as he was preparing to turn to his right and into his driveway, the tractor’s bumper (left front) made contact with the right rear of the passenger car. The impact caused the McWilliams car to swerve abruptly to the right and into a tree adjacent to the driveway. The McWilliams vehicle was substantially damaged and the driver received personal injuries, for both of which he sought compensation.
McWilliams testified that as he approached the point in the highway where he was to turn, he timely activated his right turn signal; that when he made his turn he did so within about five feet of the right curb line; that he at no time swung to the left to align straight with the driveway; and that when he was about half way through his turn the truck struck his car. Mrs. Springer lives in the second house east of the McWilliams residence and she testified she watched the acci dent from her breakfast room window. She was positive she saw the right turn signal operating.
The truck driver, Owen, testified that he had twenty-five years experience in long distance truck driving and had never had a chargeable accident; that in the east bound lane (stipulated to be twenty feet and eight inches in width) there was ample room to pass McWilliams on the right; that as Owen approached the car, McWilliams was very near the center line with his left turn signal operating; that as Owen came closer, McWilliams moved over the center line which emphasized to Owen that McWilliams was making a left turn. Owen further related that at that moment he started around McWilliams on the latter’s right side; and that at about the same time, McWilliams turned abruptly to his right and in the path of the oncoming truck. Owen was corroborated by his relief driver. With respect to the location of the McWilliams vehicle at the moment of impact, Officer Rowe testified that the car was near the center line.
It will be noted that appellant had two witnesses who testified that the right turn signal was operating, whereas appellee’s two witnesses insisted that the left turn signal was activated. Officer Sinyard, who arrived in a matter of minutes, observed the left signal light operating. McWilliams explained that he turned on that signal after the accident to see if the signals were working.
We have enumerated the critical facts upon which negligence on the part of both drivers could be hinged. We do so because the jury, by general verdict, placed at least a majority of the negligence on McWilliams; and he contends that such a finding is not supported in law and by substantial evidence. As to the law, the jury was instructed on all phases of possible negligence as to both drivers. Those instructions (AMI) are not questioned. As to the evidence, certainly it was con troverted. By its verdict it is apparent that the jury adopted the interpretation of the facts presented by appellee. The evaluation of credibility is the prerogative of the jury, not the trial court or the appellate court. We cannot disturb the findings of fact merely because of apparent contradictions which might appear to us to place appellee’s proof against the weight of the evidence ; we are not permitted to upset the findings unless we can say there is no reasonable probability in favor of appellee’s version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 3.W. 2d 256 (1968). Examining the testimony in light of those rules, it is readily apparent that we cannot say the verdict is unsupported by substantial evidence.
The other point advanced for reversal concerns the admission into evidence of excerpts from the letter of an examining doctor. That was Dr. Bransford of Texarkana, who examined McWilliams after the accident with respect to his hernia; the doctor reduced his findings to letter form. A copy of the letter apparently came into possession of Transport’s counsel by means of discovery. McWilliams testified at the trial that the hernia became painful and that Dr. Bransford thought the pain was due to aggravation from the accident. Dr. Holt of Hope, McWilliams ’ local doctor, testified on direct examination that McWilliams had a hernia prior to the collision and that the impact from the accident could have aggravated that condition. Transport’s counsel, on cross-examination and over objection, was permitted to ask Dr. Holt this question:
Q. Now, my question about Dr. Bransford, if you were made aware that Dr. Bransford had reported in these words: “Cannot really say that the automobile accident aggravated his hernia in any way. It was quite large, and for all intents and purposes, unchanged from Ms physical examination in 1964.” Would that strengthen your belief that you cannot say it was aggravated by the accident?
Dr. Holt replied that he could not definitely attribute aggravation of the hernia to the accident. “All I can say is that he complained of pain following the accident,” referring to pain from the hernia.
Appellant urges us to condemn the admission of the quoted excerpt from Dr. Bransford’s letter as being hearsay. We must reject that plea, even if we agreed that it was hearsay. That is because the identical excerpt was propounded first to McWilliams on cross-examination. The witness examined the letter and conceded the correctness of the quotation. All of that was without objection. At that point the letter was tendered McWilliams’ counsel, preparatory, so we perceive, to making the entire letter an exhibit. McWilliams ’ counsel objected to its introduction and was sustained. However, no complaint was made to the quoted excerpt having been introduced.
In New Empire Ins. Co. v. Taylor, 235 Ark. 758, 362 S.W. 2d 4 (1962), we cited the controlling rule from McCormick on Evidence, p. 126 (1954). Failure to object to incompetent evidence makes it admissible; it becomes a part of the evidence in the case; and it may alone or in part support a verdict. To the same effect, see Consolidated Ind. & Ins. Co. v. Dean, 188 Ark. 835, 68 S.W. 2d 460 (1934), and Shide v. Burns, 163 Ark. 27, 259 S.W. 372 (1924).
Affirmed. | [
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Carleton Harris, Chief Justice.
This case concerns a disputed boundary line. Appellants, Oran James Priddy and wife, purchased Lots 1 and 2, Block 1, and property immediately south of Lot 1, all in Linebarier Subdivision in Ouachita County, Arkansas. The property was purchased from Lloyd and Mildred Bumpass in May, 1967, the Bumpasses having owned the property for some 20 years. Moses Wood and wife, appellees herein, own the adjoining property to the east of appellants’ property, having likewise owned same for a long number of years. Shortly before the sale of the property, Wood and Bumpas discussed the making of a' survey for the purpose of determining the true boundary line . The survey was made by the County Surveyor, and he found that the line extended over and onto the property which the Bumpasses had been using as their own. Subsequently, Wood started construction of a fence on the line established by the surveyor, to which the Priddys objected. The result was litigation in the Chancery Court between appellants and appellees relative to the ownership of the property . On trial, the court held as follows:
“ * * * that in July of 1967 it was agreed between Plaintiffs’ and Defendants’ predecessors in title that Grover Perry, the duly elected, qualified and acting County Surveyor for Ouachita County, should be employed for the purpose of making a survey and determining the location of the boundary line; that said Surveyor was so employed and thereafter made such survey and established said boundary line; that the Plaintiffs and Defendants herein, together with Defendants’ predecessors in title, knew of the survey and the location of the boundary line as established thereby.
“The Court finds that all of the aforementioned parties mutually agreed upon, and established as between themselves, the boundary line, as established by the aforesaid survey, as the boundary line between the property owned by the Plaintiffs and Defendants; that afterwards the parties here in occupied and used their property according to such boundary line * * *
The court then ordered:
“That the lawful boundary line between the lands owned by Plaintiffs and Defendants is the boundary line established by the survey of Grover Perry and agreed upon by the parties; and that each party shall own up to the agreed line as fully as if their respective deeds called for it.”
From such decree, comes this appeal. For reversal it is simply asserted that the court’s findings are against the law and the evidence.
The proof reflects that the Woods and the Bum-passes had lived on these adjoining properties for a long number of years without any dispute as to the property line. According to Grover Perry, County Surveyor for Ouachita County, he was first contacted by Mr. Bumpass to make the survey. Subsequently, this survey was made, and both Mr. Wood and Bumpass were present and assisted in making it. As a result, the property line was moved 20 feet to the west, taking that amount of the land now contended for by Priddy. Perry stated that there was no disagreement between the two men. According to the witness, Bumpass helped measure the line and placed the stobs; both accepted the survey. Perry stated that he had subsequently viewed the premises, and the fence posts had been placed by Wood on the section line, and in accordance with the survey.
Wood testified that the Bumpasses had been using the 20 feet as long as he had lived there. “We were neighbors and I told them to feel free to use it. Mr. Bumpass and I never had any dispute and I told him he could use my property anytime.” The witness said that Bumpass stated that he (Bumpass) was not claiming anything except what his deed called for; the two agreed to have the survey made, and Bumpass said that he would accept the Perry survey as the true line. Bumpass, according to Wood’s evidence, indicated no dissatisfaction, and accepted the line as established. He said that when the Priddys moved onto the Bumpass property, the stakes marking the line were visible; that he (Wood), welcomed the Priddys as neighbors, and told them that they were welcome to use the property as the Bumpasses had done; a few days later, the stake that he had set in the driveway was pulled up, and he was subsequently interfered with in erecting a fence along the line. According to the survey, the Bumpass garage was partly on the Woods’ property, and this garage was moved farther over on the Bumpass land. Wood took possession of the property 15 or 20 days later.
Mr. Bumpass did not testify, but Mrs. Bumpass stated that she and her husband had occupied the disputed strip since living on the premises; that she had planted flowers and fruit trees in this area; that Mr. Bumpass had placed a fence on what they had considered to be the line, and this fence had separated the Bumpass and Wood properties for 7 or 8 years. As to the survey, she told the court:
“My husband told me that Mose had gone over to the First Federal and told them that the garage was on his property. My husband went out to the fence and asked Mose about it and my husband said to Mose, I understand you are claiming part of this land over here and Mose said, yes. Then Mose told him that he would like to have it surveyed because he didn’t think our fence was on the section line and my husband told Mose that if he was willing to pay for the survey to go ahead. My husband said if you are willing to pay for the survey and it don’t cost me anything, then I am willing to move my fence if I don’t lose any land.”
The Priddys also offered evidence that the Perry survey was in error. However, we think other facts are controlling in tlie litigation, and there is no need to discuss this testimony.
Certainly, appellants cannot rely upon adverse possession by Bumpass to establish a claim to the land, for the evidence does not substantiate such a claim. Wood testified that Bumpass stated that he did not want any land except “what his deed called for,” and this statement was not denied by Bumpass. In addition, the testimony of Wood as to the agreement relative to the survey is supported by Perry. This evidence was not disputed by Bumpass. Of course, if Bumpass had been making a claim to the disputed 20 feet by adverse possession, he would never have agreed to accept the survey line (even with the provision that Mrs. Bumpass said her husband made). It is very noticeable that both Mr. and Mrs. Bumpass were willing for their garage to be moved because the survey showed a portion of the Bumpass garage protruding upon the disputed strip; this was also known by the Priddys; in fact, the garage was moved before the appellants occupied the Bumpass property, and was placed in a location approved by the Priddys.
Appellants devote one paragraph to arguing that Mrs. Bumpass was the actual owner of Lot 1, and that she made no agreement. From appellant’s brief:
“With regard to the evidence, Mildred Bum-pass the owner of Lot 1 of the Linebarier Subdivision and the lot most affected by the movement of the boundary line in question , testified that she at time made any agreement with appellee Moses Wood relative to the movement.of the boundary line and that she owned the property in her own name and at no time authorized anyone to make any agreement with the appellees.”
We are not impressed with this asseveration. It is obvious from her testimony, heretofore quoted, that she knew about the survey, and certainly she knew that the garage was moved on account of the result of that survey. This was apparently done with her permission; at least, the record does not disclose any objection upon her part. These actions, coupled with the pertinent Arkansas Statute, prevent any conclusion of merit on the contention. Ark. Stat. Ann. § 55-412 (1947) provides that where a married woman permits her husband to have the custody, control, and management of her separate property, there is a presumption that the husband is acting as the agent of the wife . Also, see Fletcher v. Dunn, 188 Ark. 734, 67 S.W. 2d 579. ’ In the present case, the arrangements for the sale to the Priddys were apparently handled by Mr. Bumpass, including (according to Perry) the participation of Bumpass in obtaining the surveyor and assisting in running the line.
The record reflects that Mr. Priddy was entirely aware of the survey and the location of the stobs on the survey line before he moved onto the property. He was also cognizant of the moving of the garage. Prom the record:
“Q. When did you and your family first move onto this property?
A. It was sometime in July.
Q. Had the garage been moved prior to that time, Mr. Priddy?
A. Yes.
Q. Did you know beforehand that it had been moved?
A. Yes.
Q. Did you or your wife or anyone on your behalf instruct where to move that garage, where it should be placed?
A. Yes.
Q. Did you object to Mr. Wood or anyone else about moving- the gar age?
A. No.”
He subsequently said that lie “never did recognize the stobs as a boundary line,” and that he had.no objection to the garage being moved as he had not intended to use it as a garage.
To summarize, it is evident that there was uncertainty as to the true location of the boundary line. There was sufficient evidence of an agreement between the parties to support such a finding by the Chancellor, and finally, Wood took possession of the strip in controversy. The fact that the survey was made and the agreement reached only a short time prior to the dispute is of no importance. In Smith v. Mefford, 243 Ark. 561, 420 S.W. 848, we upheld the Chancellor in finding that a boundary line had been agreed upon though appellant, after entering into an agreement, changed his mind two days later and “called off” the agreement.
We are unable to say that the Chancellor’s holding, in defining the boundary lines to which the deeds extended, was against the preponderance of the evidence.
Affirmed.
Actually, to make the purchase, appellants applied for a loan to the First Federal Savings and Loan Association, but the latter would not approve a loan until the land was surveyed.
Suit was filed by appellees.
No deeds to establish ownership were introduced into evidence.
This presumption, of course, can be overcome by evidence. | [
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J. Fred Jones, Justice.
The appellant, Mortimer Jackson Caldwell, was tried before a jury in the Phillips County Circuit Court on information filed by the prosecuting attorney charging him with forgery and uttering. He was convicted of the crimes as charged and was sentenced to five years in the penitentiary on each count. On appeal to this court appellant relies on the following points for reversal:
“The evidence introduced at the trial was insufficient to prove the Defendant guilty beyond a reasonable doubt and was insufficient to support the verdict of the jury.
“The Court should have granted the Defendant’s request for new counsel.”
The record before ns reveals that on the night of February 14, 1968, the Dixie Furniture Company in Marvell, Arkansas was burglarized and among the items taken was a check for $300.00 from Helena Federal Savings & Loan to Roy Cope as payee. Cope had given the check to the furniture company in the purchase of a television set and had endorsed the check. This check was subsequently cashed at a drive-in window of the Helena National Bank and at the trial the bank teller who cashed the cheek, positively identified Caldwell as the individual who presented the check at the teller’s window. This witness testified that appellant Caldwell identified himself as James Marvin Graves by use of an Alabama driver’s license, issued to James Marvin Graves; that the appellant explained to her that he had sold an automobile to Cope and that the appellant endorsed the check as J. M. Graves in her presence and received cash in exchange for the check. This evidence standing alone is amply sufficient to sustain the conviction, and disposes of appellant’s first point.
As to appellant’s second point, an attorney was appointed by the trial court to assist the appellant in his defense. At the close of the State’s evidence, the appellant stated that he was dissatisfied with the services of his attorney and requested the court to appoint another attorney to represent him. Appellant insisted that one Lonnie Charles McGowen, and not he, had actually cashed the creek and that his attorney had failed to call as a witness a teller at Phillips National Bank who would testify that McGowen had presented the check to that bank in an effort to cash it before McGowen did cash the check at Helena National. The court refused the request for a change in appointed counsel and explained to the appellant that only the State’s witnesses had testified at this point. McGowen was called as a witness for appellant and testified that he first became acquainted with the appellant in Birmingham, Alabama. McG-owen testified that he escaped from jail in Montgomery, Alabama on December 22, and his wife borrowed appellant’s automobile for the trip to Arkansas. McGowen testified that a boy named Richard Calloway came to Arkansas with him and his wife and that he and Calloway committed eight burglaries in Arkansas including the one at Dixie Furniture Company on February 14. He testified that just prior to February 14, he called the appellant in Alabama to come get his automobile and that the defendant arrived on the 14th. He testified that Calloway assisted in the burglary of the furniture store on the night of February 14, and that he hasn’t seen Calloway since that time and does not know where he is. McGowen testified that he took the check in question, along with other items, from the safe in the Dixie Furniture Company burglary and that he and not Caldwell cashed the check. He testified that he first presented the check to Phillips National Bank identifying himself as Graves by use of the Alabama driver’s license which had been sent to him by Graves. McGowen testified that at his request, appellant drove him, in appellant’s automobile, to the drive-in window of the Helena National Bank where he, and not the appellant, endorsed and cashed the check. He testified that he was sitting on the right side in the front seat of the automobile when he endorsed and cashed the check: that the drive-in hank teller window was on the left and that he just simply leaned over and cashed the check and that the appellant didn’t know what was going on. McGowen identified Leona Trainor as the Phillips National Bank teller to whom he first presented the check. Leona Trainor testified that she did not recall the incident and did not remember ever having seen McGowen before she saw him in court.
McGowen. had entered pleas of gnilty to burglary and larceny and was under sentence at the time of the trial. The jury chose to believe the testimony of Mary Ruth Hallowell, the National Bank teller who cashed the check and positively identified the appellant as the one who presented and endorsed it. This the jury was entitled to do, and finding no error in the trial court’s refusal of appellant’s request for different counsel, the judgment of the trial court is affirmed.
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George Rose Smith, Justice.
This suit was brought by the appellants, Chester and Lorene Morgan, to quiet their title to a 440-acre tract of land in Sharp county. The defendant, Paul Downs, asserted title to the land by adverse possession. The chancellor entered a decree for the defendant upon a finding that the plaintiffs had failed to prove their title by a preponderance of the evidence.
From the abstracts and briefs we are unable to say with confidence that the chancellor was right in holding that the Morgans failed to prove their record title. It it our rule, however, that on trial de novo a chancery decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion. Culberhouse v. Hawthorne, 107 Ark. 462, 156 S.W. 421 (1913). Under that rule the decree must be affirmed, because the appellee’s proof established his title by adverse possession. Although it is true, as the appellants insist, that Downs did not prove color of title to the entire 440 acres, that fact is immaterial if he established Ms actual adverse possession of the property for a period of seven years or more. Ferguson v. Peden, 33 Ark. 150 (1878). Where there is actual physical possession of the property for the statutory period, color of title is not required for the investiture of title.
Chester Morgan admitted on the witness stand that he had not had possession of the land in any way; so the question is whether Downs’s proof sufficiently established his claim of title by adverse possession. We are convinced by our study of the record that he met that burden of proof.
During the pivotal years the tract was, according to the weight of the testimony, completely enclosed, mainly by a fence and to some extent by a bluff that served the same purpose as a fence. Several of Downs’s employees — Vernon Coggin, Truman Wiles, Claud Turner, Herbert Wilson, and Veri Chism — testified that the fence around the land had been maintained for from seven to fifteen years preceding the lawsuit. Three of those witnesses- — -Turner, Wilson, and Chism — testified that they had “ridden” the fence for more than seven years, checking upon its condition every week or two and making repairs as they were needed. There is some proof to the contrary, but the testimony of Downs’s witnesses on this point is decidedly more convincing than that of the Morgans.
Downs, in addition to keeping the land enclosed, used it for pasturing cattle. Coggin, Wiles, Turner, Wilson, Horace Phelps, and Earl Estes all testified that the tract had been used by Downs for many years as a pasture for his cattle. Turner and Wilson both stated that Downs had kept about 125 head of cattle on the land. There was also proof that Downs had caused timber to be cut from the land from time to time.
To sum up, Downs offered the testimony of no fewer than ten witnesses, including the father of the plaintiff Chester Morgan, on the issue of adverse pos session. That convincing array of witnesses was opposed by only three persons who testified for the Morgans. One of those three was Chester Morgan himself ; another was his father-in-law. Although the chancellor did not find it necessary to determine the issue of adverse possession, we are convinced by the record that the appellee is entitled to prevail on that question alone, without regard to the appellants’ proof of title.
The appellants also argued that part of the land enclosed by Downs’s fence was owned by other persons and was in turn enclosed by inner cross-fences. Even so, Downs’s fence put the Morgans on notice of his his-tile occupancy. Burns v. Mims, 224 Ark. 776, 276 S.W. 2d 76 (1955).
Affirmed.
Byrd, J., not participating.
Jones, J., dissents. | [
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ROBERT L. BROWN, Justice.
^Petitioner, Michael Lee Sturd, Jr., petitions for a writ of prohibition or, alternatively, a writ of certiorari to halt further proceedings in the trial of his case. We deny the requested relief without prejudice.
On June 4, 2009, Michael Sturd was a passenger in a vehicle, driven by Dewquan Jones, that was stopped on 1-40 in Lonoke County by a state trooper. The trooper searched the vehicle and discovered a gun and marijuana in the vehicle as well as marijuana on Sturd’s person. Sturd was originally charged in CR 2009-225 in Lo-noke County Circuit Court with simultaneous possession of drugs and a firearm, possession of a controlled substance with intent to deliver, and misdemeanor possession of a controlled substance. The State submitted a motion to nol-pros the simultaneous-possession-of-drugs-and-a-firearm charge, which was granted by the circuit court at a hearing held on October 26, 2009. The court then accepted Ra plea agreement, negotiated by the prosecutor and Sturd’s counsel, whereby Sturd agreed to plead guilty to possession of a controlled substance with intent to deliver and misdemeanor possession of a controlled substance. The sentencing recommendation was sixty months’ probation with thirty-six months supervised, in addition to $1345 in payments and fees.
After Sturd entered his plea, he voluntarily testified at the trial of Dewquan Jones, his codefendant in CR 2009-225, and made potentially incriminating statements concerning his ownership of the gun found in the car. Jones’s trial resulted in a mistrial. On November 9, 2009, the State refiled an information charging Sturd with simultaneous possession of drugs and a firearm. On February 22, 2010, Sturd moved to dismiss the felony information. He asserted that the plea agreement entered into between himself and the State was intended to unconditionally dismiss the charge of simultaneous possession of drugs and a firearm, if he agreed to plead guilty to possession of a controlled substance with intent to deliver and misdemeanor possession of a controlled substance. The circuit court denied appellant’s motion to dismiss the felony information.
On March 8, 2010, Sturd moved for reconsideration of the order denying his motion to dismiss the criminal information. The circuit court denied this motion and entered its order on April 22, 2010. Sturd had previously filed a notice of appeal, also on March 8, 2010, which, arguably, was deemed filed one day after the order denying reconsideration. See Ark. R.Crim. P. 33.3(b). The timeliness of the notice of appeal is not an issue in the case before us. On April 23, 2010, Sturd filed the petition that is the subject matter of the instant case.
hThis court has made it clear that dismissal of a charge by nolle prosequi does not bar a future prosecution of the case. See State v. Crawford, 373 Ark. 95, 98, 281 S.W.3d 736, 739 (2008); Ark.Code Ann. § 16-89-122 (Repl.2006). However, where an indictment or information is unconditionally dismissed by the prosecuting attorney, this dismissal terminates the proceeding, and the same indictment or information cannot later be reinstated or resumed. See Hatton v. State, 224 Ark. 28, 29, 271 S.W.2d 616, 617 (1954).
Sturd cites this court to State v. Gaddy, 313 Ark. 677, 858 S.W.2d 81 (1993), in support of his argument that the State should not be allowed to refile charges against him after nol-prossing the charge of simultaneous possession of drugs and a firearm. In State v. Gaddy, the State brought an appeal from an order dismissing a felony information that charged Gad-dy with criminal attempt to commit capital murder. Id. at 678, 858 S.W.2d at 82. Gaddy had previously been charged with this offense, along with possession of cocaine with intent to deliver. The prosecutor and defense counsel entered into a plea agreement concerning these two charges whereby the attempted murder charge was nol-prossed and the cocaine charge was dropped to mere possession. There was also a sentence recommendation for three years of probation and a $200 fíne.
The parties appeared before the court to present the plea agreement, and the following colloquy ensued:
The Court: I have a plea statement here and there’s a recommendation.
[tPROSECUTOR: Your honor, that’s correct. The State would have a couple of preliminary motions as to Mr. Gaddy if you would like for me to take them up now.
The Court: Yes, I wish you would please.
Prosecutor: The State would move in 91-2562 to nol pros.
The Court: All right.
Prosecutor: And in 91-1734, State would amend Count 1 to be possession of cocaine rather than possession with intent to deliver.
After the prosecutor summarized the facts, the following occurred:
The Court: All right. And the recommendation is three years probation. I’m just a little surprised by that on these facts? The officers agreed to it?
Prosecutor: Yes, Your Honor, they did.
Defense Counsel: Well—
The Court: No, you don’t need to approach.
Defense Counsel: Well, I was going to tell you why.
The Court: Well I understand that’s not necessary. I’ll accept the plea or the recommendation. Okay. Mr. Gaddy, this is your understanding of the disposition of the case, what you’ve set here, three years probation, two hundred dollar fíne and costs and ex-pungement under Act 3467? Do you understand that sir?
KMr. Gaddy: Yes.
The Court: And that’s what you agreed to do?
Mr. Gaddy: Uh huh.
The Court: Okay. I’m going to grant, carry out your motion to grant the nol pros and I’ve done that and I’m going to grant the motion to reduce this to possession upon acceptance of your plea of guilty. Let me ask you to raise your right hand please, Mr. Gad-dy.
Gaddy, 313 Ark. at 678-79, 858 S.W.2d at 82-83.
The State argued in Gaddy that the record did not establish that the plea of guilty to possession of cocaine was expressly contingent upon the entry of nolle prosequi on the attempted-murder charge. Id. at 680, 858 S.W.2d at 83. This court acknowledged that the record did not expressly contain an assertion that the attempted-murder charge was dropped as a condition of the agreement. However, we found that this was “readily implicit in the record of those proceedings.” , This court went further and said we “would be hard pressed to sustain the [State’s] argument even if we had nothing more than the brief excerpt quoted above” and that “[a] fair reading of the record permits no inference that these developments were unrelated.” Id. at 680-81, 858 S.W.2d at 83. Additionally, the prosecutor assigned to Gaddy’s cases testified that “[t]he agreement was to dispose of both his cases ... a final resolution.” Id. at 681, 858 S.W.2d at 83. She also stated that she never anticipated either of the charges ever being refiled; otherwise she would have sought an outright dismissal of the attempted-murder charge rather than the more customary nolle prosequi.
tfn the instant case, Sturd was charged with simultaneous possession of drugs and a firearm, possession of a controlled substance with intent to deliver, and misdemeanor possession of a controlled substance. A plea agreement was accepted by the court. Relevant portions of that hearing are set out below.
The Court: Could you read the charges against him, please.
Prosecutor: Your Honor, the State has a motion to nol pros the Simultaneous Possession of Drugs and Firearms. He is charged with Possession of Controlled Substance, Marijuana, with Intent to Deliver a C Felony; Possession of a Controlled Substance, Class A Misdemeanor.
The Court: Okay. I will go ahead and we will nol pros the Simultaneous Possession.
Prosecutor: Thank you, Your Honor.
The Court: Okay. Class C Felony and a Class A Misdemeanor. Sir, is that what you’re pleading guilty to?
Defendant: Yes, ma’am.
The Court: Are you entering this guilty plea voluntarily, knowingly, and freely?
Defendant: I mean, like I said, I’m entering the guilty plea because my marijuana charge in my shoe, but the other charges, I’m not pleading guilty to that.
The Court: You’re not pleading guilty to Possession of Controlled Substance, Marijuana, with Intent to Deliver
^Defendant: No, ma’am, I’m not.
The Court: I’m not accepting this plea agreement.
Defense Counsel: Judge, Mr. Sturd, I think he became confused and I think he’s back up here ready to assert that he’s pleading guilty to both charges; is that correct?
Defendant: Possession with Intent to— not the drugs and firearms.
The Court: That’s been nol prossed.
Defendant: Yeah.
Defense Counsel: The other two charges.
Defendant: Yeah.
Defense Counsel.- Yes, ma’am.
Defendant: Yes, sir. Yes, ma’am.
The Court: Mr. Sturd, there’s a Possession of a Controlled Substance, Marijuana, with Intent to Deliver, which is a Class C Felony; Possession of a Controlled Substance, Marijuana, a Class A Misdemeanor. Now I must understand. Are you pleading guilty—
Defendant: Yes,—
The Court: —to both of those?
Defendant: —yes, ma’am.
The COURT: Freely, knowingly, and voluntarily?
Defendant: Yes, ma’am.
kAs was the case in Gaddy, the transcript of the hearing does not contain an explicit statement that the simultaneous-possession charge being nol-prossed was a condition of the plea agreement. The motion to nol-pros the simultaneous-possession charge, nonetheless, was presented with the plea agreement in a very similar manner as it was in Gaddy.
There is a critical distinction, however, between the instant case and Gaddy that concerns the testimony of the prosecutors. In Gaddy, the prosecutor testified that “she did not anticipate either of the charges ever being refiled ... or she would have asked that case No. 91-2562 be dismissed outright, rather than the more customary nolle prosequi.” 313 Ark. at 681, 858 S.W.2d at 83. In the case before us, the prosecutor remarked at the pretrial hearing that the State had determined, based on the evidence, that the best outcome they could envision was to charge Sturd with possession of a controlled substance with intent to deliver since he was the passenger in the vehicle and, at that time, they had no evidence he was in possession of the firearm. The prosecutor further stated that the decision was made to take a guilty plea from Sturd on possession with intent, but no immunity was given to him as to any future prosecution in this case and nothing was said on the record about the nol-pros being an unconditional dismissal.
Hence, although the transcript of the plea hearing in the instant case is similar to the one in Gaddy, that transcript is not the only evidence contained in the record. The record | flalso contains the testimony of the prosecutor who, unlike the prosecutor in Gaddy, does not assert that the nolle prosequi of the charge was an unconditional dismissal.
A second case from this court which is cited by the parties is State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008). The Crawford case stands for the proposition that in order for a defendant to be relieved from all liability for a particular offense, the record must show that the dismissal, or nolle prosequi of that offense, was intended to be an unconditional dismissal of those charges contingent on a guilty plea on other charges. In that case, Crawford was charged with one felony count of possession of a controlled substance with intent to deliver and 163 misdemeanor counts of cruelty to animals. The circuit judge accepted a plea agreement where Crawford pled guilty to the misdemeanor charges, and the State nol-prossed the felony charge. Crawford received a twelvemonth suspended sentence, contingent upon her compliance with a number of conditions. When Crawford failed to comply with the conditions of her suspended sentence, the State refiled the felony charge for possession with intent. The circuit judge granted Crawford’s motion to dismiss, citing this court’s decision in State v. Gaddy.
We reversed the decision of the circuit court in the Crawford case and did so because the record did not reflect that “the nolle prosequi was an unconditional dismissal of the felony information against Crawford. Neither [did] the record reflect that the nolle prosequi was a final disposition of the case.” 373 Ark. at 98-99, 281 S.W.3d at 739. This court distinguished Crawford’s case from State v. Gaddy, stating that the plea agreement in Gaddy 110was contingent upon the State nol-pross-ing one of the charges and that the nolle prosequi was intended to be a final resolution of the case. We further distinguished Crawford’s circumstances from those in Hatton v. State, where the nolle prosequi order that was entered specifically discharged the defendant from all further liability. Noting that both Gaddy and Hatton were inapplicable to the Crawford facts, this court concluded that “the State was free to bring a subsequent prosecution on the felony charge.” 373 Ark. at 99, 281 S.W.3d at 739.
What is clear from these cases is that the facts and testimony involved are all important in determining whether a mere nol-pros or an unconditional dismissal is involved. We turn then to an analysis of the specific petition for extraordinary relief in this case.
This court has repeatedly stated that a writ of prohibition is extraordinary relief that is appropriate only when the circuit court is wholly without jurisdiction. See Hobbs v. Reynolds, 375 Ark. 313, 315, 289 S.W.3d 917, 919 (2008) (citing International Paper Co. v. Clark County Circuit Court, 375 Ark. 127, 289 S.W.3d 103 (2008)); Allen v. Circuit Court of Pulaski County, 2009 Ark. 167, at 9, 303 S.W.3d 70, 76. Our standard of review for writs of prohibition is fixed:
The writ is appropriate only when there is no other remedy, such as an appeal, available. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than factual question. This court confines its review to the pleadings in the case. Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Additionally, a writ of prohibition is not the appropriate remedy for the denial of a motion to dismiss.
Conner v. Simes, 355 Ark. 422, 425-26, 139 S.W.3d 476, 478 (2003) (emphasis added).
In A writ of certiorari is an extraordinary writ, which “will be granted only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or when the proceedings are erroneous on the face of the record.” Smith v. Fox, 358 Ark. 388, 395, 193 S.W.3d 238, 243 (2004) (citing Arkansas Dep’t of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003)). This writ is appropriate only where it is apparent from the record that there has been a “plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy.” State v. Dawson, 343 Ark. 683, 693, 38 S.W.3d 319, 325 (2001) (citing Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1999)). Certiorari is not to be used “to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority.” Allen, 2009 Ark. at 11, 303 S.W.3d at 76. This court has held that the writ of certiorari may not be used as a substitute for an appeal and that this court cannot review cases in a piecemeal fashion. Conner, 355 Ark. at 429, 139 S.W.3d at 480 (2003). Further, this court has concluded “that an asserted threat of an unwarranted trial is an insufficient basis to conclude that the remedy by appeal is not adequate.” Id. at 428-29, 139 S.W.3d at 480.
Part and parcel of either writ is the prerequisite that it should not be used when facts are in dispute or to review findings of fact. Furthermore, neither extraordinary writ lies when the petitioner has an alternative remedy that is adequate. Sturd argues that the simultaneous-possession-of-drugs-and-a-firearm charge was unconditionally dismissed and, thus, the circuit | iajudge lacked jurisdiction to try that charge. But whether the case was unconditionally dismissed turns on the facts and credibility of the witnesses, which would be the subject for appeal. The State, in addition, points out that at the pending trial on the simultaneous-possession-of-drugs-and-a-firearm charge, Sturd could move to suppress statements he made at his eodefendant’s trial.
All of this convinces this court that an extraordinary writ should not issue in this case. Accordingly, the petition is denied.
Petition denied without prejudice.
. Case No. 91-2562 involved the charge for criminal attempt to commit capital murder.
. Case No. 91-1734 involved the charge for possession of cocaine with intent to deliver. | [
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JIM GUNTER, Justice.
1,Wooten asks this court to recall our mandate and allow him to pursue a second Rule 37 proceeding. He asserts that he meets this court’s stringent criteria for providing this extraordinary relief. Because this is a criminal appeal in which the death penalty has been imposed, and the petitioner is asking this court to recall our mandate, we have jurisdiction pursuant to Ark. Sup.Ct. R. l-2(a)(2) & 5-3(d). We grant the motion to recall the mandate.
Wooten was convicted of capital murder, criminal attempt to commit capital murder, and aggravated assault, and was sentenced to death, thirty years, and six years, respectively. This court affirmed those convictions in Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) (Wooten I). Wooten then hired James Clawson to represent him in postconviction proceedings. On April 21, 1997, Clawson filed on Wooten’s behalf a petition for postconviction relief that was not verified by Wooten. This petition was denied by the circuit court, but this court reversed and remanded for appropriate written findings and an ^evidentiary hearing if necessary pursuant to Rule 37.3. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (Wooten II). In June 2000, the circuit court again denied postconviction relief, and no appeal from that order was filed by Clawson. James Clawson surrendered his law license on June 7, 2001. In re Clawson, 49 S.W.3d 99 (Ark.2001) (per curiam). Alvin Schay was then appointed to represent Wooten, and we granted Wooten’s motion for rule on clerk in his appeal of his denial of postcon-viction relief. See Wooten v. State, 347 Ark. 370, 64 S.W.3d 708 (2002) (Wooten III). This court subsequently affirmed the denial of postconviction relief in Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002) (Wooten IV).
On October 2, 2003, Wooten filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, alleging that both his convictions and sentence were in violation of various provisions of the United States Constitution. Specifically, Wooten asserted that his trial counsel had been constitutionally ineffective for (1) failing to argue, during the guilt phase of his trial, that mental health issues prevented him from formulating the necessary mens rea for capital murder, and (2) failing to present certain mitigating evidence during the sentencing phase of his trial. In an opinion issued September 19, 2006, the district court found Wooten’s arguments without merit and denied the petition for writ of habeas corpus. Wooten v. Norris, No. 5:03cv00370, 2006 WL 2686925 (E.D.Ark. Sept. 19, 2006).
In March 2007, attorney J. Blake Hendrix filed a motion with this court to appear as counsel and also tendered a motion to recall the mandate in Wooten’s case. We denied the [amotion to appear as counsel on April 26, 2007, and made no mention of the tendered motion to recall the mandate. No further action was taken on the case in this court until October 2009; meanwhile, the judgment of the federal district court was affirmed by the Eighth Circuit Court of Appeals on August 26, 2009. Wooten v. Norris, 578 F.3d 767 (8th Cir.2009). In its opinion, the Eighth Circuit noted that the district court had declined to stay the federal case and hold federal proceedings in abeyance pending further exhaustion of state remedies. The court also found that Wooten’s claims in his federal appeal were procedurally defaulted because they had not been presented to the state courts. In sum, the Eighth Circuit found that, while Wooten may be entitled to relief in the form of a recall of the mandate from this court, “this is a case for which the federal courts can provide no relief because of post-conviction counsel’s failure to exhaust the allegedly meritorious claims.” Id. at 785. The court concluded: “Because Wooten’s Motion to Recall and Reopen is not a proper vehicle for exhausting state remedies in Arkansas or creating a state record that might support federal habeas claims, it was proper for the district court to reject his Rule 59(e) motion and his motion to stay federal proceedings.” Id. at 786.
On October 1, 2009, Wooten’s current counsel, which includes three out-of-state attorneys from the Federal Community Defender Office of the Eastern District of Pennsylvania, and local attorney J. Blake Hendrix, filed an application for permission to be appointed as counsel in Wooten’s case. Counsel also tendered a “Motion to Clarify Status of Motion to Recall the Mandate.” We granted counsels’ application for permission to be | appointed as counsel on Wooten’s behalf on November 5, 2009, and on December 10, 2009, we denied the motion to recall the mandate without prejudice and with the right to refile a motion to recall the mandate. On December 28, 2009, another motion to recall the mandate was filed on Wooten’s behalf, and this court decided to submit the motion as a case, which is now presently before the court.
Wooten asserts that this court should recall the mandate in his case and allow him to pursue a second Rule 37 proceeding. He claims that his case satisfies the criteria for recalling the mandate under this court’s precedents in Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006), and Collins v. State, 365 Ark. 411, 231 S.W.3d 717 (2006). In Robbins, the defendant was convicted of capital murder and given the death sentence. Nearly two years after this court affirmed his conviction and sentence, Robbins petitioned this court to reopen his case and alleged that a mistake was made by this court in failing to recognize that the jury was inconsistent in its completion of Verdict Form 2, which deals with mitigating circumstances. According to Robbins, this court reversed a death sentence and remanded for resen-tencing for precisely the same inconsistency in Verdict Form 2 in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). This court explained that we will recall a mandate and reopen a case only in extraordinary circumstances, and in Robbins’s case, there were three specific factors that prompted the decision to recall the mandate: (1) a decision had been cited to the court which was on all fours legally with the issue presented; (2) the dismissal of proceedings in federal court because of unexhausted state-fccourt claims; (3) the appeal was a death case that required heightened scrutiny. The Robbins opinion stressed that the situation was “one of a kind, not to be repeated.” 353 Ark. at 564, 114 S.W.3d at 223.
Wooten argues that the same three considerations enumerated in Robbins require a finding of “extraordinary circumstances” and a recall of the mandate in his case. First, he argues that, like Robbins, he has “arguably meritorious” claims that have not been reviewed by this court, and he has cited this court to a decision, namely the Eighth Circuit opinion discussed above, that shows he has compelling claims for relief. Second, he, like Robbins, was unable to obtain a review of his claims in federal court because his claims had not been addressed in state court. And third, his case, like Robbins, is a death-penalty case where heightened scrutiny is required.
We find that Wooten has misconstrued the meaning of the Robbins criteria for recalling the mandate. First, Wooten misunderstands the first factor, which is a case cited to this court that is “on all fours legally with the issue presented.” Wooten cites the Eighth Circuit opinion as fulfilling this requirement, but Robbins was referring to a recent case handed down by this court, prior to the affirmance of Robbins’s case, that is directly contrary to Robbins’s death sentence. See Robbins, 353 Ark. at 565, 114 S.W.3d at 223. Even the Eighth Circuit opinion explained that, in Robbins, this court “determined that it had the inherent authority and jurisdiction to recall its own mandate in a death-penalty case where a defendant alleged an error that was identical to an error in another capital case for which the same court had recently granted \ (¡relief. ” Wooten v. Norris, 578 F.3d at 783 (emphasis added).
Wooten has also misconstrued the second criteria in Robbins, which is that federal proceedings have been dismissed because of unexhausted state claims. Robbins’s habeas corpus petition was dismissed by the federal district court without prejudice on the basis that Robbins had not exhausted his state remedies, specifically noting that state courts had not examined his inconsistency-in-the-verdicts argument under Willett. In the present case, however, the federal district court denied Wooten’s request to hold federal proceedings in abeyance, and the Eighth Circuit affirmed both that decision and the denial of Wooten’s petition for writ of habeas corpus. So Wooten has clearly failed to meet the second criteria in Robbins. Indeed, the only criteria that Wooten has successfully met under Robbins is that his case is a death-penalty case that requires heightened scrutiny.
In Lee, the defendant was convicted of capital murder and sentenced to death. His conviction and sentence were affirmed by this court, and we also affirmed the circuit court’s later denial of Lee’s petition for postconviction relief under Rule 37. Lee then filed for habeas corpus relief in federal court, and the federal district court determined that it was necessary to hold the petition in abeyance to allow Lee to seek additional recourse in state court. This decision was based on the district court’s concern over possible impairment of Lee’s counsel during the Rule 37 proceedings. Lee then petitioned this court to recall the mandate and | 7reopen post-conviction proceedings, arguing that his Rule 37 counsel was impaired by alcohol use during the time he represented Lee in postconviction proceedings, a fact admitted to by counsel.
In discussing the criteria necessary to establish the extraordinary circumstances that would warrant a recall of the mandate, the Lee opinion enumerated the Robbins factors as follows: (1) the presence of a defect in the appellate process; (2) a dismissal of proceedings in federal court because of unexhausted state court claims; (3) the appeal was a death case that required heightened scrutiny. See Lee, 367 Ark. at 88, 238 S.W.3d at 55. This court held that in Lee’s case, there was a defect in the appellate process: “Certainly, the intoxication and subsequent impairment of Lee’s appointed counsel during the Rule 37 proceedings constitute a defect because of the exacting requirements of Rule 37.5 regarding the appointment of qualified counsel in postconviction proceedings for a person under a sentence of death.” Id., 238 S.W.3d at 55. This court determined that the second factor was also met, as the decision to hold Lee’s federal petition in abeyance, instead of dismissing the petition, was based on a procedural issue that would have resulted in Lee being barred from returning to federal court to refile his petition because of the one-year statute of limitations imposed on habeas petitioners. Thus, we granted Lee’s motion to recall the mandate and remanded the case to lathe circuit court.
In the present case, Wooten asserts that he suffered the same type of “counsel-related ‘defect’” in his Rule 37 proceedings. He argues that he was denied the assistance of qualified counsel because his attorney, James Clawson, was, inter alia, ineligible to practice law, had perpetrated fraud upon both Wooten and the courts, and was “embroiled in his own legal troubles.” He also argues that he meets the second and third criteria as explained in his discussion of Robbins, supra.
Wooten claims that his Rule 37 counsel was, at the time of his representation of Wooten in this case, ineligible to practice law. This is apparently because Clawson was disbarred in Oklahoma in 1993, and Wooten believes that disbarment resulted in an automatic disbarment in Arkansas, too. However, under the rules of professional conduct in effect at the time, that disbarment would be reciprocal and result in his disbarment in Arkansas only upon the filing of the disbarment order with the Committee on Professional Conduct. Section 7(F) of the Procedures Regulating Professional Conduct of Attorneys at Law (1993) provides:
(1) The disbarment or suspension of any person from the practice of law in any other state shall operate as a disbarment or suspension of such person from the practice of law in this State under any license issued to such person by the Arkansas Supreme Court prior to his disbarment in such other state.
(2) Upon presentation of a certified order or other proper document of a tribunal or a corresponding disciplinary authority of another jurisdiction evidencing disbarment or suspension, the Committee shall cause a like sanction to be imposed and shall notify the Clerk of such action. Notice of the Committee’s action shall be sent to the attorney’s mailing address on record with the Clerk.
See also Rules of Professional Conduct, Rule 16 (1993). However, until the time that ^documentation was filed with the Committee and an order was entered, Clawson was still eligible to practice law in Arkansas. This court was not notified of Clawson’s Oklahoma disbarment until 2001, at which time he surrendered his Arkansas license in lieu of being disbarred. So Wooten is mistaken that Clawson was ineligible to practice law at the time of his representation. Additionally, it appears that there was no requirement to report disbarment in another jurisdiction until the most recent amendment to our rules on January 14, 2010. See Procedures Regulating Professional Conduct, Section 14(a) (2010). And finally, as to the second and third criteria under Robbins and repeated in Lee, Wooten has again failed to meet the second criteria.
Finally, in Collins, the defendant was convicted of capital murder and sentenced to death on October 21, 1997. His conviction and sentence were then affirmed by this court on June 3, 1999. Pursuant to Rule 37.5(b)(1), counsel was then appointed to pursue Rule 37 relief, but there was nothing in the record to show that the appointed attorneys were qualified under Rule 37.5. Furthermore, the Rule 37 petition filed with the circuit court on October 12, 1999, was not verified by Collins. Two additional Rule 37 petitions were filed on October 13, 1999, and October 14, 1999, again without verification from Collins. The State filed a response, but no action was ever taken on the petitions. In fact, no action was taken in the case until January 31, 2003, when a new attorney was appointed to represent Collins. Collins also filed several pro se petitions in 2003. A hearing was eventually held on May 20, 2004, at which the parties referred to a petition under Rule 37.5, but no corresponding |inpetition was in the record. The order ultimately denying the Rule 37 petition was presumably based on the hearing, the judge’s notes, and a memorandum prepared by Collins’s counsel summarizing the May 20, 2004 hearing. This court specifically noted that none of the petitions filed since 1999 had complied with Rule 37.5.
In this court’s analysis, we explained that Rule 37.5 provides specific procedures setting out how postconviction relief is to be pursued, including deadlines that must be met, and in this case, there was clearly “a breakdown in the postconviction relief proceedings.” 365 Ark. at 415, 231 S.W.3d at 720. We also noted that, while we have affirmed denial of postconviction relief even if the petition was not verified in cases where the defendant did not receive a sentence of death, a death-penalty case was one which demanded unique attention to procedural safeguards. We therefore remanded the case to circuit court for the appointment of Rule 37.5 qualified counsel and to allow Collins to file a verified petition for postconviction relief that complied with Rule 37.5.
Wooten asserts that there was a similar “breakdown” in his postconviction proceedings because the Rule 37 petition filed by Clawson was never verified or otherwise authorized by Wooten. Therefore, Wooten argues, he should be allowed to proceed with renewed postconviction proceedings that will allow his “compelling claims of constitutional error” to be addressed by the Arkansas courts.
Arkansas Rule of Criminal Procedure 37.1(c) requires that a petition seeking relief Inpursuant to the rule be verified. The verification requirement for a postconviction-relief petition is of substantive importance to prevent perjury. Carey v. State, 268 Ark. 332, 596 S.W.2d 688 (1980). To serve this purpose, a petitioner must execute the verification, and if the petitioner is represented by counsel, counsel may not sign and verify the petition for him. Boyle v. State, 362 Ark. 248, 208 S.W.3d 134 (2005) (per curiam). A trial court cannot consider the issues in a petition which does not comply with the verification requirement of the rule. See Shaw v. State, 363 Ark. 156, 211 S.W.3d 506 (2005) (per curiam).
As noted above, this court will routinely affirm the denial of postconviction relief if the petition is not verified; however, death-penalty cases are afforded unique procedural safeguards. In addition to this court’s ruling in Collins, we have also remanded a Rule 37 appeal for verification when a petition for postconviction relief in a death-penalty case was not properly verified, rather than dismissing the petition. Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006).
We find that, in the present case, the lack of verification constitutes a defect or breakdown in the appellate process that requires a recall of the mandate. While there is no constitutional right to a postconviction proceeding, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999). And while this court has held Rule 37.5 does not govern Wooten’s postconviction review, we have also held that the “intent and purpose” behind the rule should apply. Wooten II, 338 Ark. at 696, 1 S.W.3d at 11. Porter, supra, is instructive in this regard:
In light of the fact that this is a case involving the death penalty and the fact that Rule 37.5 has in effect cured the instant situation from recurring, coupled with the ambiguous circumstances surrounding appellant’s legal representation, and the requirements of due process, we hereby hold that fundamental fairness, in this narrowest of instances where the death penalty is involved, dictates an exception in the present matter to allow appellant to proceed with his Rule 37 petition.
339 Ark. at 19, 2 S.W.3d at 76. While Porter involved an appeal from the denial of postconviction relief on procedural grounds, and not a recall of the mandate, the same reasoning applies to the present case. The fact remains that there has yet to be filed a Rule 37 petition for postcon-viction relief in the circuit court that has been verified by Wooten, which is in direct contravention to the dictates of Rule 37. Therefore, we grant the motion to recall the mandate.
Motion granted.
BROWN, J., concurs.
HANNAH, C.J., and WILLS, J., . dissent.
. As explained in the discussion of Lee v. State, infra, this requirement from Robbins was later expanded to include situations where federal proceedings are held in abeyance so a petitioner may pursue any unex-hausted state claims.
. The changed wording in the first requirement appears to come from this court’s decision in Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004), in which this court clarified that the purpose of recalling the mandate and reopening the case in Robbins was to correct an error in the appellate process, specifically an error that was made during this court’s review, and the recall of the mandate was intended to give this court an opportunity to address an issue that it should have addressed before.
. This verification requirement was a part of the rule at the time Wooten’s Rule 37 proceedings took place. See Ark. R.Crim. P. 37.1(d) (1997).
. Howard also involved an appeal from the denial of postconviction relief, not a recall of the mandate. | [
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ROBERT L. BROWN, Justice.
I, This appeal arises out of an order entered by the Circuit Court of Sebastian County, Greenwood District, granting a declaratory judgment and writ of mandamus and finding appellant, Kenneth Edwards, Jr., ineligible to run in the upcoming mayoral election scheduled for November 2, 2010. The circuit court further ordered that the votes cast for Edwards not be counted. We affirm the circuit court’s order.
The facts are these. Edwards is currently Mayor of Greenwood and is running for reelection in the November 2, 2010 general election. On February 25, 2009, the Greenwood District Judge found Edwards guilty of theft of property in violation of Arkansas Code Annotated section 5-36-103 (Supp.2007). Edwards had been charged with theft for taking three campaign signs in opposition to a tax extension that Edwards supported. Initially, REdwards told police investigators that one sign was taken from Gordon Griffith’s property, one from his own property, and one from the Ware Road property, where he was observed taking the sign by a private citizen. Edwards later admitted that his initial statement was untrue and admitted to police investigators that he took two signs from the property of Wade Dunn and one sign from the property on Ware Road.
The Greenwood District Judge found that Edwards knowingly took or exercised unauthorized control over the signs at the Dunn and Ware Road properties with the purpose of depriving the owners thereof. The district judge further found that Edwards had no legal authority, defense, or justification for the removal. Accordingly, the judgment was entered against Edwards on February 25, 2009. Edwards did not appeal this conviction.
On September 7, 2010, appellee Garry Campbell, a resident and registered voter of Greenwood, filed a complaint in the Circuit Court of Sebastian County, Greenwood District, alleging a preelection challenge to Edwards’s eligibility to run for reelection as the Mayor of Greenwood. Campbell sought a declaratory judgment, a writ of mandamus, and an expedited hearing. His complaint asserted that Edwards’s previous conviction for misdemeanor theft of | aproperty was an “infamous crime,” thus rendering him ineligible to hold office under article 5, section 9 of the Arkansas Constitution. Edwards filed an answer to the complaint.
The circuit court held a hearing on September 28, 2010, where counsel for both parties presented their arguments. At the conclusion of the hearing, the circuit court, citing this court’s decision in State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005), first found that an “infamous crime,” as set out in article 5, section 9 of the Arkansas Constitution, is intended to include crimes involving the elements of dishonesty. The circuit court next found, after relying upon prior decisions of this court addressing whether theft involved dishonesty in the context of impeachment of a witness, that theft is a crime that involves dishonesty. As a result, the circuit court concluded that Edwards was not eligible under article 5, section 9 of the Arkansas Constitution to run for Mayor of Greenwood and ordered that any votes cast for Edwards not be counted.
Edwards filed a timely notice of appeal to this court on September 30, 2010. On October 6, 2010, he moved for expedited review, for an expedited briefing schedule, and for a stay of the circuit court order pending appeal with this court. On October 11, 2010, this court denied Edwards’s motion for a stay but granted his motion for expedited review and established an expedited briefing schedule.
For his sole point on appeal, Edwards contends that the circuit court erred in determining that he was ineligible to run for mayoral office because, under the circumstances of this case, misdemeanor theft of property, the crime for which he was convicted, does not 1 constitute an “infamous crime” within the meaning of article 5, section 9 of the Arkansas Constitution. Edwards urges this court, as an alternative, to consider the totality of the circumstances surrounding the theft charge and conviction and to determine on a case-by-case basis whether a crime fits within the definition of an “infamous crime” under article 5, section 9, rather than adopting a bright-line rule.
Article 5, section 9 of the Arkansas Constitution provides that “[n]o 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.” This appeal involves an interpretation of what is an “infamous crime” in the context of article 5, section 9 of the Arkansas Constitution. We have previously set out the standard of review for cases involving the interpretation of a constitutional provision as follows:
When interpreting the constitution on appeal, our task is to read the laws as they are written, and interpret them in accordance with established principles of constitutional construction. Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002). It is this court’s responsibility to decide what a constitutional provision means, and we will review a lower court’s construction de novo. Id. We are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Daniel v. Jones, (quoting Foster v. Jefferson County Quorum Court, 321 Ark. 105, 108, 321 Ark. 116-A, 901 S.W.2d 809, 810 (1995)).
State v. Oldner, 361 Ark. at 326, 206 S.W.3d at 821-22 (citing Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 720, 120 S.W.3d 525, 537 (2003)).
In 2005, this court, in the case of State v. Oldner, addressed for the first time what constitutes an “infamous crime” for the purpose of removing an elected official from public office due to lack of eligibility under article 5, section 9. 361 Ark. at 323, 206 S.W.3d at 819. When considering how to interpret the meaning of “infamous crime,” we recognized in Old-ner the doctrine of ejusdem generis, which provides that “when general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Id. at 327, 206 S.W.3d at 822 (citing Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998); McKinney v. Robbins, 319 Ark. 596, 892 S.W.2d 502 (1995)). This court also looked in Oldner to the doctrine of noscitur a sociis, which allows for a word to be defined by the words accompanying it.
Based on these rules of interpretation, this court concluded in Oldner that the framers of the Arkansas Constitution intended for an “infamous crime,” when used in article 5, section 9, to include crimes involving elements of deceit and dishonesty. Id. at 327, 206 S.W.3d at 822. Additionally, this court embraced the notion in Oldner that infamous crimes are those that impugn the integrity of the office and directly impact the person’s ability to serve as an elected official. Id. at 332, 206 S.W.3d at 826.
[Also ⅛ Oldner, this court cited Professor LaFave’s treatise on Criminal Law, which explained:
Where the purpose was in former times to render a witness incompetent (or today to authorize the impeachment of the witness), the term “infamous” properly has reference to those crimes involving fraud or dishonesty or the obstruction of justice (sometimes called crimen falsi). Where the term is used in connection with disbarment or disqualification to hold office, vote or serve on a jury, it generally has a similar meaning.
Id. at 830, 206 S.W.3d at 824 (citing Wayne R. LaFave, Substantive Criminal Law § 1.6(d) (2d ed. 2003)). It is clear from this court’s discussion in Oldner that this court has concluded that an “infamous crime” is one that includes elements of deceit or dishonesty.
Yet, this court has not ruled on the specific question on appeal, which is whether misdemeanor theft of property falls within the meaning of an “infamous crime” under article 5, section 9, thus rendering a person ineligible to run for public office. We did, however, early on, hold that calling a man a thief amounted to a charge of larceny, “which is an infamous crime.” Gaines v. Belding, 56 Ark. 100, 100, 19 S.W. 236, 236 (1892). We have also considered theft to be a crime involving dishonesty in the context of impeachment under Arkansas Rules of Evidence 608 and 609. See, e.g., Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994); Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); James v. State, 274 Ark. 162, 622 S.W.2d 669 (1981).
This court has made a distinction between crimes indicative of untruthfulness under Arkansas Rule of Evidence 608 and those indicative of dishonesty. See Rhodes, 276 Ark. at |7207, 634 S.W.2d at 110. In Rhodes, this court found that the theft in that case, shoplifting, while probative of dishonesty, did not directly indicate an impairment of the trait for truthfulness. Id. at 209, 634 S.W.2d at 111. Likewise, in Laughlin, this court reiterated that under Rule 608(b), inquiries on cross-examination may be made into specific instances of conduct that are clearly probative of truthfulness or untruthfulness but not into conduct that is merely probative of dishonesty. 316 Ark. at 498, 872 S.W.2d at 853. Thus, this court refused to allow cross-examination into specific instances of theft, which were indicative of dishonesty, but did not necessarily evidence a proclivity for untruthfulness. Id. at 499, 872 S.W.2d at 854.
In the context of impeachment based on prior convictions involving dishonesty or false statements under Arkansas Rule of Evidence 609, this court has also specifically held that defendants may be impeached with prior convictions for theft because theft is a crime involving dishonesty. See Floyd, 278 Ark. at 89, 643 S.W.2d at 556-57 (finding that because the defendant’s prior convictions for burglary and theft were crimes involving dishonesty, they were admissible to impeach under Rule 609); see also James, 274 Ark. at 164, 622 S.W.2d at 670 (holding that the defendant’s prior convictions for grand larceny, theft, and forgery were all crimes involving dishonesty and therefore admissible under Rule 609 without weighing the prejudicial effect).
Despite this authority, Edwards makes several arguments in support of his point on appeal. He first claims that there is a strong public policy in favor of preserving eligibility to hold public office. He urges this court to consider all of the circumstances surrounding the 18theft charge and his subsequent conviction, including his argument that he thought at the time and still does today that he had the legal authority to remove the signs. Hence, he contends that what he did does not constitute an “infamous crime” within the meaning of article 5, section 9. He further argues that his conviction for misdemeanor theft of property for three campaign signs is not serious enough to be deemed an “infamous crime.” Campbell counters that Edwards’s theft-of-property conviction should preclude him from holding office because this court has already determined that infamous crimes involve elements of dishonesty and determined that theft is a crime involving dishonesty. Campbell further argues against adopting a case-by-case analysis and considering the facts and arguments surrounding the conviction because that would be a collateral attack on Edwards’s final judgment for misdemean- or theft.
Campbell is correct. This court has already determined in Oldner that an “infamous crime” involves dishonesty. 861 Ark. at 827, 206 S.W.3d at 822. This court, however, has not addressed the precise issue of whether theft is an “infamous crime” for the purposes of preelection eligibility under article 5, section 9. We have done so in the context of impeachment under the rules of evidence and analogized that to a person’s eligibility to hold or run for public office. See id. at 330, 206 S.W.3d at 824 (citing Wayne R. LaFave, Substantive Criminal Law § 1.6(d) (2d ed.2003)). Furthermore, this court has consistently found that a theft conviction involves dishonesty and is therefore admissible to impeach under Arkansas Rule of Evidence 609. See Floyd, 278 Ark. at 89, 643 S.W.2d at 556-57; see also James, 274 Ark. at 164, 622 S.W.2d at 670. All of this leads ineluctably to a conclusion that theft constitutes an “infamous crime” in the context of article 5, section 9 of the Arkansas Constitution.
We further do not agree with Edwards’s contention that this court should consider the degree of his theft offense and the resulting punishment to determine whether the crime was infamous. This court in Oldner rejected this argument when it found that a crime is not considered infamous based on the available punishment but rather is considered infamous based on the underlying nature of that crime. 361 Ark. at 329, 206 S.W.3d at 823.
The crime of theft, for which Edwards was convicted, is committed when one knowingly
(1) Takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner of the property; or
(2) Obtains the property of another person, by deception or by threat, with the purpose of depriving the owner of the property.
Ark.Code Ann. § 5-36-103(a). The severity of the punishment varies with the value of the property taken, the type of property taken, or the threats used in the taking of the property. See id. § 5-36-103(b). The underlying elements of the crime, however, remain the same, no matter how severe the theft was or the punishment imposed. In short, a person exhibits dishonesty when he or she knowingly takes unauthorized control of someone else’s property or obtains that property through deception or threat with the purpose of depriving the owner |inof the property, whether three campaign signs worth two dollars are taken or a car worth thirty thousand dollars is taken.
Edwards asks this court not to adopt a bright-line rule for all theft convictions but to consider the circumstances surrounding the theft and his conviction. He asks us specifically to reconsider his arguments that the people who placed the signs opposed his position on the tax extension and the signs were placed to taunt him and that he believed at the time that he had the legal authority to remove the signs because he thought they were in public right-of-ways. These arguments were presented to the district judge, who found them unpersuasive and concluded that Edwards had violated the statute. Edwards did not appeal this conviction for theft of property. The general rule is that a defendant who does not appeal a criminal conviction cannot collaterally attack a final judgment. See Camp v. State, 364 Ark. 459, 463, 221 S.W.3d 365, 367 (2006). To have this court reconsider these arguments now, and, in light of them, find that his theft conviction and its punishment are not serious enough to be considered an “infamous crime” would not only run contrary to our decision in Oldner but would be in the nature of a collateral attack on the final judgment rendered by the district court.
We reject Edwards’s argument that this court should consider reargument regarding his conviction in cases such as this. Edwards is a public official who perpetrated a theft while in office and who now seeks to be reelected to the same position of public trust. By his actions, he has impugned the integrity of that office. We hold that misdemeanor theft is a Incrime of dishonesty and, as such, fits readily within the classification of an “infamous crime.” For these reasons, we affirm the circuit court’s order declaring Edwards to be ineligible to stand for election for the position of Mayor of Greenwood and its order that the votes cast for Edwards on November 2, 2010, not be counted.
Affirmed.
The mandate in this case will issue immediately.-
. Gordon Griffith was with Edwards when he took the signs and was also charged with misdemeanor theft of property. The district judge, however, found Griffith not guilty because, although he aided and assisted in the theft of the signs, he did so either (1) without the purpose of depriving the owners of the signs; (2) without the purpose of committing a crime; or (3) engaged in the conduct believing that it did not, as a matter of law, constitute an offense, because he acted in reasonable reliance upon an official statement of the law made by a public official, Mayor Edwards, who was charged by law with responsibility for the interpretation or administration of the law defining the offense. | [
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DONALD L. CORBIN, Justice.
I,Appellant, attorney Teresa Bloodman, appeals the order of the Mississippi County Circuit Court fining her $1,500 and holding her in contempt for obtaining the court’s signature on an amended judgment and commitment order by misrepresenting the State’s consent thereto. Jurisdiction is properly in this court pursuant to Ark. Sup.Ct. R. 1 — 2(a)(5) (2009), as an appeal involving the discipline of attorneys-at-law and the regulation of the practice of law. On appeal, Bloodman asserts that the circuit court erred in holding her in criminal contempt without notice and opportunity to be heard and that there was insufficient evidence to support the finding of contempt. We find merit to the first argument and therefore reverse and remand.
The facts giving rise to the finding of contempt occurred during Bloodman’s representation of Jonathan Laprese Stevenson in postconviction proceedings following his conviction for rape in Mississippi County on December 6, 2007. During her post-conviction | ¡representation of Stevenson, Bloodman filed on September 16, 2008, a motion to amend the judgment and commitment order to reflect the range of dates on which Stevenson committed the rape, to reflect that the sentence was a departure from the sentencing grid, and to clarify the requirement of restitution by indicating the amount and time for payments. The motion contained a statement that “[t]he Prosecuting Attorney had been advised by letter and telephonic communication of the need to correct the Judgment and Commitment Order.” The motion also contained a certificate of service in which Bloodman certified that the deputy prosecuting attorney, Catherine Dean, had been served with a copy of the motion by facsimile and regular mail. After a series of events that were the subject of an inquiry hearing below that led to the finding of contempt currently on appeal, the circuit court granted the motion and entered an amended judgment and commitment order on November 12,2008.
Thereafter, Dean wrote a letter to the circuit court dated February 3, 2009, in which she informed the court that it had come to her attention “quite accidentally” that the judgment and commitment order in the Stevenson case “had been amended without any | ^notice to or opportunity to be heard by the State,” and that the original judgment and commitment order was no longer in the court file. The deputy prosecutor’s letter stated that although Stevenson had filed a motion to amend the judgment and certified that a copy had been served upon the prosecutor, the prosecutor’s office had never received a copy of the motion. The deputy prosecutor closed her letter by stating that she “would appreciate [the court] looking into this matter.”
By letter addressed to both Dean and Bloodman dated February 5, 2009, the court responded to Dean’s letter, stating that the court had a vague recollection of Bloodman bringing the amended judgment and commitment order in chambers and that the court had the impression that the State was in agreement, but that the court’s memory was far from perfect on the matter. Accordingly, the court proposed “to have a hearing to determine precisely what happened as soon as practicable.” The court proposed three dates for the hearing, and instructed the two attorneys to “discuss it and decide which of these three days works best for your schedules. Unless I hear otherwise, I intend to hear it on February 18[, 2009].”
Bloodman responded by letter to Dean dated February 11, 2009, expressing Bloodman’s scheduling conflicts and attaching copies of correspondence from various courts confirming such conflicts. This letter also advised that Bloodman would be out of state on February 15-18, 2009, due to the death of a family member. Blood-man then wrote the court on February 13, 2009, objecting to the hearing and explaining that “[a]ny hearing would pose |4a significant burden or conflict” unless it was scheduled beyond the next thirty days. In addition, Bloodman requested that the court identify the authority under which the hearing would be convened, the issues to be addressed, and any potential exhibits and witnesses.
The circuit court held the hearing on February 18, 2009. Dean appeared and Bloodman did not. Dean testified that back in September 2008, her office had received a letter from Bloodman requesting Dean’s agreement to amend the judgment and commitment order. Dean recalled that she did not agree to the amendments at that time. Dean stated that Bloodman approached her one other time during a plea and arraignment day requesting her consent to an amended judgment and commitment order and that she did not agree then either. Dean stated further that she “never heard another word” about it until she just happened to run across this court’s ruling on the belated appeal, which indicated an amended judgment and commitment order had been filed. Dean stated that it was at that point that she checked the court’s file and discovered that the amended judgment had been filed and the original judgment was missing. She also discovered in the file that a motion to amend the judgment had indeed been filed certifying that the prosecutor’s office had been served. Dean stated that her office had never received a copy of the motion to amend. Dean also stated that after she was contacted by the court’s case coordinator and advised that the hearing would go forward on February 18, she attempted to communicate this to Bloodman by faxing a letter, but Blood-man’s fax machine line was busy for several hours. Finally, Dean stated that she communicated the hearing date to Blood-man via email.
hThe circuit court then noted that it had received Bloodman’s letter objecting to the hearing but that she had neither requested a continuance nor articulated any reason why a continuance should be granted, thus the hearing would continue despite her choice not to appear. The circuit court then made a finding that Bloodman had obtained the court’s signature on the amended judgment and commitment order by misrepresenting the State’s approval and consent. It was on that basis that the circuit court entered an order fining Bloodman $1,500 and holding her in contempt. This appeal followed.
As her first point on appeal, Bloodman contends that she was deprived of her due-process rights under the Arkansas and United States Constitutions when she was summarily held in criminal contempt of court without receiving notice that criminal contempt charges were pending and an opportunity to present a defense. She relies on Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988), and Ark.Code Ann. § 16-10-108 (Supp.2009). The State responds that the court’s letter of February 5, 2009, was adequate notice to Bloodman that a hearing would be held on February 18, 2009, to address her procurement of the court’s signature on the amended order by misrepresentation, an act which the State describes as “unarguably contemptuous.” The State responds further that Bloodman cannot say she was | ^denied due process because she was given an opportunity to be present at the hearing but chose not to attend.
The threshold issue in a contempt case is whether the proceeding was a criminal or a civil proceeding. Fitzhugh, 296 Ark. 137, 752 S.W.2d 275. The critical features that determine the nature of the proceeding are (1) the substance of the proceeding and (2) the character of the relief. Id. In Fitzhugh, this court explained the difference as follows, quoting in part from the United States Supreme Court:
The purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. A civil contempt proceeding is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties. Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974); see also Gompers v. Bucks Stove & Range Co., 221 U.S. 418 [31 S.Ct. 492, 55 L.Ed. 797] (1911). However, the substantive difference between civil and criminal contempt often becomes blurred. The character of the relief, rather than the trial court’s characterization of the substantive proceeding, becomes the critical factor in determining the nature of the proceeding for due process purposes. The Supreme Court of the United States has clearly set out the distinction between the types of relief:
“If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 [31 S.Ct. 492, 55 L.Ed. 797] (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if “the defendant stands committed unless and until he performs the affirmative act required by the court’s order,” and is punitive if “the sentence is limited to imprisonment for a definite period.” Id., at 442 [31 S.Ct. 492], If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order.
[/The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is “solely and exclusively punitive in character.” Penfield Co. v. SEC, 330 U.S. 585, 593 [67 S.Ct. 918, 91 L.Ed. 1117] (1947). A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act. “One who is fined, unless by a day certain he [does the act ordered], has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, ‘carry the keys of their prison in their own pockets.’ ” Id. at 590 [67 S.Ct. 918], quoting In re Nevitt, 117 F. 448, 461 (C.A.8 1902).
Id. at 138-40, 752 S.W.2d at 276-77 (quoting Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631-33,108 S.Ct. 1423, 99 L.Ed.2d 721 (1988)). In the present case, the $1,500 fine assessed against Bloodman is unconditional and is to be paid to the court. Without question, as was the case in Fitzhugh, Bloodman’s fine is punitive in nature as it has no coercive or compensatory aspect.
As this court observed further in Fitzhugh, “[t]hese distinctions between civil and criminal contempt lead up to the fundamental proposition that criminal penalties may not be imposed on an alleged contemner who has not been afforded the protections that the Constitution requires of criminal proceedings.” Id. at 140, 752 S.W.2d at 277. The Due Process Clause,' as applied in criminal proceedings, requires that an alleged contemner be notified that a charge of contempt is pending against him and be informed of the specific nature of the charge. Id.
We agree with the State that the court’s letter of February 5, 2009, provided adequate notice to Bloodman that a hearing “to determine precisely what happened” would occur on February 18, 2009. We also agree with the State that, as the court found at the hearing, Bloodman chose not to attend the hearing. We cannot agree, however, that the court’s letter Isgave Bloodman adequate notice that criminal contempt charges were pending against her. The court’s letter does not mention that it was considering contempt or any other consequence as a result of its inquiry hearing. Thus, while we agree that the court’s letter gave Bloodman no tice that an inquiry or an investigatory hearing would be held, the letter did not inform Bloodman that the consequences resulting at the conclusion of the court’s investigation included the possibility of a finding of criminal contempt. See Bartley v. State, 73 Ark.App. 452, 45 S.W.3d 387 (2001) (reversing and remanding where notice did not inform that consequence of noncompliance was contempt).
In addition to the due-process requirements we have previously recited from the Fitzhugh case, we are cognizant of Arkansas statutory law on the requirements of notice for criminal contempt. Section 16-10-108(c) provides that contempts committed in the immediate view and presence of the court may be punished summarily, and in other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his defense. Thus, both Arkansas law and the Fourteenth Amendment to the United States Constitution are clear that Bloodman was entitled to notice not only that the court was investigating the possibility of her misrepresentation to the court, but also that it was considering holding her in criminal contempt for such alleged misrepresentation. We therefore reverse and remand on this point.
lAs her second point on appeal, Blood-man challenges the sufficiency of the evidence to support the finding of contempt. As we reverse and remand for lack of notice, we need not address this point.
The order holding Bloodman in criminal contempt of court is reversed, and the case is remanded.
BROWN, J., concurs.
. In December 2008, Bloodman filed a motion for rule on clerk on behalf of Stevenson, which this court treated as a motion for belated appeal and granted based on Bloodman’s failure to timely file a notice of appeal. Stevenson v. State, 375 Ark. 318, 290 S.W.3d 5 (2008) (per curiam). In that per curiam, this court observed that an amended judgment and commitment order was entered on November 12, 2008, and that on November 18, 2008, Stevenson, through Bloodman, filed a notice of appeal from that amended judgment. However, this court found the November 18, 2008 notice of appeal to be a nullity because the record did not reflect that a post-trial motion to amend the judgment had been timely filed within thirty days of the entry of the original judgment and commitment order. Id. The Arkansas Court of Appeals affirmed Stevenson's conviction in September 2009. Stevenson v. State, 2009 Ark.App. 582, 2009 WL 2877238.
. Bloodman includes in her argument a citation to Hilton Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980), for the proposition that she is entitled not only to notice but also to service of legal process because she was not a party to the action or otherwise before the court. While Bloodman was not a party in the Stevenson case and was not present at the February 18 hearing, she was otherwise before the court as counsel for Stevenson and an officer of the court. | [
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JIM GUNTER, Justice.
liAppellant was convicted of first-degree murder and sentenced to sixty years’ imprisonment, plus fifteen years’ imprisonment pursuant to a firearm enhancement, to run consecutively. Appellant now appeals his sentencing enhancement, arguing that the firearm-enhancement statute, codified at Ark.Code Ann. § 16-90-120 (Supp.2009), has been repealed by implication. Because this case involves an issue of statutory interpretation, this court has jurisdiction pursuant to Ark. Sup. Ct. R. 1 — 2(b)(6). We affirm.
Because appellant is not challenging the sufficiency of the evidence supporting his conviction, only a brief recitation of facts is necessary. In a felony information filed May 5, 2009, appellant was charged with first-degree murder in the death of Timothy Williams. The 12information also charged appellant as a habitual offender and asserted that his sentence should be enhanced pursuant to Ark.Code Ann. § 16-90-120, as he had employed a firearm while committing the charged offense. Section 16-90-120 provides, in pertinent part:
(a) Any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
(b) The period of confinement, if any, imposed pursuant to this section shall be in addition to any fine or penalty provided by law as punishment for the felony itself. Any additional prison sentence imposed under the provisions of this section, if any, shall run consecutively and not concurrently with any period of confinement imposed for. conviction of the felony itself.
Ark.Code Ann. § 16 — 90—120(a), (b) (Supp. 2009). A jury trial was held on November 12-13, 2009. On the second day of trial, prior to the commencement of testimony, a bench conference was held to discuss jury instructions. During this discussion, appellant objected to the use of the instruction on the firearm enhancement under § 16-90-120, arguing that the statute had been repealed by the adoption of the Model Penal Code. Appellant’s objection was overruled, and the jury was instructed according to AMI Crim. 2d 8201, which incorporates the provisions of the statute. The jury found appellant guilty of first-degree murder and recommended a sentence of sixty years’ imprisonment. The jury also found that appellant had employed a firearm as a means of committing first-degree murder and recommended a sentence enhancement of fifteen years’ imprisonment. The court adopted the jury’s recommendation and sentenced appellant accordingly, and a judgment and commitment order was entered on November 24, 2009. Appellant filed a timely notice of appeal on | ^December 21, 2009.
On appeal, appellant argues that his sentence enhancement was illegal because it was imposed pursuant to § 16-90-120, which was repealed by implication when the Arkansas Criminal Code became effective on January 1, 1976. More specifically, appellant asserts that § 16-90-120(a) and (b) were formerly codified at Ark. Stat. Ann. §§ 43-2336 and 43-2337, and the new Arkansas Criminal Code also contained a firearm enhancement provision codified at Ark. Stat. Ann. § 41-1004 (later codified at Ark.Code Ann. § 5-4-505). Section 43-2336 provided for an additional period of confinement, up to fifteen years, for employing a firearm while committing a felony, and § 43-2337 provided that the additional confinement would run consecutively to whatever fine or penalty was provided by law for the felony itself. Section 41-1004 mandated that if a defendant was convicted of a felony and was found to have employed a firearm in the course or furtherance of the felony, the maximum permissible sentence otherwise authorized shall be extended by fifteen years. Appellant argues that §§ 43-2336 and 43-2337 were in irreconcilable conflict with § 41-1004 on January 1, 1976, the date the criminal code was enacted, and that the General Assembly did not intend for §§ 43-2336 and 43-2337 to remain in effect after January 1, 1976. Alternatively, appellant also argues that § 41-1004 replaced §§ 43-2336 and 43-2337, so those sections no longer remained viable.
It is well settled that statutes relating to the same subject should be read in a harmonious manner if possible. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). All legislative acts relating to the same subject are said to be in pari materia and must be construed ^together and made to stand if they are capable of being reconciled. Id. Repeals by implication are not only strongly disfavored by the law, but a statute will be impliedly repealed in Arkansas only when two enactments cannot stand together. Cox v. State, 365 Ark. 358, 229 S.W.3d 883 (2006). Repeal by implication is only recognized in two situations: (1) where the statutes are in irreconcilable conflict, and (2) where the legislature takes up the whole subject anew, covering the entire subject matter of the earlier statute and adding provisions clearly showing that it was intended as a substitute for the former provision. Thomas, supra. We will not find a repeal by implication if there is any way to interpret the statutes harmoniously. Cox, supra. In addition, a circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).
This court addressed an argument similar to the present argument in Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005). In Williams, the defendant argued that a five-year sentence imposed on him under § 16-90-120(a) was forbidden by § 5-4-104(a). Williams argued that, because his commission of aggravated robbery occurred after the passage of the Arkansas Criminal Code in 1975, his sentencing should be governed only by that code, and that § 16-90-120(a) was not included in the criminal code and could not be applied. This court stated:
The crux of Williams’s argument is that there is a conflict between § 5-4-104(a) and § 16-90-120(a-b). In this case, these two statutory provisions can be read in a harmonious manner. Section 5-4-104(a) can be viewed as referring only to the initial sentence imposed based on the crime for which the defendant was convicted, and § 16-90-120(a-b) can be read as referring only to a sentence enhancement that may be added to the initial sentence.
[¡Looking at the clear language of § 16-90-120(a-b), we observe that the legislature intended the statute to serve as an enhancement of the original sentence for the convicted crime, as the statute itself says that the sentence enhancement is an “additional period of confinement.” Ark.Code Ann. § 16-90-120(a) (emphasis added). We further note that when § 5-4-104(a) was enacted in 1975, the legislature did not choose to repeal or overrule § 16-90-120(a-b). This is important, since in Johnson v. State, supra, we have noted that when presented with the challenge of construing criminal statutes that were enacted at different times, the court presumes “that when the general assembly passed the later act, it was well aware of the prior act.” 331 Ark. [421] at 425, 961 S.W.2d [764] at 766 [(1998)] (holding that the Arkansas Criminal Code and the gambling-house statute can be read in harmony where one defines the term of imprisonment and the other allows the court to impose suspension or probation).
We hold that § 5-4-104(a) and § 16-90-120(a-b) can be read harmoniously to mean that § 16-90-120(a-b) is only a sentence enhancement, while the Arkansas Criminal Code provides the minimum sentences to be imposed for each specific offense.
Williams, 364 Ark. at 208-09, 217 S.W.3d at 820.
We find that the same reasoning can be applied to the case at bar. Section 5-4-505 provided that the maximum possible sentence otherwise authorized for a felony would be extended by fifteen years if the person so convicted employed a firearm in the course of or in furtherance of the felony. Section 16-90-120 provided an additional term of confinement, up to fifteen years, in addition to the punishment provided for the felony itself, if the person convicted of a felony employed a firearm as a means of committing or escaping from the felony. So, as reasoned above in Williams, § 5-4-505 and § 16-90-120 can be read harmoniously to mean that § 16-90-120 is only a sentence enhancement, apart from the punishment for the felony itself, while § 5-4-505 provides an increase in the maximum sentence to be imposed for a felonious offense. Therefore, the statutes were not in | ^irreconcilable conflict, nor is there any clear provision from the legislature showing that § 5-4-505 was intended as a substitute for § 16-90-120. While these two statutes may have been somewhat redundant, and an application of both at the same time may have been considered error, that is not what is at issue on appeal in this case. Section 5-4-505 was repealed in 1994, and in Williams, we acknowledged that repeal and noted that it left § 16-90-120(a) & (b) intact. See Williams, 364 Ark. at 210, n. 2, 217 S.W.3d at 821 n. 2; see also Watson v. State, 71 Ark.App. 52, 26 S.W.3d 588 (2000) (finding that § 5-Í-103 and § 16-90-120 were not in conflict and that § 5-4-103 did not repeal § 16-90-120).
We also note that the dissent in Williams discussed this issue and called upon the General Assembly to address whether § 16-90-120 was repealed. In the five years since, the General Assembly has not done so explicitly, but the legislature did amend § 16-90-120 in 2007 by adding a subsection dealing with parole eligibility. Because one of the rules of statutory construction involves a presumption that the legislature is fully aware of prior legislation and case law under preexisting law, State v. L.P., 369 Ark. 21, 250 S.W.3d 248 (2007), it seems that if the General Assembly agreed that § 16-90-120 had been repealed, it would not have bothered to validate its continued existence by amending it. We therefore find that § 16-90-120 was not repealed by implication, and thus it was not error for the circuit court to instruct the jury according to that statute.
Affirmed.
HANNAH, C.J., and CORBIN and DANIELSON, JJ., dissent.
. Appellant was also charged with possession of a firearm by certain persons and criminal attempt to furnish prohibited articles, but these charges were later nolle pressed and are not at issue on appeal. | [
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Conley Byrd, Justice.
The issue on this appeal is whether fraudulent concealment of a misrepresentation of the value of stock will toll the two-year statute of limitations, Ark. Stat. Ann. 67-1238 and 67-1256 (Eepl. 1966), on the surety bond required by section 67-1238.
In the first appeal of this case, Pacific Ins. Co. v. Martin, 242 Ark. 621, 414 S.W. 2d 594 (1967), Martin contended that she had traded 1,838 shares of First Security Life Insurance Company stock, worth $1.10 per share, for 2,000 shares of Allied stock upon the false representation of M & M Securities Company, Inc., that the Allied stock was worth $1.15 per share when in fact the Allied stock had no value. M & M defaulted in that suit, but its corporate surety, Pacific Insurance Company, adduced proof that the First Security stock was worth only 20 to 21 cents per share at the time of the purchase of the Allied stock. We reversed that appeal because of insufficient evidence to sustain a verdict for $1,838.
Upon remand Martin amended her complaint to allege that M & M through its employees on June 20, 1963, sold to her 1,838 shares of First Security stock for $1,838 upon the representation that the stock was worth $1 per share, when in truth the 1,838 shares were worth only $300; that on January 14,1964, M & M while falsely representing to her that her First Security stock was worth $1.10 per share, induced her to trade her 1,838 shares of First Security stock for 2,000 shares of Allied Company, Inc., stock upon the false representation that the 2,000 Allied shares were of the same value as the 1,838 shares of First Security stock; that the Allied stock was valueless; and that because of the fraud of M & M, she did not learn of the false representation of the value of the First Security stock until February 18, 1966, when she was advised of the true value of the stock by attorneys for appellee Pacific Insurance Company.
Upon Pacific’s motion the trial court granted summary judgment holding that the First Security transaction was barred by the two-year statute of limitations contained in §§ 67-1238 and 67-1256, supra.
Section 67-1238(e) provides:
“The Commissioner shall require registered broker-dealers ... to post corporate surety bonds . . . Aliy appropriate deposit of cash or securities . . . shall be accepted in lieu of any corporate surety bond required. Such deposits of cash or securities shall not be withdrawn until two (2) years after the last effective date of registration. Every bond shall provide for suit thereon by any person who has a cause of action under this act [§§ 67-1235 — 67-1262] . . . Every bond shall provide that no suit may be maintained to enforce any liability on the bond unless brought within two (2) years after the sale or other act, upon which it is based ...”
Section 67-1256 provides:
“(a) Any person who
(1) ...
(2) offers or sells a security by means of any untrue statement of a material fact ... is liable to the person buying the security from him...
(e) No person may sue under this section more than two (2) years after the contract of sale . ..
(h) The rights and remedies provided by this act are in addition to any other rights or remedies that may exist at law or in equity, but this act does not create any cause of action not specified in this section or section 4(e) [§ 674238(e)].”
When the statutes are construed together, it is obvious that the liability provisions of the bond are coterminous with the liability provisions of § 67-1256, supra. See Commissioner’s Note to § 202 (e) of the Uniform Secur S.W. 2d 39 (1938). See Ark. Stat. Ann. 674256(h) ities Act, Vol. 9C Uniform Laws Annotated, p. 93. In other words, as we read the statutes and the Commissioner’s Notes to the Uniform Securities Act, the bond required by section 674238(e) stands as security only for the civil liability created by section 67-1256.
Can the liability under section 67-1256 be extended by fraudulent concealment of an untrue statement to such time as the untruth of the statement is discovered? We hold that it can not, but that suit must be brought ■within two years from the date of purchase of the securities. Obviously the drafters of the statute, in creating new civil rights, could place any limitation they might desire upon the rights thus created. Here the drafters were dealing with matters that would certainly not be discovered at the time of the sale of the securities, and yet the drafters limited the time in which to bring a cause of action, on the rights thus created, to two years from the date of sale. We doubt that words could be chosen that would more clearly exclude the fraudulent concealment exception usually applied to statutes of limitation.
The trial court properly held that Martin’s cause of action against M & M’s surety bondsman on the First Security transaction was barred by the two-year limitation period from the date of sale. However, the two-year limitation in section 67-1256 has no effect upon Martin’s common law action against M & M recognized in City National Bank v. Sternberg, 195 Ark. 503, 114 S.W. 2d 39 (1938). See Ark. Stat. Ann. §67-1256(h) (Repl. 1966).
Affirmed. | [
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Conley Byrd, Justice.
Appellant Maxine Reed filed a complaint in the Chancery Court seeking to en join appellee W. R. Whitehead from acting in the capacity of “third member” of the Dallas County Board of Election Commissioners, claiming at the same time that she was the proper person to hold such office. Appellee filed an answer and counterclaim seeking to enjoin appellant from usurping the office to which appellee claimed to have been appointed.
The complaint and counterclaim, considered in all their respects, must be held to be a suit for the purpose of trying title to the office of “third member” of the County Board of Election Commissioners. We have consistently held that a court of equity does not have jurisdiction to determine questions concerning the appointment or election of public officers or their title to office. Davis v. Wilson, 183 Ark. 271, 35 S.W. 2d 1020 (1931).
The judgment entered below in favor of appellee Whitehead is reversed and the cause remanded to the Chancery Court with directions to dismiss same for lack of jurisdiction, any remaining issues which might warrant a transfer to law docket having become moot by virtue of our decision of this date in Ellis v. Rockefeller.
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John A. Fogleman, Justice.
Appellant contends that the trial court erred in overruling its motion to dismiss an amended complaint filed against it by each of the appellees and granting the motions of appellees for a summary judgment.
Appellees, Floyd and Ethel Bradshaw, brought separate suits against appellant, MFA Mutual Insurance Company, on March 14, 1967 seeking recovery on judgments each had recovered against one Brenda Howard, an uninsured motorist. These judgments were for damages resulting from an automobile collision between a vehicle owned and operated by Floyd Bradshaw, in which Ethel Bradshaw was a passenger, and a vehicle operated by this uninsured motorist on September 17, 1966. The suits were consolidated for trial. Appellant was appellees’ liability insurance carrier. The liability policy provided uninsured motorist coverage. Each appellee was an “insured” under the policy terms. The coverage was set out as follows:
“* * * The Company will pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; * *
Appellees instituted suit against appellant and Brenda Howard on October 11, 1966. Brenda Howard employed counsel and filed an answer and counterclaim. MFA filed a motion asking dismissal of the complaint as to it on the ground that appellees had improperly joined an action in tort against Brenda Howard and an action in contract against MFA. The trial court required appellees to elect which remedy they would pursue. They took a voluntary nonsuit against MFA and elected to proceed against Howard on February 17, 1967. On February 20, 1967, appellant, by its attorney, wrote a letter to appellees’ attorney directing attention to the following language in Insuring Agreement V:
“No judgment against any pei.sun or organization alleged to he legally responsible for the bodily injury (sustained by the insured) shall be conclusive, as between the insured and the Company, of the issues of liability of such person or organiza tion or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the Company.”
In this letter appellees’ attorney was also advised that MFA Mutual Insurance Company did not consent, in writing or otherwise, to the prosecution of the action against Brenda Howard, and that any judgment obtained against her would not be conclusive as to the liability of Brenda Howard or the amount of damages appellees might be legally entitled to recover from MFA. No reason for the withholding of consent was stated.
On March 14, 1967 the complaint against MFA was dismissed without prejudice pursuant to the nonsuit indicated previously. On the following day, when the case against Brenda Howard was called for trial, neither she nor her attorney appeared, and the default judgment sued on here was entered in favor of both Bradshaws on their complaint and against Brenda Howard on her counterclaim. No explanation of the reason for her failure to appear has been given. MFA filed a motion to dismiss the cause now before us based upon the letter mentioned above and the policy clause quoted therein, stating that it was entitled to litigate the issues of liability and damages, and alleging that the default judgments . were not binding on it. The trial court treated the motion to dismiss as a demurrer and gave appellees time within which to amend their respective complaints. Both amended to add an allegation that MFA had refused to settle with them and refused to defend the suit against Brenda Howard after having-had notice of the suit and after having been notified of the trial date, and that the doctrine of res judicata applied. MFA again moved for dismissal, reiterating the statements of its original motions, and alleging that it could not have defended the action against Brenda Howard, that res judicata was inapplicable because of a lack of identity of parties, and that the sole remedy of the Bradshaws was by an action against MFA in which the issues of the liability of Brenda Howard and the amount of damages would be litigated. This motion was denied. The Bradshaws then filed a motion for summary judgment based upon the pleadings and a stipulation of the facts herein above stated. This motion was granted and this appeal taken.
The sole question on this appeal is that of the validity of the paragraph providing that no judgment in an action prosecuted by the insured against an uninsured motorist without the written consent of the insurer shall be conclusive as between the insured and the insurer. The meaning and intent of this provision is clear and unmistakable. It is designed to protect the insurer in cases such as this where, even though there was every reason to believe that the questions of liability and damages would be litigated thoroughly, the uninsured motorist defaulted. As a result, the question of liability has not actually been litigated. "We agree with the Supreme Court of Missouri that defaulting defendants are not represented because a trial court cannot and should not act as an attorney for defaulting defendants and produce witnesses who might contradict the testimony of a plaintiff and witnesses produced by him. State v. Craig, 364 S.W. 2d 343, 95 ALR 2d 1321 (Mo. 1963). This question can never be litigated unless this policy provision is held valid, or unless we hold that such a judgment cannot be conclusive on the insurer. Such a holding would be contrary to the apparent weight of authority. See, e.g., Boughton v. Farmers Ins. Exchange, 354 P. 2d 1085, 79 ALR 2d 1245 (Okla. 1960); MFA Mutual Ins. Co. v. Lovins, 248 F. Supp. 108 (D.C. Ark. 1965), and authorities cited therein.
An insurer may contract with its insured upon conditions expressed in its policy, limited only by statute and public policy. The insured, by acceptance of a policy, is deemed to have approved it with all conditions and limitations expressed therein which are reasonable and not contrary to public policy. Maryland Casualty Co. v. Chew, 92 Ark. 276, 122 S.W. 642.
Certain clauses have been voided as contrary to public policy. Ark. Stat. Ann. § 66-3233 (Repl. 1966) declares that a clause compelling an insured to submit any question of fact to arbitration is void. We agree with the United States District Court for the Eastern District of Arkansas that a clause providing forfeiture of insurance coverage by an insured who prosecuted to judgment a suit against an uninsured motorist without written consent of the insurer is against public policy of the state. MFA Mutual Ins. Co. v. Lovins, 248 F. Supp. 108 (D.C. Ark. 1965). That case, relied upon by appellees, is easily distinguished from the case at bar. No penalty of entire loss of coverage is provided for in the policy involved here. The contract here simply permits the insured to have the opportunity to litigate separately questions of liability of the uninsured motorist and the damages recoverable, unless it consents to an action by its insured against the uninsured motorist. Under this clause, the insured can pursue remedies against either or both the uninsured motorist and the insurer, but he cannot hold the insurer, without its consent, upon a judgment obtained in an action in which the insurer was not a party and consequently had no control over the defense made or evidence offered.
In many of the decisions cited in this opinion there is a holding that an insurer having notice of or an opportunity to participate in an action against an uninsured motorist is, or may be, bound by the judgment rendered in favor of its insured, but none of them involve a contract containing a clause stipulating against such a binding effect but not imposing forfeiture of coverage. We are not aware of any decision in which the insurer’s liability on such a judgment is based on the doctrine of res judicata. Most seem to be based jn some kind of estoppel. There is no statute prohibiting this clause in a motor vehicle liability insurance policy. In at least one court it has been recognized that a judgment against an uninsured motorist may not be binding on the insurer where there is a policy clause like this one. Andeen v. Country Mutual Ins. Co., 70 Ill. App. 2d 357, 217 N.E. 2d 814 (1966). See, also, Alston v. Amalgamated Mutual Cas. Co., 53 Misc. 2d 390, 278 NYS 2d 906 (1967). We are not aware of any public policy of this state which would invalidate it. On the other hand, there are many policy considerations which indicate that such a prevision is reasonable. The insured would be free to pursue his remedy against an insurance company which might be the only real party in interest as a defendant. It is desirable that uninsured motorist coverage be available at the option of the insured at a modest premium. [See Kisling v. MFA Mutual Ins. Co., 399 S.W. 2d 245 (C.A. Mo. 1966).] The insurer would not bo required to pay damages in cases in which, because of default, the questions of liability and damages were never really litigated. The effect of the duplicitous position of an insurer who would be liable on a judgment against its insured, but who would also be required to pay anv judgment rendered in fav or of its insured against an uninsured motorist not selected or approved by it, could be minimized to some extent. At least the insurer would have some control over situations in which it was called upon to defend its insured on a counterclaim, while it would be to its own interest that the parties would eventually be found equally responsible for the damages, or, if not, that the amounts of recovery would be offsetting. Any state of affairs in which an insurer would desire to minimize its insured’s recovery against another party may not be against public policy, but is undesirable to say the least. The possibility of collusion between an insured and an uninsured motorist is minimized by such a clause.
We agree with the Oklahoma Supreme Court that a situation where the interest of an insurer is to defeat the claim of its own insured should not be countenanced where it can be avoided. Holt v. Bell, 392 P. 2d 361 (Okla. 1964). That court stated that placing the parties in such a position virtually makes the plaintiff’s insurer the liability insurer of the defendant and interested in defeating the claim. The uninsured motorist provision is not intended to afford coverage to the uninsured motorist, but to provide protection to the insured against the perils of injury by an uninsured motorist. Ark. Stat. Ann. § 66-4003 (Repl. 1966); Johnson v. General Motors Corp., 242 P. Supp. 778 (D.C. Va. 1965), and cases cited therein. Appellees contend that appellant should have tendered a defense to the uninsured motorist. The insurer has no duty to defend an uninsured motorist. Kisling v. MFA Mutual Ins. Co., 399 S.W. 2d 245 (C.A. Mo. 1966). It is at least doubtful that the insurer has any right to do so. In case an insurer elected to defend, its ability to control the defense would be very restricted in a case like this one. The propriety of tendering a defense to one who has employed his own counsel is questionable.
Our statute provides that the insurer be subrogated to the rights of its insured against the uninsured motorist. Ark. Stat. Ann. §66-4006 (Repl. 1966). It has been recognized that this right could be materially impaired unless the insurer had some option about the conduct of an action against the uninsured motorist. Mills v. Farmers Insurance Exchange, 41 Cal. Rptr. 650 (1964); Alston v. Amalgamated Mutual Cas. Co., 53 Misc. 2d 390, 278 NTS 2d 906.
The clause in question does not prohibit an insured from prosecuting an action against the uninsured motorist, so it cannot be said that it hampers an insured in seeking to recover damages in excess of his policy limits from a solvent uninsured motorist.
Inferentially, it is suggested that appellant withheld its consent arbitrarily. While there well may be an implied promise on the part of the insurer that its consent not be withheld arbitrarily (see Levy v. American Automobile Inc. Co., 31 Ill. App. 2d 157, 175 N.E. 2d 607), the burden was on appellees to show that this was done. Portillo v. Farmers Ins. Exchange, 238 Cal. App. 2d 58, 47 Cal. Rptr. 450 (1966). Under the circumstances of the case at bar, we cannot say that there is any such showing.
We find the “consent” clause in this policy to be valid and binding. The summary judgment is reversed and the cause remanded for proceedings consistent with this opinion.
This occurred before the effective date of Act 73 of 1967 permitting joinder of an action in tort with an action in contract. | [
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John A. Fogleman, Justice.
Appellants seek reversal of the judgment of the circuit court affirming an award of the Workmen’s Compensation Commission to Howard Raper, based on findings that he was totally and permanently disabled as a result of a compensable injury suffered on November 8, 1965. It is the contention of the appellants that there was no substantial evidence to support either a finding that there was a compensable injury or that the claimant was totally and permanently disabled.
In viewing the evidence it must be given its strongest probative force in favor of the action of the Commission. Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487. The reason for doing so is that the drawing of inferences is the responsibility of the Commission when the testimony is open to more than a single interpretation. Bradley County v. Adams, 243 Ark. 487, 420 S.W. 2d 900. It must be kept in mind that the question is not whether the testimony would have supported a contrary finding, but whether it supports the finding made. The Commission’s decision should not be reversed unless the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the Commission. Herman Wilson Lbr. Co. v. Hughes, supra.
Raper was 46 years of age at the time of his injury. He had a third-grade education. He cannot read and cannot write except to sign his name. He has acquired no special vocational skills. His work experience prior to employment by Reynolds Mining Company consisted of driving a log truck, working on a railroad section gang, cutting logs, and working as a general laborer and as a carpenter’s assistant. He had been employed by Reynolds approximately 20 years at the time of this alleged injury.
During his employment by Reynolds, appellee had earlier received a back injury for which he had undergone disc surgery and had been awarded a permanent partial disability of 20% to the body as a whole. Ulti mately, lie returned to the same job he held before this injury. Appellants contend that Raper’s present complaints are attributable to the 1951 injury, for which he has been fully compensated.
Raper worked in an underground mine as a “skip tender.” His duties called upon him to assist in unloading' small Jeep trucks used in the mine. The bed of a truck ready for unloading would be raised automatically and Raper would pull a lever which caused the tailgate on the truck bed to open and permit the load to pour into a bucket. This operation required him to bend over and then to rise up. He would then pull a rope which rang a b.ell at the surface. On this signal, the bucket would be raised to ground level and emptied.
Raper testified that his duties included cleaning out the truck beds. He said that trouble with boulders was sometimes encountered in the performance of his duties. On the occasion of his alleged injury, at about 8 p.m. on a Monday in November 1965, he said that a tailgate on one of the jeeps became “sprung” so that it gapped open at the bottom and he couldn’t close it in spite of repeated efforts by pulling on the controlling-lever. He stated that he was assisted in his efforts by two Jeep drivers, Wayne Glover and Donald Lesage. Although he said his back hurt after this exertion, he completed the shift ending at 1 a.m. He made no report to his supervisor or the first aid officer, although he knew he was required to report on-the-job injuries to his foreman. His excuse was that he thought he would be all right in a day or two. Having been unable to return to work, he sent his wife to report to the plant safety director on the following Friday. He first consulted a physician (Dr. Joe Lester) on the Monday following the incident. He reported to the doctor that his injury was not a workmen’s compensation injury.
It is not clear from the testimony whether Raper gave the doctor a history of a work-connected injury until after he had engaged an attorney.
Lesage recalled the attempts to close the tailgate, but his memory as to the time of the incident and the time Raper quit working was faulty. He testified that Raper did not complain until after he made a few more loads after the tailgate was repaired. Raper was then holding his back, saying it had been hurt in his attempt to close the tailgate. He did remember, however, that he had told the safety director that he did not remember Raper’s complaining about his back while they were working together in the mine.
(Hover stated that he remembered the incident about the tailgate and that Raper went around in a stooped position the rest of the night.
Raper testified that his back had hurt some ever since his first injury, and when his back did hurt, he would lay off his job and rest a day or two.
After his first examination, Dr. Lester expressed the opinion that Raper had a long-standing history of lumbosacral strain following disc removal. Raper had reported to him that Drs. Jones and Murphy had recommended back surgery about a year earlier and that he had persistent low back pain, aggravated by bending and lifting. In January of 1966, Dr. Lester expressed the opinion that either minimal trauma of the nature related to him by Raper or aggravation by other minute trauma associated with his job could cause the back condition for which he was giving treatment. He further stated that, with good fortune, Raper could probably continue in his gainful employment and that there should be no additional permanent partial disability.
When Dr. Lester testified by deposition on April 11, 1966, however, he stated that with the chronic back instability of the nature Raper had, almost anything, such as a sudden slip* twist or fall, or even pulling on boots, could cause exacerbation; that Raper got along very well when he was not working, but had difficulty when he went back to work; that Baper had gotten by on a borderline basis, but, in his opinion, would not be able to do so in the future; that it was debatable whether the injury suffered in November 1965 caused Baper to quit work. This doctor compared Baper’s situation to that of a worn tire which will blow out sooner or later. He opined that appellee couldn’t hope to return to the work he had been doing at present, but in the near future could return to light work which did not require lifting or bending’. This doctor said there was no doubt that Baper had further aggravation of his condition by his last injury.
The Workmen’s Compensation Commission found that appellee suffered an accidental injury to his back which aggravated a previous injury sustained by him in 1954, and that both injuries arose out of and in the course of his employment by appellant. It further found that the injury in November 1965 was not only a separate and distinct injury from that suffered in 1954, but that it was superimposed upon a more gradual aggravation caused by his employment. We agree with the trial court that there is substantial evidence to support this finding.
Baper testified that after six weeks of treatment by Dr. Lester he was able to work only three days in each of the succeeding weeks. Thereafter, he wore a back brace supplied by Dr. Lester on February 11, 1966. He returned to work on February 28 and had not lost any further time from work up to the time of the hearing before the Beferee of the Workmen’s Compensation Commission on March 23, 1966. Later, on May 24, 1967, Baper said that he «tried to work three times but had last worked on March 18, 1966, although company records showed that he had worked a full shift from March 7 to 28, 1966. He said that when he worked he would be hurting so bad when he came home, he couldn’t even stay in bed. He also stated that if he made an awkward step, his back would hurt and that he had pain practically all the time.
Although Dr. Lester stated that the increase in Raper’s permanent partial disability was slight from the standpoint of anatomical physical impairment, he was of the opinion that Raper was now unable to perform the gainful employment he had performed. On one occasion this doctor stated that if Raper couldn’t obtain light work that did not require him to bend or lift with this employer, he should try to find it elsewhere.
Dr. Kenneth Jones testified that Raper had a poor adjustment to his illness and that his mental attitude made recovery difficult. Although Dr. Jones recommended that Raper retire from heavy manual labor, he did not think that he was doing this type of work. He testified, however, that he knew Raper’s job required some physical stress. He found Raper’s complaints of pain disproportionate to the objective symptoms. While Raper admits that he had not tried to find other work, he says that he would if he were able.
The trial court found “some” substantial evidence to support the Commission’s finding. While this evidence might better support a finding of something less than total and permanent disability, we cannot say that fair-minded men could not reach the Commission’s conclusion, considering, as the Commission must, appellee’s physical condition, age, lack of education, work experience, and other factors affecting his earning capacity. Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685; Wilson & Co., Inc. v. Christman, 244 Ark. 132, 424 S.W. 2d 863; Arkansas Best Freight v. Brooks, 244 Ark. 191, 424 S.W. 2d 377; Abbott v. C. H. Leavell & Co., 244 Ark. 544, 426 S.W. 2d 166.
The judgment is affirmed.
Jones, J., dissents.
J. Fred Jones, Justice.
I cannot agree with the majority opinion that the permanency of the appellee's total disability is sustained by substantial evidence in this case. When a percentage of disability is established by medical testimony relating to functional loss in the use of a part of the body, or of the body as a whole, then certainly the Commission may consider other evidence affecting the claimant’s capacity to earn in the same or other employment the wages he was earning at the time of his injury in arriving at his overall percentage of disability.
Total and. permanent disability to the body as a whole presupposes that the healing period has ended, that nothing more can be done to relieve the claimant’s condition, that he is totally disabled from earning in the same or other employment the wages he was earning at the time of his injury, and that such total disability will attend him the rest of the days of his life.
I am unable to find substantial evidence of that situation in the case at bar.
I would reverse. | [
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Paul Ward, Justice.
This is an appeal from a decree against a property owner establishing a lien to secure payment of $2,724. A brief summary of the facts out of which this litigation arises is set out below.
Facts.
E. B. Bell and his wife (appellants here) are the owners of a lot in the town of Mena on which was a building used as a cafe. On June 14, 1966 they executed a ten year lease to J. II. Cameron and his wife who were to operate the cafe. Under the terms of the lease the Camerons were to make repairs necessary for the operation of a first class restaurant. About three months later J. A. Carver, d/b/a Carver Air Conditioning Co., (appellee herein) began work on installing an air conditioner and a heating unit in the cafe building for an agreed price — whether appellants or lessees were responsible for the “agreed price” was one of the issues raised at the trial.
Before installation of said units was completed the building was practically destroyed by fire on November 1, 1966. Following the fire appellants did not choose to rebuild and the Camerons ceased trying to operate the cafe.
Pleadings. On January 26, 1967, appellee filed a complaint in chancery court, seeking (a) to recover from appellants $1291 expended for labor and $1955 expended for materials being lost as a result of the fire, and (b) to establish a lien on appellants’ property to secure payment of the above items. Appellants pleaded a general denial and a cross-complaint against the Camerons alleging they were obligated, under the lease, to pay any amount due appellee. Answering the cross-complaint, the Camerons denied they were liable in any amount to appellee or appellants.
At the close of a hearing on the above issues the trial court made the following findings: appellants contracted with appellee for said installation; appellee is entitled to a judgment, or a quantum meruit basis, against appellants; said judgment is a lien on the premises (subject to a lien in favor of the Union Bank of Mena), and; when appellants satisfy said judgment they will be entitled to a judgment against the Camerons. The trial court retained jurisdiction to make any further necessary orders.
The court entered a judgment in favor of appellee in the amount of $2,727 which was less than was asked for, but appellee does not question the reduction hero. Also, the Camerons have not perfected their appeal.
For a reversal appellants here rely on three separate points which we now discuss in order.
One. Appellants’ first point is stated as follows:
“The court erred in its findings of fact and conclusion of law that Appellee is entitled to judgment based upon quantum meruit.”
As we understand the argument here it is contended (a) the evidence does not support the trial court’s finding that appellants authorized appellee to make said installations and (b) quantum meruit was not the proper measure of damages. We find no merit in either contention.
(a) The trial court found, and it is undisputed: that the fire was not the fault of any of the parties; that appellant first contacted appellee about the installations; that Bell told appellee to start work and, that appellants and appellee agreed on the price. In addition to the above the written lease agreement does no! require the Camerons to make this kind of repairs on the building. On the contrary it does give them the right (at the expiration of the lease) “to remove” an}r equipment installed by them. We do not think it is reasonable to presume that the lessees would have a right to remove any part of the real estate when the lease expired.
(b) Although, as appears from appellant’s excellent brief, the governing rule has not always been clearly stated, we think the equitable rule, and therefore the better rule, is that appellee should be allowed to recover, in this case, on a quantum meruit basis. In the case of Coley v. Green, 232 Ark. 289, 335 S.W. 2d 720, we find this statement:
“We come then to the difficult question as to the power of this Court to apportion the insurance proceeds on the basis of the repairs made. The older cases hold that, when a special contract had been performed only in part, then there could be no recovery on a quantum meruit basis. Simpson v. McDonald, 2 Ark. 370; Manuel v. Campbell, 3 Ark. 324. But over the years there has been a constant tendency to find a way to prevent the working party from losing his entire outlay. In Selig v. Botls, 128 Ark. 167, 193 S.W. 534, the Court in effect, divided the contract, and allowed recovery for the part that was performed; and in Mitchell v. Caplinger, 97 Ark. 278, 133 S.W. 1032, a contractor was allowed part recovery even though the owner had to make further expenditures to complete the building.”
In WiHiston and Thompson, Revised Edition on Contracts, Section 1975, at page 948, this statement appears :
‘ ‘ One who works upon a building or other property under an indivisible contract with the owner, requiring him to complete a certain task or accomplish a certain result, cannot perform his full undertaking if the building or property in question is destroyed. He is excused from liability for his failure, because the contract required the continued existence of the building. Equally clearly he cannot sue the owner for loss of profit. If the destruction of the building was without fault on the part of the latter, he, as well as the workman, is excused from liability on the contract. But most American decisions allow recovery on a quantum meruit for the value of the work which had been done prior to the destruction.”
Here, the record also reflects that part of the heater system was not destroyed and was of some benefit to appellants.
Two. It is next contended by appellants that the court erred in its findings of fact and conclusion of law that appellee is entitled to a lien on the property of appellant. Again we find no reversible error. It has been made clear by this Court that if an owner authorizes a contractor to make improvements on his land and fails to pay for same, the contractor is entitled to a lien on said land to secure payment under Ark. Stat. Ann. § 51-601 (1947) et seq.
Section 51-601, in material parts, reads:
“Every mechanic, builder... or other person who shall do or perform any work upon, or furnish any material... for any building, erection, improvement upon land ... under or by virtue of any contract with the owner ... shall have ... a lien upon such building ... and upon the land belonging to such owner...”
Since, as we have already held, appellants authorized the improvements in this case, appellee is entitled to a lien on the improved property under the above quoted statute. See: Whitcomb v. Gans, 90 Ark. 469, 119 S.W. 676, and Ark. Foundry Co. v. Farrell, 238 Ark. 757, 385 SAY. 2d 26.
Three. At the close of the testimony appellee moved that its pleadings be amended “to conform with the proof in view of the proof that’s been submitted”. The trial court granted the motion, and appellants excepted to the ruling for the reason that appellee’s complaint was based on a contract and it now seeks to recover on a quantum meruit basis. Again we are unable to agree because, we think, there is no showing that the trial court abused its discretion granted by statute. Ark. Stat. Ann. § 27-1160 (Repl. 1962), in part, provides:
“The Court may, at any time, in the furtherance of justice, and on such terms as may be proper, amend any pleading or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleadings or proceedings to the facts proved. The Court may likewise, in its discretion, allow an answer or reply to be made after the time limited by this code or by an order, enlarge such time.”
See also: Fuller et ux v. Fuller et ux, 240 Ark. 475, 400 S.W. 2d 283, Callahan v. Farm Equipment, Inc., 225 Ark. 547, 238 S.W. 2d 692, and; Antrim v. McKelroy, 229 Ark. 870, 319 S.W. 2d 209.
Finding no reversible error, the decree of the trial court is affirmed, and the canse is remanded for further required proceedings.
Fogleman, J., dissents in part.
John A. Fogleman, Justice.
I agree with the majority so far as the opinion goes; however, I would remand the case to the trial court for a determination by that court of the correct amount for which appellee is entitled to judgment against appellant Bell and the amount for which he is entitled to a lien on the property. As I read the briefs, appellant does challenge the correctness of the amount for which the trial court rendered judgment and granted a lien.
Appellants’ first point is as stated in the majority opinion. One of the court’s findings of fact was that Carver was entitled to recovery on a quantum meruit basis $2,724.00. The trial judge arrived at this amount by taking appellee’s proposal for the completed job on the basis of his estimate substantially as follows:
LABOR _____________________________ _______________________ $1,291.00
Shop built duct ____________ . $650.00
Prefabricated duct . . _ .... 421.40
Grills & registers ............. 163.95
Duct insulation ......... 125.00
Furnaces (2); 10 ton cooling coil; 1 thermostat and 1
thermostat switch base . ... 594.65 1,955.00
CONDENSING UNIT & CONNECTING PIPES _______________________________________ 2,198.85
$5,444.85
The trial judge deducted from the labor item fifty cents per man hour, leaving $1,119.00. The testimony of Carver was that he actually paid only $3.00 per hour, leaving a profit of seventy-five cents per hour on labor. The court made an allowance against this seventy-five cents per hour for supervisory expense. The trial judge also deducted $350.00 for the two furnaces removed from the building by Carver and which are useable, stating that Carver was willing to keep them. He deducted this $350.00 from the $1,955 item, leaving $1,605.00. This amount, with the balance he allowed for labor, makes up the total of $2,724.00.
I am unable to find anything in the record on which the deduction of $350.00 was based and I am also unable to find any evidence in the record of any allowance for duct work removed by Carver and retained by him which is useable.
Since these findings of fact relate to the judgment which the court based upon quantum meruit, I think that the appellant argued the question sufficiently to require our consideration. In addition to his statement on the point, he specifically states:
"For an added reason the decree is not supported by the findings of fact. Quantum meruit is measured by the value of the benefit bestowed upon the Defendant rather than the detriment incurred by the Plaintiff. Dunn v. Phoenix Village, Inc., supra. [213 F. Supp. 936 (D. C. Ark. 1963)]. Appellee failed to show benefit but consistently sought to prove his entitlements under the contract originally alleged, less that part remaining unperformed. The court did not make a finding of benefit to Appellant. It used the contract figures, including possible profits built into the contract prices. The court arbitrarily deducted Fifty Cents ($.50) per hour from the price of the labor as reflected on Plaintiff’s exhibit #6 as profits from the labor. It deducted Three Hundred Fifty Dollars ($350.00) from the price of materials representing the value of furnaces which Appellee now has in his possession, again, arbitrarily. No proof was offered to this effect. Some of the work alleged must have gone into the installation of the furnaces. All of the work product is gone from the building. Appellant has none of the ‘benefits’ remaining in his possession.”
It thus appears to me that appellee failed to meet his burden of proof for recovery on quantum meruit. According to the weight of authority, the measure of recovery under the circumstances prevailing here is the reasonable value of labor performed and material furnished. See, Anno., 170 ALR 980. Evidence of the contractor’s estimates may be admissible as having some bearing on the recoverable values, but I do not feel that the evidence offered here is sufficient.
While there is testimony by Carver that he had approximately 18% overhead costs that had to be borne by labor, the relationship of this to the reasonable value of labor and materials does not appear. Furthermore, at different times, Carver, admitting that he took into consideration a reasonable profit on the job, testified that a reasonable profit would be 25%, but he later testified that he should have 10% profit. While profits might reasonably be considered along with evidence going to the question of reasonable value of labor and materials for the basis of recovery against Bell, still there can be no lien for profits. Withrow v. Wright, 215 Ark. 654, 222 S.W. 2d 809; Cook v. Moore, 152 Ark. 590, 239 S.W. 750.
I feel that we are in somewhat the same position in which the court found itself in Withrow v. Wright, supra, where the case was remanded for a determination by the trial court of the amount for which a claimant was entitled to a lien. I would follow that precedent in this case. | [
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Lyre Brown, Justice.
Life & Casualty Insurance Company of Tennessee prosecutes this appeal from a judgment favoring Leopal C. Smith, widow of the insured, W. D. Smith. The application attached to the nonmedieai policy showed the insured to have been in good health. The essential contentions determinative of the appeal are to the effect that Smith was then suffering from physical ailments material to the issuance of the policy; and that the failure to reveal those ailments constituted a fraud which vitiated the policy.
In January 1965, W. D. Smith signed an application for insurance in which a “no” answer was inserted to the following questions:
“17. Is any person proposed for coverage NOT in good health?
19. Is there any history of diabetes, cancer, heart trouble, high blood pressure, mental illness or insanity in the family?
21. Has any person proposed for coverage been treated for or received a physician’s advice concerning
(a) High blood pressure, rheumatic fever, heart trouble, dizziness, syphilis? . . .
(i) Blood, albumin, or sugar in urine?
22. Has any person proposed for coverage
(a) Had any illness, disease, or injury in the past ten years not included in answers above?
(b) Been examined or treated for any reason not included in answers above?”
Dr. Floyd Smith was W. D. Smith’s physician. Dr. Smith testified that he began treating W. D. Smith in 1954 and attended him until death; that W. D. Smith visited his office in March, April, May, and August 1962, in relation to hypertension. In addition, Dr. Eldon F. Caffery testified that W. D. Smith was referred to his office by Dr. Floyd Smith. He testified that he saw W. D. Smith on November 18, 1960, had him go to the hospital November 21 for kidney x-rays, saw him on the 22nd and advised him of the results of the x-rays. The diagnosis was high blood pressure and albumin in the urine. A similar diagnosis was made in Dr. Caffery’s office in 1965.
The proof showed that W. D. Smith died in 1965 of uremia. The death certificate also showed than an antecedent cause was chronic glomerulonephritis.
Ark. Stat. Ann. § 66-3208 (Repl. 1966) provides:
Representations in applications. — (1) All statements in any application for a life or disability insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount or at the same premium rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise ... [Acts 1959, No. 148 § 275, p.418].
The trial court instructed the jury that appellee would not be barred from recovery unless the insurer established that the deceased knowingly and fraudulently made false statements which induced the issuance of the policy. That statement was not complete in view of Act 148 of 1959. When the insurer in good faith would not have issued the policy except for omissions material to the risk, or incorrect statements likewise material, the policy is subject to voidance during the contestable period. Dopson v. Metropolitan Life Ins. Co., 244 Ark. 659, 426 S.W. 2d 410 (1968) The word “material” is absent from subsection (c); however, that section requires good faith on the part of the insurer. If the matter omitted or incorrectly stated could logically have no bearing on the assumption of the risk then it could not, be successfully argued that the insurer’s “good faith” defense should prevail.
Our holding in Dopson is in accord with one of the leading* authorities, Conch on Insurance 2d, § 35:24, where it is stated:
“If it is shown that the misrepresented matter was material to or increased the risk it is immaterial and irrelevant that the insured had acted in good faith without any bad motive or intent to deceive. This means that if a representation is made which is untrue and material it taints the contract, whether fraudulent or not, and, if untrue and fraudulent, it taints the contract, whether material or not.”
To the same effect see Langlois v. The Wisconsin National Life Ins. Co., 119 N/W. 2d 400 (Wise. 1963). It was there held that an intent to deceive need not be established. “It was enough to prove the making of the misrepresentation and its effect upon the risk undertaken.”
With reference to the alleged harshness of the rule, it should be remembered that the insurer has only two years in which to contest the truthfulness of statements in the application; after that period they are incontestable. See Ark. Stat. Ann. § 66-3304 (Repl. 1966).
Furthermore, Smith was more capable than the average man of contracting, being a part-time pastor and a United States mail clerk. And, just above Ms signature and in clear print, it is stated that “applicant represents the foregoing statements and answers ... to be true and complete.”
The essential facts appear to have been fully developed in the trial below. Medical testimony from two doctors who examined and treated the deceased reflected serious physical ailments which proved to be fatal; that their findings were made known to W. D. Smith; and that the findings were of such serious nature as to call for hospitalization (Smith declined to follow that advice). The insurance agent who took the application, and whose credibility was not seriously questioned, testified that he filled in the answers to the medical questions in the presence of the applicant and on the basis of information supplied then and there by W. D. Smith. No testimony was offered to the contrary. Life & Casualty’s officer in charge of the department which evaluates insurance applications testified that knowledge of the true medical history would have precluded them from writing the policy.
Reversed and dismissed.
Holt, J., not participating. | [
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Conley Byrd, Justice.
The issue on this appeal is whether the notice given by the insured to appellant Commercial Standard Insurance Companies constitutes a substantial compliance with the policy provision requiring written notice of an accident to the company or any of its authorized agents as soon as practicable.
The record shows that Commercial through its agent Charles Perry had issued a liability policy to Gfuy H. Jones Sr. and that the policy was in force on March 1, 1967 when Senator Jones’ son, Casey, hacked the Senator’s car into an automobile belonging to appellee Ashley R. Coffman. The damages to Mr. Coffman’s car were $72.21.
The Senator testified that when he learned of the accident, he called Mr. Perry’s office and reported it to one of Perry’s secretaries. On April 28, 1967 and again on July 3, 1967 Mr. Coffman wrote letters to the Senator requesting his check for $72.21 to cover the loss. Mr. Perry, at the same time, had some problems with the Insurance Commissioner and was being represented by the Senator. The Senator admits that he did not give written notice over his signature but says that he may have shown Mr. Coffman’s letters to Mr. Perry in his office, but thinks that he sent them on to Mr. Perry.
Jack Henderson, an adjuster for Mr. Coffman’s insurance carrier, took the repair estimates for Mr. Coffman’s car to Senator Jones. When he learned that the Senator had his insurance with Mr. Perry, he took the estimates to Mr. Perry’s office at the Senator’s request. When Mr. Henderson offered the estimates to Mr. Perry’s office help, he was informed that the Senator did not have insurance there at that time and that there was no coverage for the car and driver involved in the collision with Mr. Coffman.
When Mr. Coffman brought suit against Casey Jones under the small claims statute, the summons was given to Mr. Robert Ott, Commercial agent succeeding Mr. Peny, but Commercial denied liability and refused to defend. The Senator’s law partner, appellee Phil Stratton, was employed to defend Casey in Mr. Coffman’s suit.
When Mr. Coffman’s judgment against Casey was not paid, he brought this action directly against Commercial, pursuant to Ark. Stat. Ann. § 66-4001 (Repl. 1966), for the amount of the judgment, statutory penalty and attorney’s fees. Mr. Stratton intervened claiming $150.00 Attorney’s fee for defending Mr. Coffman’s action against Casey. 'The trial court found that there was substantial compliance with the written notice provision and entered judgment as prayed together with an attorney’s fee of $225.00.
For reversal Commercial relies upon the following-two points:
1. The trial court erred in ruling that Guy H. Jones Sr. had complied with the terms and conditions of his policy regarding written notice of the accident, and
2. That trial court erred in awarding judgment to intervenor, Phil Stratton, for legal services performed on behalf of Casey R. Jones.
Commercial does not argue the latter point and we consider it waived. The first point we consider to be without merit.
Commercial’s policy, on the issue of notice provides: “In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable____”
Mr. Coffman’s letter of April 28th, to Senator Jones reads:
“Dear Mr. Jones,
I have tried to reach you by phone on numerous occasions to ask you for a check for $72.21 to cover the costs of repairs to my Pontiac when your son, Casey, backed into it at the Tasty Freeze Wednesday, March 1, 1967. The police have a complete record of the accident in case you want to check into the matter.
I am enclosing a duplicate copy of the bill. Will you be kind enough to let me have a check for this amount?
Sincerely,
Ashley R. Coffman.”
Obviously Mr. Coffman’s letter would comply with the written notice requirements of the policy if it bad been turned over to Commercial’s agent. Whether the letter was turned over to the agent was an issue of fact before the trial court. On that issue the trial court found against Commercial and, as we have shown, there is substantial evidence in the record to support such finding.
Affirmed. Appellee’s Counsel are granted an additional fee of $250.00 for their services on this appeal.
Brown and Fogleman, JJ., dissent. | [
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Lyle Brown, Justice.
This tort action arose out of a two car collision. Appellee, Cooper, recovered $7,-000 against Lumbermens Mutual Insurance Company under the uninsured motorist provision of Cooper’s pol icy. Lumbermens Mutual insists there was no evidence of negligence on the part of Willie Walker, the uninsured motorist, and, alternatively, that the verdict was excessive.
Cooper lives in a rural area north of Plummerville in Conway County. State Highway 92 is, at the situs of the collision, a two-lane asphalt road with curves and hills typical of that general area. Cooper was on his way to Sunday School, accompanied by two grandchildren. Following him was Willie Walker, a part-time preacher who was on his way to fill the pulpit at a church farther down the highway than Cooper’s church. As Cooper approached his destination he made a left turn to enter the roadway leading into the churchyard. At a point'where Cooper’s pickup was half off the asphalt and half on the shoulder entrance to the church drive, Walker struck Cooper’s pickup at the left front door, pushing the truck some 200 feet down the highway.
The trial court, sitting as a jury, placed full blame on Willie Walker. We are unable to say that finding is not supported by substantial evidence. Walker was 76 years of age, born in the area, fished the creek next to Cooper’s church, and was well aware of the exit road leading to the church; Cooper was driving at a speed which of itself could be indicative that he intended to turn into the churchyard; and there were cars already parked in the area, making it apparent that services were being conducted. Notwithstanding, Walker, who was already driving about forty miles per hour on the hilly road, increased his speed and went into an overtaking and passing movement, knocking the Cooper vehicle a considerable distance. The trial court commented that under the circumstances Walker’s speed was reckless, and we agree.
Cooper’s version of the accident is far from flawless. Contrary to the contents of his discovery deposition, Cooper testified that at a distance of 120 feet from the turnoff he started his left turn signal and eased gradually to his left across the center line; that he could then see Walker in the mirror and Walker was judged to be a safe distance behind. If that version of Cooper’s activities is correct, then the trial court was justified in placing full fault on the other driver. Walker and one other witness — his wife — contradicted Cooper. The findings of fact cannot be disturbed on appeal merely because of apparent contradictions of the claimant which, when added to other make-weights, may appear to place Cooper’s testimony against the weight of the evidence. We must be able to go further and say there is no reasonable probability in favor of Cooper’s testimony, and then only after giving legitimate effect to the presumption in favor of the jury, or trial court’s, findings. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935).
A closer question is presented with respect to the amount of recovery. The judgment must be evaluated on the basis of the nature and duration of any injury and any resulting suffering. There is no competent evidence on which loss of earnings can be predicated, no medical expenses (they having been paid under the terms of the policy), and no claim for property damage. Noah Cooper offered this evidence of injuries and resulting pain: Dr. Hickey’s physical findings were “pain or tenderness, muscle spasm in the region of his neck, or cervical spine, tenderness of a portion of his skull, with limitation of motion of the cervical spine; he had tenderness over the anterior chest wall”; and x-rays were negative for fracture or dislocation. The doctor concluded that Cooper suffered a cerebral concussion, sprain of the cervical spine, contusion of the skull, contusion of the anterior chest wall, and sprain of the dorsal and lumbar spine; from the day after the accident (December) until March, the doctor prescribed nerve medicine, muscle relaxants, analgesics, and sedation, together with ACTH; that course was resumed the following September and continued for two months; pa tient suffered pain during the periods of treatment; doctor is informed patient continues to take considerable amount of aspirin and nerve medication; he will continue to have pain from time to time; and there is a probability of from five to ten per cent permanent partial disability, but more time is needed to confirm.
Cooper testified as to pain resulting from the more strenuous movements involved in carpentry, his trade; lie sold a small herd of livestock, so he testified, partly because it was painful to perform some of the incidental duties, such as handling bales of hay. He continued with his carpentry work and earned more money the following year than the year preceding the collision; however, he detailed particular carpentry chores which produced pain and forced him to do less manual labor, particularly for continued periods. Dr. Hickey testified that a man sixty-one years of age would be less likely to “bounce back” from Cooper’s type of injury than would a younger man, and that his need for medication would continue indefinitely — ‘ ‘ analgesics, sedatives, nerve medication.”
While we unhesitatingly find the verdict to be liberal, based on the record, we did not have the advantage of listening to the claimant and observing his demeanor on and off the witness stand. We cannot say the verdict is excessive.
Affirmed. | [
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Conley Byrd, Justice.
Appellant, MFA Mutual Insurance Company, issued simultaneously to' Arnell J. Wallace its two separate automobile liability policies, one being policy 3STo. 3-1-876871-001 on a 1962 Pontiac automobile, and the other No. 3-1-876871-002 on a 1960 Buick automobile. Both policies contained uninsured motorist coverage in the amount of $10,000. Mary Ann Wallace, an insured under the policies, was injured in an uninsured automobile owned by Jerry W. Franklin resulting in her death. tier medical bills exceeded $12,000. After suit was filed but prior to trial MFA paid the $10,000 under the uninsured motorist coverage on policy No. 2, but denied liability on the other policy because of the “other insurance clause.” The trial court held that the “other insurance clause” was contrary to Ark. Stat. Ann. § 66-4003 (Repl. 1966) and awarded judgment against MFA for $10,000 on policy No. 1 in favor of Arnell J. Wallace, Special Administrator of the Estate of Mary Ann Wallace, deceased.
The “other insurance clause” in MFA’s policy provides :
“5. Other Automobile Insurance in the Company — With respect to any occurrence, accident, death, or loss to vdrich this and any other automobile insurance policy issued to the named insured or spouse by the Company also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one policy.”
Ark. Stat. Ann. § 66-4003 provides:
“No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or' issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in not less than limits described in section 27 of Act 347 of 1953 [§ 75-1427], as amended, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section .shall not be applicable where any insured named in the policy shall reject the coverage.”
Section 27 of Act 347 of 1953 as amended (Ark. Stat. Ann. § 75-1427 [Supp. 1967]) is that portion of the Motor Vehicle Safety Responsibility Act requiring minimum limits of not less than $10,000 because of bodily injury to or death of one person in any one accident and not less than $20,000 because of bodily injury to or death of two or more persons.
In Varvil v. MFA, 243 Ark. 692, 421 S.W. 2d 346 (1967), we gave full effect to the “other insurance clause” here involved, as applied to funeral benefits under two automobile liability policies issued by MFA. Appellee concedes that the “other insurance clause” Avould equally apply here were it not for the statute quoted above.
The cases interpreting uninsured motorist statutes go both ways on the issue of stacking multiple policies covering the same accident or injury, Safeco Insurance Company v. Robey, 399 F. 2d 330, (8th Cir. 1968). However, in looking at the terms and purpose of our statute, Ave find that the “other insurance clause” is not repugnant to Ark. Stat. Ann. § 66-4003, supra. Here MFA furnished uninsured motorist coverage “in not less than limits described . . .” in the Safety Responsibility Act. Furthermore, since the purpose of the statute is “for the protection of persons insured . . . who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ...” it is obvious that the statute was not designed to provide the insured Avith greater insurance protection than would have been available had the insured been injured by an operator AAdth a policy containing the minimum statutory limits required by the Motor Vehicle Safety Responsibility Act, Ark. Stat. Ann. § 75-1427 (Supp. 1967). See Maryland Casualty Company v. Howe, 106 N.H. 422, 213 A. 2d 420 (1965).
Reversed. | [
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Carreton Harris, Chief Justice.
On August 17, 1965, appellee, Clifton Baker, applied to Reserve Life Insurance Company, appellant herein, for a hospital and surgical expense policy. The application was completed by Pat Curry, an agent for appellant, signed by appellee, and forwarded on to the company office in Dallas. Thereafter, a policy, as sought, was issued to Baker. On June 6, 1966, appellee entered a hospital for prostatitis, and hospital and surgical expenses were incurred as a result of surgery on the prostate gland by endoscopic means. A claim for benefits was filed by Baker, but the company denied liability, asserting that appellee had misrepresented the state of his health in answering certain questions in the application, it being the position of the company that it would not have issued the policy, had it known that Baker had chronic prostatitis in February, 1960. A company official testified that the questions on the application affected appellant’s decision on whether to accept the risk, and that the decision to issue the contract was materially affected by the answers given by applicant to questions No. 6 and No. 8. These questions will be fully set out subsequently. Upon refusal of the company to pay the claim, Baker instituted suit in the Bradley County Circuit Court, and the case was tried by the court, sitting as a jury. Judgment was entered for appellee in the sum of $470.00 for benefits under the policy, together with 12% penalty, an attorney’s fee in the amount of $250.00, and costs. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the trial court erred in failing to hold the policy void for misrepresentation; that there was no substantial evidence to support the judgment; and that the court erred in awarding penalty and attorney’s fee.
Question No. 8, the answers to which are principally relied on by appellant for reversal, reads as follows:
“Have you or any Member of the Family Group ever had, or ever been advised such person had, any of the following:
(a) Any disease of the heart, kidneys, stomach, urinary or gall bladder, rectum or respiratory system?
(b) High blood pressure, paralysis, arthritis, syphilis ?
(c) Cancer, diabetes, hernia, goitre, or asthma?
If answer is ‘yes,’ give full details.”
All of these questions were answered, “No.” The evidence reflects that in February, 1960, Baker had trouble with his prostate gland, and was treated by Dr. Bill Whaley, a physician at Warren. Dr. Whaley’s records reflected that he had given Baker a prostate massage on three occasions during that month. Dr. Whaley did not see appellee for that condition at any subsequent time. In arguing this case, counsel do so on the basis that the question asked in (a), “urinary or gall bladder,” referred to the urinary system. For instance, from appellant’s brief:
“In concluding that the prior diseased condition of the urinary system was too remote to be considered, the trial court erred.”
Gladys Anderson, Vice President in charge of the Disability Underwriting Department of the company, testified that if the application had shown that appellee had had chronic prostatitis, or received medical treatment for this in February, 1960, the application would have been rejected, the medical history not meeting the underwriting requirements for the type of policy issued to Baker.
In its brief, appellant then states:
“Under these circumstances, the trial court failed to consider the decisive issue, whether, under the circumstances, the false statements of the appellee’s chronic prostatism precludes recovery.”
It is true that no information was given relative to any trouble with the prostate, though as already stated, the record reflects that, in 1960, Baker had been treated for prostatitis (though he denied having received treatment)- — but we see no need to discuss the question of misrepresentation, because actually, there is no question relative to the prostate or prostatitis. It will be noted that Question 8(a), the pertinent question in this litigation, relates in every respect to organs of the body, except the very last question which is, ‘ ‘ respiratory system.” Other than the last, each refers to a particular organ, and each reference to a particular organ is set off by a comma. The clause involved in this litigation is “urinary or gall bladder, ***” and there is no mention of urinary tract or urinary system; the reference is to the urinary bladder. Volume 2, Schmidt’s Attorneys’ Dictionary of Medicine, Page 853, defines urinary bladder, as follows:
“Same as "bladder. The term urinary bladder is used more specifically to differentiate it from the gall bladder or gallbladder. However, this seems to be an unnecessary refinement, since the term bladder when not otherwise modified, refers to the urinary bladder by the force of established usage.”
It is thus quite clear that Question (a) uses the word, urinary, to differentiate that bladder from the gall bladder, and has no reference whatsoever to the urinary tract or system .
Accordingly, there being no question in the application with regard to the prostate or to the disease of prostatitis, it necessarily follows that there can be no false answer. In other words, if the company desires information relative to any disease or infection of the prostate gland, it had best revise its application.
Question No. 6 simply asks if applicant and all members of the family group are now in good health, and this question was answered, “Yes.” There is no showing that Baker was not in good health at the time of the application.
Question No. 9 inquires if applicant or any member of the family group has received medical or surgical advice or treatment within the past five years. This question was answered, “No.” The record does reflect that Baker had low back pain in July of 1963, and also consulted Dr. Whaley in January, 1966, for dizziness, sore throat and nasal congestion. However, the doctor stated that he did not see appellee for any complaints related to the prostate gland after February of 1960, and did not consider the low back pain as neces sarily related to that trouble. In other words, this answer, though not correct, was not a material misrepresentation, because appellee had not, within the last past five years, consulted the physician about the difficulty which occasioned the operation.
Since, as previously set out, no questions were aslced about the prostate, the judgment of the trial court is affirmed, though its ruling was based on an erroneous premise.
Baker obtained judgment in the amount of $470.00, which includes a benefit of $25.00 for anesthetic, and a $25.00 benefit for narcotics. The policy provides for both, but the bill submitted by the hospital only lists a charge of $144.25 for drugs. Appellant asserts that there is no proof that any narcotics were used. This objection is somewhat technical. While the use of the term “drug” does not necessarily imply narcotic or sedative properties, the word “narcotic” is defined in the medical dictionary, heretofore quoted, at Page 536, as, “A medicinal substance or drug which, when taken in sufficiently large doses, produces profound stupor or complete insensibility. In smaller doses it relieves pain without causing stupor.” While all narcotics are drugs, all drugs are not narcotics, but apparently the words are often used interchangeably. The type of operation performed on Baker would seem to call for the use of narcotics. Be that as it may, the record does not reflect any objection to the introduction of the hospital bill.
The total amount sued for was $495.00, and the recovery was $470.00. The amount sought for surgical expense was $125.00, but the policy provides that the company will only pay $100.00 for a prostate operation by endoscopic means. Accordingly, appellant contends that tbe amount sued for was not recovered, and it is not liable for penalty and attorney’s fee. Tbe record shows that at the conclusion of all the evidence, the court held that the amount asked for in the complaint covering surgery was an error, and “that the plaintiff did not seek more than the policy provided.” In rendering the judgment, the court held the complaint amended to conform to the proof, and granted the penalty and attorney’s fee.
We have permitted this to be done in numerous cases, but only after the insurer had an opportunity to confess judgment for the lesser amount. In Progressive Life Insurance Company v. Hulbert, 196 Ark. 352, 118 S.W. 2d 268, Hulbert sued for $400.00, and asked an instruction telling the jury that the verdict should be for that sum if the jury found for the plaintiff. The trial court was of the opinion that, under the terms of the policy, a recovery could not be had for more than $266.67; Hulbert then amended her complaint reducing the amount sued for to that figure, and requested an instruction telling the jury that the verdict should be for that sum if the company should be found liable. In affirming, we said:
“But the sum finally sued for was $266.67, and it was within the discretion of the court to permit this amendment. Had the insurance company offered to confess judgment for this amount when the complaint was amended it would have been proper to enter a judgment for that amount without penalty or attorney’s fee. But this was not done. The defendant then insisted, and now insists that the plaintiff was not entitled to recover anything.
“It was not error, therefore, to award judgment for the penalty provided by statute, and for the attorney’s fee, which does not appear to be excessive. ’ ’
See also DeSoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S.W. 2d 243; Old American Life Insurance Company v. Harvey, 242 Ark. 720, 415 S.W. 2d 66. Here, appellant did not contend that appellee was seeking an excessive amount; it simply contended, as is contended on this appeal, that the company was not liable.
The judgment is thus affirmed. Appellee asks for an additional attorney’s fee for services rendered on this appeal, and we think it proper to allow $100.00.
It is so ordered.
This was the holding of the court.
All italicized words in the definition denote our emphasis.
Even if there were a question relating to this system, persons not familiar with medical terminology might well never connect this with trouble from the prostate gland.
The trial court held that the testimony tending to show that Baker “was afflicted with any disease of the urinary system before issuance of the policy or the effective date of the policy was too remote and should not be considered ***.”
A $200.00 benefit is provided for an open operation.
The court was also confused in the amount, stating that the figure of $150.00 contended for (actually $125.00) was an error, but the judgment provided that the sum should have been $75.00 tor surgery, whereas the correct amount was $100.00. | [
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George Rose Smith, Justice.
In these two cases, one criminal and the other civil, the clerk of this court refused to accept the tendered records on the ground that in each case an essential procedural step had been taken too late. Each appellant filed a motion for a rule on the clerk, under our Rule 5. We are disposing of both motions in one opinion, because the controlling issue is common to both cases.
In Wallis v. State the judgment below was entered on March 26, 1968. Under the statute the 60-day time for appeal may be extended by the trial judge by an order entered prior to the expiration of the original 60 days. Ark. Stat. Ann. § 43-2701 (Repl. 1964). Here the appellant did not obtain an extension order until May 27, which was the 62nd day. It is shown, however, that the county courthouse was closed on the 60th and 61st days, because they were Saturday and Sunday.
In the civil case the movant mailed the record in Fort Smith in time for it to reach our clerk’s office on June 8, 1968, which was the last day allowed for the filing of the record. The record was not actually delivered to the clerk’s office until June 10, because June 8 was a Saturday- For a number of years the offices in the state capitol and its adjacent buildings — including our clerk’s office- — have been closed on Saturday as well as on Sunday. No mail is delivered to those offices on either day.
We hold that the litigants acted within time. The legislature certainly meant for the parties to have the full time allowed by the statutes. It is a fair and familiar rule that no one should be prejudiced by the action of the court. Bartlett v. Standard Life and Acci dent Insurance Company 223 Ark. 37, 264 S.W. 2d 46 (1954). We see no real difference between these cases and that of Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W. 2d 468 (1964). There the offices of the Workmen’s Compensation Commission were customarily closed on Saturday and Sunday. We held that where the last day for filing a claim fell on Saturday, the claim was timely when it reached the Commission by mail on the following Monday. Our reasoning in that case applies with equal force to the ones at bar. Unless the governing statute should inescapably compel the contrary conclusion, we adopt the rule that when in a judicial proceeding the last day for a litigant’s action falls on Saturday or Sunday or a holiday, and the closing of a public office prevents him from taking the necessary action on the designated day, his time is thereby extended to the next day on which the office in question is open for business.
The clerk is directed to file both records.
Fogleman, J., disqualified in No. 5381. | [
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Lyle Brown, Justice.
This is a slip-and-fall case. Mrs. Hemphill recovered judgment against The Kroger Company and the manager of its Morrilton store, C. E. Jackson. Defendants appeal from the refusal of the trial court to grant motions for a directed verdict which were made at the conclusion of plaintiff’s testimony and again at the close of all the testimony.
On the question of liability Mr. and Mrs. Hemphill were claimant’s only witnesses and their testimony can be summarized in a few sentences. Around its modern store in Morrilton, Kroger maintains an asphalt parking area of considerable size, with marked spaces. The Hemphills drove onto the lot on a Saturday in September. It was around noon and the weather was fair and sunny. The parking spaces appeared to be filled so Mr. Hemphill parked in an unmarked area in the general proximity of the front doors to the store. As Mrs. Hemphill alighted from the car she stepped on a banana, the color of which was yellow “and it was turning dark.” After Mrs. Hemphill was helped to her feet, the store manager was directed to the scene where he retrieved the remains of the banana and threw it in a nearby trash can.
Appellant Jackson, the store manager, described the precautions customarily followed to reduce the danger of accidents such as Mrs. Hemphill’s. He checks the outside early each morning when the lot is free of cars. The employees delivering groceries to customers’ cars are instructed to pick up any foreign objects on the parking lot. The area is swept periodically. He has no employee whose exclusive responsibility is to pick up debris on the parking lot.
We agree with appellee’s counsel that this case hinges on whether the proof is adequate to show the banana to have been on the parking lot for a time sufficient to find appellants negligent in failing to discover it. There was no testimony as to when, or by whom, the banana was deposited on tbe lot, or from whence it came.
The only evidence shedding light on the time element is the condition of the banana. It is evident that the peeling contained either all or a substantial part of the pulp. Mrs. Hemphill testified that a good portion of the pulp stuck to her shoe and her husband removed it. She said it was in the shape of an unpeeled banana and it squashed when she stepped on it. As to color, she said the banana “was yellow and it was turning dark.” Her husband testified: “I really — the banana was yellow, and it was beginning to turn dark, and it was squshed.”
There are numerous cases from other jurisdictions wherein the condition of the foreign object is used with approval to determine the length of time it has remained in a particular place where it is likely to cause injury. A case often cited in that regard is Anjou v. Boston Elevated Ry. Co., 94 N.E. 386 (Mass. 1911). The banana peel on the carrier’s platform was described in these terms: “It felt dry, gritty, as if there were dirt on it,” . . . “trampled over a good deal,” . . . “flattened down, black in color, ...” There it was held that those descriptions made a jury question on time element. In a much later case a banana peeling was described as “four inches long, all black, all pressed down, dirty, covered with sand and gravel, dry and gritty looking.” It was held those facts warranted an inference of negligence on the part of the bus company or its servant. Scaccia v. Boston Elevated Ry. Co., 57 N.E. 2d 763 (Mass. 1944). To the same effect see Great Atlantic & Pacific Tea Co. v. Popkins, 69 So. 2d 274 (Ala. 1953).
It was incumbent on Mrs. Hemphill to show by substantial testimony that the banana had been in the parking area an unreasonable length of time. Kroger Grocery & Baking Co. v. Dempsey, 201 Ark. 71, 143 S.W. 2d 564 (1940). The most she established was that a yellow banana, which she found in the early stages of changing color, had been dropped or thrown by an unknown person, in the area near where her husband parked. That proof does not begin to carry the strength of the evidence which we have recited from approved cases.
A problem similar to the case at bar is found in Owen v. Kroger Co., 238 Ark. 413, 382 S.W. 2d 192 (1964). There we held that a case was made for the jury as to the length of time the banana peeling had been on the floor. But there the jury could have found that the peeling had been left on the floor for a substantial time by small boys; that a store employee was aware that the boys had been eating bananas in the store earlier in the day; that the intervening time was sufficient to cause the peeling to become dark; and that the store employees failed to take reasonable precaution to discover the presence of the object. Another distinction between Owen and this case is that in Owen the peeling was inside the store. Common knowledge would dictate that a foreign object in an aisle inside the store would, or should, ordinarily be discovered sooner than if the same object were placed on a parking lot. That is because most store personnel are confined to the store quarters and are constantly working the aisles.
This case must be reversed and, as was done in Dempsey, dismissed, since it appears to have been fully developed.
Reversed and dismissed.
Harris, C.J., dissents.
The Chief Justice is of opinion there was sufficient evidence to take the case to the jury and would affirm. | [
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George Rose Smith, Justice.
In 1962 the appellant, then seventeen years old, suffered, the loss of his right index finger while operating a welding machine at Mountain Home. He brought this action against the appellee, Capital Welding Supply Company, upon the theory that the company had negligently failed to repair a defect in the welding machine, with the result that the plaintiff was injured. The plaintiff was the only witness who testified at the trial. At the conclusion of that testimony and before the plaintiff had rested his case the trial court directed a verdict for the defendant, on the ground that the plaintiff had assumed the risk of the defect that caused his injury. The correctness of that ruling is the main issue on appeal.
During the week preceding his injury the plaintiff, David Bone, had been working for his uncle at Malvern. They were using a portable gasoline-powered welder. The gasoline engine ordinarily idled at a slow speed, but when the operator began the welding process the engine was supposed to accelerate to a speed sufficient to provide the electric current needed for welding metal. At Malvern, however, it was found that the engine did not always automatically “rev” up to high speed. The operator could accelerate the engine by shaking a rod that was located within a few inches of a metal fan.
On the weekend after the completion of the Malvern job David’s uncle left the welding machine at the appellee’s shop in Little Rock for the necessary repairs. On Monday David and his uncle picked up' the machine and drove to Mountain Home to work on another job. They discovered that the machine was still not working properly, but the eider Bone was unwilling to take the time to return the equipment to Little Rock. On Thursday, while David was attempting to accelerate the engine manually, his hand in some way came in contact with the fan, which severed his finger.
We think the trial court erred in directing a verdict, especially in view of the fact that the plaintiff had not yet completed his proof. Counsel for the appellee rely upon our holding in Spradlin v. Klump, 244 Ark. 841, 427 S.W. 2d 542 (1968), but there are two significant differences between the cases. There the plaintiff was a mature experienced workman; here David was an inexperienced boy. There Spradlin fully appreciated the risks that he was taking; here David’s testimony, construed most favorably to him, would have justified the jury in finding that owing to his inexperience lie thought that the particular method by which he tried to accelerate the machine involved no danger to him. In fact, he stated that he would not have done what he did if he had thought that there was any possibility of getting his hand into the fan. Under such decisions as Everton Silica Sand Co. v. Hicks, 197 Ark. 980, 125 S.W. 2d 798 (1939), there was an issue of fact for the jury.
A subordinate issue involves the use of David’s discovery deposition. On cross-examination counsel for the defendant read a number of questions and answers from that deposition and elicited David’s admission of their accuracy. On redirect examination the court refused to allow counsel for the plaintiff to clarify those answers by referring to other parts of the deposition. In fairness to the plaintiff the proposed clarification should have been permitted. As we construe the statute, the defendant in effect offered part of the deposi tion in evidence, thereby entitling the plaintiff to bring in other relevant excerpts that were admissible under the rules of evidence. Ark. Stat. Ann. §28-348 (d) and (d,4) (Eepl. 1962).
Reversed. | [
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Carleton Harris, Chief Justice.
C. L. Sanders, appellant herein, was charged with murder in the first degree by Information filed on December 26, 1967, the charge being that he murdered Hughlin Dean Ramey on Christmas Day of the same year. Subsequently, upon motion of the Prosecuting Attorney, the charge was reduced to second degree murder; on trial, the jury returned a verdict finding appellant guilty of the crime of voluntary manslaughter, and his punishment was fixed at a term of two years in the State Penitentiary. From the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the verdict of the jury was contrary to the evidence, and second, that the court erred in refusing to permit testimony offered by appellant concerning prior specific acts of aggression and misconduct toward others, appellant asserting that this showed that the deceased was a violent person.
The evidence reflected that Ramey, on the date of his death, was living on property owned by Sanders, such property being located across the road from a neighbor named Alan Gentry. Ramey had moved to the Sanders place about two weeks before, and in fact, had worked for Sanders on previous occasions. Late on the afternoon of Christmas Day, Sanders, accompanied by Friday Robinson and Sam Willis, drove to the home of Gentry to see about a hog. Gentry testified that he could smell alcohol on Sanders’ breath while they were talking. According to this witness, as Sanders started driving back down the road, Ramey came out of his house, stopping the Sanders truck, and Gentry heard Ramey ask Sanders for a drink of whiskey. He did not hear the reply, but did hear Ramey say to Sanders, “I know you have got some whiskey.” The Sanders truck was stopped right in front of the Gentry house, and was about 30 feet from a car owned by Ramey which was parked by Ramey’s yard gate on his side of the road. Gentry went on into his home.
Mitchell Gentry, 15-year-old son of Alan, testified that he was looking out the window of the home, and saw the Sanders truck stop close to Ramey’s car in the road between the Gentry and Ramey houses. Ramey was talking to the men in the Sanders truck. The witness stated:
The pump was given to Ramey by Sanders. Young Gentry stated that the former, after obtaining the pump-, put air in the tire. “After he pumped up his tire, he just raised up and there was a shot.” The witness said that appellant and Ramey were about 8 or 10 steps apart, and that Ramey was standing by his car when this happened. Ramey had nothing in his hands when this occurred, and Sheriff Waggoner of Newton County testified that an examination of the premises revealed a tire pump, still hooked onto the tire, and a screw driver and hub cap on the ground. No weapons were found, nor was there any gun in the Ramey automobile. Several witnesses testified that they smelled alcohol on Sanders immediately following the shooting, but no one indicated that he was drunk.
Sanders contended that his life had been threatened by Ramey on several occasions, and Ramey stopped appellant’s truck on Christmas afternoon, inquiring if he had a drink of whiskey. Appellant replied that he did not, and was called a vile name by Ramey, after which the latter borrowed a pump from Sanders for the purpose of inflating a flat tire. Sanders said that during the time Ramey was pumping, he was cursing, and saying, “I’m going to have to kill you.” Appellant asserted that he knew Ramey kept a loaded shotgun on the back seat of his automobile, and he said that when the latter reached for the back door of his car, he (Sanders) shot from his hip as he got out of his truck . Appel lant stated that he believed Barney was endeavoring to get his gun when he fired the shot.
Steve Sanders, 17-year-old son of C. L. Sanders, testified that the children gave their father a gun rack for Christmas, and he placed the rack in the pickup truck on Christmas morning; he also put the rifle in the rack. The boy stated that he loaded the rifle, because he was going to try to shoot a hawk. The witness also said that Barney threatened to kill his father on the Friday before Christmas.
There was certainly substantial evidence to support the verdict. The uncontradicted proof is that the deceased had no weapon in either his hand or his car. In order to obtain his rifle, Sanders reached behind him to a rack in the back of his truck, took a 30-30 rifle from the rack, stepped from the truck, and fired the shot. During the time that it took appellant to obtain the rife and fire the shot, Barney was still standing on the ground— still without a weapon. The jury could easily have found that Sanders was in no danger of receiving bodily harm, and that he was the agressor and opened fire without any legal justification whatsoever. As stated in Brown v. State, 231 Ark. 363, 329 S.W. 2d 521:
"The proof was adequate to justify a conviction of manslaughter, and in fact, might well have justified a conviction for a higher degree of homicide. ’ ’
As to the second contention, the law is clearly established that a violent disposition toward others on the part of a victim of homicide cannot be shown by specific acts of aggression and misconduct. Taylor v. State, 222 Ark. 491, 261 S.W. 2d 401; Bogue v. State, 152 Ark. 378, 238 S.W. 64. Such violent nature is properly shown by proof of the general reputation of the deceased, and, in fact, five witnesses were offered by appellant who testified that Barney had the reputation of being a violent and dangerous person. Several witnesses also stated that Sanders had the general reputation of being a law-abiding citizen.
The court did permit Sanders to testify about specific threats made to him by the victim, and appellant testified that he had been threatened on the day before the shooting; also, that on the Wednesday before the shooting (which occurred on a Monday) Ramey had been by his house, and told appellant that he was going to kill him “on account of my Dad.” He likewise testified about another occasion when Ramey had purportedly cursed and said, “I am going to kill you all * * * and if I can’t get you with this hammer, I’ll use my shotgun. ’ ’
Actually, though the court held that appellant could not introduce any testimony relative to threats or acts of violence against third persons (and we have already said that this holding was correct), quite a bit of this evidence was heard by the jury. For instance, Sanders testified that Ramey had told him that he was going to kill Troy Magnus; that three years prior to the shooting of Ramey, Sanders’ father had to stop Ramey from killing his (Ramey’s) wife; further, that Ramey “told him that he was burning some man out and laying out there waiting for him to kill him * * * he set Yandell’s barn afire and thought he would come out and he was going to shoot him.”
Finding no reversible error, the judgment is affirmed.
Sam Willis testified that he did not see the shooting, but he said that he had observed a shotgun in the back seat of the Ramecar several times prior to the day of the killing.
Also, where a defendant relies upon self-defense, uncommunicated threats toward the defendant are admissible where there is doubt as to who was the aggressor; this evidence is admissible solely for the purpose of shedding light on this question. Decker v. State, 234 Ark. 518, 353 S.W. 2d 168. | [
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George Rose Smith, Justice.
This is a usury case. On November 9, 1962, United-Bilt Homes, Inc., agreed to build and to finance a house for the plaintiffs, Teague and his wife. The basic cash price, after a $10 down payment, was $2,450, but that figure was not set forth m the building contract or in the note or in the mortgage, all executed on November 9. Instead, all three instruments simply recited the Teagues’ obligation to make 90 monthly payments of $43.07 each, or a total of $3,876.30.
On October 5, 1965, the Teagues, after having made several payments at irregular intervals, brought this suit to cancel the debt for usury. United-Bilt denied usury and sought foreclosure of its mortgage. This appeal is from a decree canceling the note and mortgage, for usury.
The Teagues’ indebtedness was initially $2,450. They signed documents ostensibly requiring them to pay more than 10% per annum on that debt. In the loan papers United-Bilt made no effort whatever to explain its finance charges. That omission brings the case within the rule that we adopted more than ten years ago in taking our stand on the matter of truth in lending. We then pointed out that when the lender writes the contract he has the opportunity to put down in black and white an intelligible description, and the exact amount, of every charge that is being added to the principal of the debt. When, as here, the lender gives the borrower no information at all about the deferred charges, the trier of the facts is justified in assuming, until he is convinced by proof to the contrary, that the difference between the principal of the loan and the face amount of the contract represents interest on the debt. Jones v. Jones, 227 Ark. 836, 301 S.W. 2d 737 (1957). We have consistently adhered to the rule laid down in the Jones case, which is an important but completely fair weapon in the legal arsenal available to the courts in the con- ‘ inning fight against usury.
In the case at bar the charges were excessive oil their face. United-Bilt fixed the monthly payments at $43.07. That figure exceeds the maximum legal charge of $38.80 — the amount needed monthly to retire a debt of $2,450 in 90 months at 10% interest. See Lake’s Monthly Installment and Interest Tables (5th Ed., 1959), p. 149. Under the Jones case United-Bilt had the burden of explaining the excessive charges.
At the trial United-Bilt supplied an exact explanation of its monthly charge of $43.07. Dennis Wilson, its chief accountant, testified that United-Bilt’s experience had shown that its closing costs always exceeded 11% of the principal debt. Hence the table which it furnishes to its salesmen was prepared by adding 11% to the principal and then charging 10% interest upon that total.
Lake’s tables confirm Wilson’s testimony. Here the principal was $2,450. Eleven percent of that amount is $269.50, making a total of $2,719.50. According to Lake, p. 149, a loan of $2,719.50, payable in 90 monthly installments at 10 % interest calls for monthly payments of $43.07. That, to the very penny, was the amount specified in this case.
Thus United-Bilt’s task is that of proving legitimate closing costs — costs that may be passed on to the borrowers at 10% interest for the life of the loan — of at least $269.50. United-Bilt now contends that it was entitled to charge the following closing costs to the Teagues, even though they were not told about any of the amounts involved:
Title insurance $ 40.00
Eire and extended coverage (FEC) 144.25 Appraisal 52.50
Credit life insurance premiums 117.27
$354.02
The chancellor correctly allowed the first two items, totaling $184.25, upon proof that TJnited-Bilt had spent that amount for title and FEC insurance. The case turns upon the other two items.
TJnited-Bilt attempts to sustain the appraisal charge by insisting that it was for the Teagues ’ benefit. That just is not true. The inspection and appraisal were not made until April 2, 1963, long after the consummation of the loan and the completion of the house. The Teagues were not even told about the appraisal, which did not benefit them in any way whatever. The appraisal, fee was for United-Bilt’s sole benefit and cannot be passed on to the Teagues. Winston v. Personal Finance Co., 220 Ark. 580, 249 S.W. 2d 315 (1952).
There remains the premium for credit life insurance. In an earlier United-Bilt ease we disallowed that premium because it was not actually paid in advance. United-Bilt Homes v. Knapp, 239 Ark. 940, 396 S.W. 2d 40 (1965). TJnited-Bilt now seeks to distinguish that ease by insisting that here its proof shows that the credit life premium would have been paid eventually, so that it was entitled to take the premium into account as part of the closing costs.
There are two unanswerable objections to that argument. First, even though United-Bilt intended in good faith to pay the credit life premium, its own undisputed proof shows that the premium was not an interest-bear-i/ng charge susceptible of being included in the closing costs. Wilson, United-Bilt’s own accountant, testified that the premium was not paid to the credit life insurance company in advance. Instead, had the Teagues paid their monthly installments as they came due, the monthly credit life premium would have been taken out of each payment, so that United-Bilt would never have been in the position of having advanced any of the premium as a loan to the Teagues. Hence, just as in the Knapp case, United-Bilt is not entitled in the case at hand to charge interest upon a sum of money that was not meant to be lent to the Teagues. Of course the issue of usury is to be determined as of the date of the contract and not by subsequent events. General Contract Corp. v. Duke, 223 Ark. 938, 270 S.W. 2d 918 (1954).
Secondly, United-Bilt was not contractually bound to carry one penny’s worth of credit life insurance. The. only reference to such insurance was contained in the printed building contract, prepared by United-Bilt and to be construed in the borrowers’ favor: “Owner agrees to pay all attorney’s fees, installment loan expenses (including cost of credit life insurance), title and property insurance, and recording costs, incurred and to be incurred in connection with creating and fixing the first lien and mortgage . . . and in financing the time sale hereby contemplated.”
It will be seen that the Teagues agreed to repay the cost of credit life insurance, but there was no requirement whatever that United-Bilt carry such insurance. The matter was discussed during the negotiations for the loan, but the written contract expressly provided that it contained all items and conditions agreed upon by the parties. Hence the Teagues had no legally enforcable right to compel United-Bilt to carry credit life insurance. United-Bilt might therefore have dropped the coverage at any time — a fact which obviously precludes it from now contending that the contemplated premium was an interest-bearing charge subject to inclusion in the closing costs. (As a matter of fact, the coverage that was actually obtained would not have benefited the Teagues if Donald Teague had died at any time within fifteen months before the date of trial. That is so because the policy provided that the insurance would not be payable if the monthly payments to United-Bilt were in arrears by more than 90 days at the death of the insured. The Teagues’ payments were more than 90 days in arrears for fifteen months before the trial; so they had no protection.)
During our discussion of the case the suggestion was made that credit life premiums should be treated in the same way as nnaccrued interest; that is, in a suit to collect an accelerated debt nnaccrued and unpaid credit life premiums should not be considered in the determination of the issue of usury. The analogy is fallacious. Unaccrued legal interest can be disregardeed, as in Mid-State Homes v. Knight, 237 Ark. 802, 376 S.W. 2d 556 (1964), because the contract would not have been usurious if the debtors had made all payments as they came due. But when the interest rate was originally usurious, the lender cannot validate the contract by bringing suit for legal interest only. Brooks v. Burgess, 228 Ark. 150, 306 S.W. 2d 104 (1957).
Similarly, if United-Bilt had been contractually bound to make the credit life premium payments every month, the future unpaid monthly premiums would not have made usurious an agreement that was originally legal. But here the matter of paying the monthly premiums lay entirely within United-Bilt’s uncontrolled discretion. It might have dropped such insurance at any time and still have continued to collect the premiums as a part of the Teagues’ monthly payments. Such a contingency, lying wholly within the lender’s power, opens the door to usury. Sosebee v. Boswell, 242 Ark. 396, 414 S.W. 2d 380 (1967). There would evidently be no ceiling upon the permissible interest rate if lenders were allowed to include in their finance charges items that they were free to pay or not to pay as they later saw fit.
We have not overlooked the fact that the Teagues’ first monthly payment was not due until January 6, 1963, giving them the benefit of a 58-day interval instead of the usual 30-day interval in the computation of interest. Even so, that windfall of $20.50 in interest (Lake, supra) is far short of offsetting the excessive interest charges.
Affirmed.
Brown, J., not participating.
Harris, C.J., and Fogleman, J., dissent. | [
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Lyle Brown, Justice.
Alfred Wallis appeals from a conviction of the felonious theft of 350 bushels of soybeans. He argues (1) that his purported confession should have been suppressed; (2) that the State failed to prove ownership of the stolen property; and (3) that there was no corroboration of the extrajudicial confession to the effect that a crime had been committed.
Mid-South Grain Company’s operation at Harrisburg is completely fenced. Entrance and exit are made through a gate which is locked at night. On Monday morning, January 9, 1967, Charles Burrow, Mid-South’s manager, discovered one of Mid-South’s trucks turned over in a highway ditch a short distance from the gate. It was loaded with approximately 350 bushels of soybeans. The Company’s gate was open and the lock was broken. The truck has been removed from under a seed house at the end of an elevator. Seed could be loaded from the house into the truck by pulling a lever and opening two doors. Beans had been loaded into the seed house on the previous Friday. Mr. Burrow inspected the house and found that “beans in the seed house had tunneled down which indicated beans had been taken from it.” Burrow was not able to state of his own knowledge that the beans found in the truck came from Mid-South’s seed house.
Appellant, a Mid-South employee, became a suspect. When the suspicion developed, Wallis was apparently working out of the State in a new occupation and was not arrested until some two months after the incident. He had returned for a week-end visit when apprehended. He was taken to the sheriff’s office and questioned by Deputy Sheriff Reese and Lieut. Speer of the State Police. Wallis signed a waiver worded as follows:
Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. You have the right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop at any time until you talk with a lawyer.
The statement contained a detailed account of breaking the lock on the gate, the loading of the truck, and the one-car accident when Wallis failed to negotiate a sharp turn. According to Wallis, the beans were to be disposed of through prearranged plans -with a named confederate. The statement further recounted a previous theft from Mid-South and knowledge of other unlawful practices by other employees.
In the in-chambers hearing, Wallis conceded that Officer Speer read the waiver to him before it was signed. Wallis described the procedure relative to the statement. The accused would make a statement and ‘ ‘ Speer would type up something and ask me if that was similar to what I said.” Then the statement, when completed, was read to Wallis by Speer, and Wallis signed it. Wallis’ main challenge to the admissibility of the statement is that he was told his failure to sign would necessitate his being returned to jail to await a hearing two or three days later. He asserted that the delay would have jeopardized his new job. Bond could be made immediately, so he asserted he was told, if he would sign the confession. Additionally, he complained that he was told he could have a lawyer but did not need one.
The two investigating officers testified for the State in the Denno hearing. Both officers denied Wallis’ version of wrongful acts on their part. Officer Reese testified that the question concerning a bond came up after the statement was completed. Wallis’ wife and her father, who had learned of Wallis’ whereabouts, came to the courthouse and signed his bond before he was taken back to jail. There was some dispute about when the amount of the bond was fixed and by whom. Wallis contended it was fixed by the deputy sheriff rather than a magistrate. It developed that the amount of the bond was in fact approved by Judge Mosby, but again the time element is not clear. It is Wallis ’ theory that the fixing of the amount of the bond by the officers lends credence to his assertion that the promise of an immediate release was the prerequisite for his signature to the confession.
Appellant insists that the waiver, which we have copied verbatim, did not advise him of his right to an attorney prior to any questioning. He was told he had a right to talk to a lawyer before any questions were asked; that a lawyer could be present during the questioning; and he was told he had a right to the advice and presence of a lawyer “even if you cannot afford to hire one.” There is this sentence in the waiver which could have been better phrased: “We have no way of giving you a lawyer, hut one will be appointed for you, if you wish, if and when you go to court.” Yet when that sentence is harmonized with the full contents of the waiver, we find no problem. The officers were telling the accused that they had no authority to appoint a lawyer for him, which was a correct statement; at the same time they were telling him that if he desired a lawyer before questioning, then he would be taken before a magistrate who would appoint counsel if he was unable to afford employment. Any other interpretation of the quoted sentence would render the remainder of the waiver meaningless.
After a careful review of the testimony given in the Denno hearing, it is not at all difficult to hold that the trial court was correct in denying appellant’s motion to suppress.
Appellant’s second point for reversal is that the State failed to prove ownership of the soybeans. We cannot agree. It is not disputed that the soybeans stored in the seed house belonged to Mid-South. Its truck was left parked for the week-end under the seed house. That house had been loaded with beans on Friday, the last day of the weekly operation. Inspection of the seed house revealed that beans had been tunneled down. The truck, loaded with soybeans, was found just outside the Company’s fence. Entrance and exit had been gained by the breaking of a lock. Positive testimony that the load of beans came from the seed house was not available. However, substantial circumstantial evidence of the ownership of property allegedly stolen is sufficient. Rynes v. State, 99 Ark. 121, 137 S.W. 800 (1911). Appellant finally relies for reversal on Ark. Stat. Ann. § 43-2115 (Repl. 1964). It is there provided that an extrajudicial confession will not warrant a conviction unless there is other proof that an offense was committed. We have many times held that such a confession will sustain a conviction if there is proof that the offense was committed by someone. Hargett v. State, 235 Ark. 189, 357 S.W. 2d 533 (1962). From our analysis of the circumstances under appellant’s sec ond point, it is evident that a crime bad in fact been committed.
Affirmed.
Fogleman, J., not participating. | [
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Paul Ward, Associate Justice.
In February, 1958, W. C. Leatherwood and B. C. Castleberry (appellees) filed a suit against appellants to quiet title to 342 acres of timber land located in Section 16, Township 13 South, Bange 3 West, in Desha County. It was alleged that Leatherwood had acquired title to said lands by adverse possession for more than 7 years. Appellants lay claim to the land by inheritance from one Mamie Kone Fee, who was the fee owner of said land at the time of her death in 1931. Two of the appellants are the grandchildren of said Mamie Kone Fee and the other appellant is their mother, who was also the wife of the son of the said Mrs. Fee.
For clarity and convenient reference we divide the subject lands into three separate groups as set out below:
GBOUP I. The South One-half of the Northeast Quarter, 80 acres; all of the Southeast Quarter of the Northwest Quarter east of the railway track and highway No. 65, approximately 30 acres.
GBOUP II. The Southwest Quarter of the Northwest Quarter, 40 acres; all of the Northeast Quarter of the Northwest Quarter lying west of the said railway and road, 22 acres; all of the Southeast Quarter of the Northwest Quarter lying west of said railway and road, approximately 10 acres.
GBOUP III. The North half of the Southeast Quarter, 80 acres; Southwest Quarter of the Southeast Quarter, 40 acres; Northeast Quarter of the Southwest Quarter, 40 acres.
At the conclusion of the trial the court confirmed the title in appellees to all of the land in Group III. Ap pellants have not appealed from this portion of the decree, and so these lands are no longer in litigation.
The title to the lands in Group II was quieted, subject to certain restrictions to be noted later, in Jane Day Fee (one of the appellants) to an undivided one-half interest, and in appellees to an undivided one-half interest. Appellants appealed from that portion of the decree giving only a one-half interest to Jane Day Fee, but appellees have not appealed from that portion of the decree giving a one-half interest to Jane Day Fee. We will later discuss appellants’ appeal in this connection.
The trial court quieted title in appellees to all of the lands in Group I. The principal arguments of appellants are directed to a reversal of this portion of the chancellor’s decree. To better understand the issues involved in this connection, it is necessary to set forth a summary of the factual background and portions of the testimony.
As heretofore stated the title to this 342 acres of timber land was held in fee by one Mamie Kone Fee, who died in 1931. Beginning about the time of her death and for several years thereafter all of the lands forfeited for taxes and were never redeemed. The forfeiture of the lands in Group III was by a valid description, but the remainder of the lands were described by an invalid description, being described only as a part of the North One-half of the Section. Mrs. Mamie Kone Fee, who died intestate, left surviving her one son, Edward S. Fee, Sr., who died intestate in 1942. Edward S. Fee, Sr., left surviving him his widow and a son and daughter, named Edward Fee, Jr., and Jane Day Fee, respectively. It is important to note that Jane Day Fee was born in 1937.
In 1931 Alex White moved onto the land and built a small house on the lands in Group I. It appears from the evidence that this house was perhaps surrounded by three or four acres of cleared land. In addition to this, White cleared and cultivated approximately thirty acres of land, but no definite description of this thirty acres is contained in the record. In addition to the above, it appears that White also cleared and pastured an additional parcel of land consisting of approximately eleven acres, to which no definite description is in the record. Alex White was joined in this occupancy by a woman named Ella Williams. They occupied the lands together until 1945 or 1946 when White died. In the meantime a third party had bought the tax title to the forfeited lands and this party, by means of certain negotiations with Ella Williams, succeeded to her rights in the occupancy of the lands. Appellee, Leatherwood, derives his title through this third party. (It is noted here that Castleberry became a party to the suit and is now one of the appellees by virtue of the fact that he has a contract to buy the lands from Leatherwood.)
It is because of this adverse occupancy by Alex White and his privies for a period of 7 years (beginning in 1931) that Leatherwood now claims title to the lands in question. In addition to the occupancy of the lands by Alex White and Ella Williams, appellees and their privies entered upon the lands more than seven years before filing suit and have continuously occupied and improved all of it up until this time. This fact is not seriously controverted by appellants.
The above factual situation poses the following problems: (a) If the nature of the occupancy by Alex White and Ella Williams for the period from 1931 to 1938 or ’39 was sufficient to vest title in them to all the lands in Group I then the Chancellor was correct in so holding. This would be true because Jane Day Fee would have no right which she could assert, since her father would have lost the land, (b) If, however, the adverse occupancy by White and Williams was not sufficient to extend to all of the lands but only to the lands to which they actually occupied (the home, the thirty acres and the eleven acres) then appellees would have to rely on ‘ ‘ the latter period of adverse occupancy.” In this event, however, Jane Day Fee would still have an existing interest in the lands because she had not reached the age of twenty-one when this suit was filed, and the statute had not run against her. See: Jackson v. Cole, 146 Ark. 565, 226 S. W. 513.
(a) It is our conclusion that the Chancellor erred in holding that the adverse occupancy of White and Williams extended to all of the lands in Group I. It is conceded by appellees that White and Williams were not occupying the land under color of title and the record reflects that the lands in Group I were not enclosed by a fence. Except for the three parcels of land mentioned above, there is no showing of actual or pedal possession of the lands in Group I, by White and Williams. It was shown that White cut some timber and hauled if off in a wagon or cart, but it was not shown to have been continuous for seven years or that it was co-extensive with the land. Under these circumstances, there being no color of title, the occupancy of the said parcels of land did not extend to the rest of the lands in Groups I and II. The law in this respect is well settled.
In the case of Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390, 11 L. R. A. (N. S.) 772 the court said: “Color of title is not necessary to give title by adverse possession, but it is necessary to extend the title acquired beyond the limits of the actual possession.” (Emphasis supplied.) In the case of Dickson v. Sentell, 83 Ark. 385, 104 S. W. 148, the court was dealing with adverse possession based on an indefinite description, and the court said: ‘ ‘ This description is so vague that it does not constitute color of title, so that possession of part will be considered possession of the whole.” Likewise in the case of Bailey, Trustee v. Martin, 218 Ark. 513, 237 S. W. 2d 16, the court reaffirmed the rule in the Bradbury case supra. In Cooper v. Cook, 220 Ark. 344, 247 S. W. 2d 957, the court announced the rule in these words: “It is well settled by our decisions that while color of title is not necessary to give title by adverse possession, it is required to extend an actual possession of a part of a tract of land constructively over the rest of it. Thus the adverse possession of appellees in the ease at bar is limited to the land they actually occupied.”
(b) Appellants do not appear to seriously contend that the adverse occupancy of appellees and their predecessors for a period of seven years immediately before this suit was filed was not sufficient to give them title to all of the lands in Groups I and II including the three parcels actually occupied by White and Williams but, if so, we find from the record that such occupancy was sufficient. Nor can appellees successfully contend that such occupancy barred the rights of Jane Day Fee, who was not of age when the suit was filed. See: Jackson v. Cole, supra. It is contended however by appellants that since Jane Day Fee could successfully defend, her right to do so extends to her brother and mother. We cannot agree with this contention on the part of appellants since the lands in question were not a homestead, and since they were co-tenants. See: Jackson v. Cole, supra and 43 C.J.S. § 32 page 100. Furthermore this is not a suit to redeem.
From what we have said above we have reached the conclusions hereinafter set out. (1) Appellees’ title should be quieted to the three parcels of land actually occupied by White and Williams. It will be appropriate however for the trial court, on remand, to see that these parcels are located and definitely described. (2) As to the remaining lands in Group I, Jane Day Fee should have her title confirmed to an undivided one-half interest, and likewise an undivided one-half interest in the same lands should be quieted in appellees. (3) For the reasons heretofore set out the trial court was correct in the disposition it made of the lands in Group II, and in refusing to make any award to the mother and brother of Jane Day Fee.
We mentioned heretofore that the trial court gave Jane Day Fee an undivided one-half interest in the lands in Group II with certain reservations. These reservations by the court were that Jane Day Fee took title ‘ ‘ subject to the betterment and tax payments of the plaintiff.” The court itself reserved this issue for future consideration. Also, in view of the charge which we have made in that portion of the decree dealing with the lands in Group I, the trial court should further consider the question of “betterment and tax payments” pertaining to tbe lands in that group.
Tbe decree of tbe trial court is therefore affirmed in the respects above indicated, and it is reversed in other respects as heretofore set out, and the cause is remanded for further proceedings relative to the matters heretofore mentioned.
George Rose Smith, J., not participating. | [
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George Rose Smith, J.
This suit for personal injuries and property damages arose from a collision between two vehicles. One was a truck owned by the plaintiff McEntire and being driven by his fourteen-year-old grandson, the plaintiff Clifton Brown, Jr., who was traveling upon a mission of his own. The second vehicle was a tractor-trailer owned or leased by the defendant Keaton and being driven by tbe defendant Welch. This vehicle was also occupied by a relief driver, the defendant Boseberry, who was asleep at the time of the collision.
McEntire and his grandson alleged in their complaint that Welch and Boseberry were employees of Keaton and that the accident was due to Welch’s negligence in crossing the center line of the highway. By answer and cross complaint against the plaintiffs the defendants asserted that Welch was an independent contractor and that it was yonng Brown who was on the wrong side of the road. In response to special interrogatories the jury attributed the total negligence to Welch and Brown, 50 per cent each, and found that Welch was an independent contractor. The only recoveries were a $500 verdict against Welch for McEntire’s property damage, a $3,142.16 verdict against Brown for Keaton’s property damage, and a $7,500 verdict against Brown for Boseberry’s personal injuries. The plaintiffs have appealed, and Welch has cross appealed.
The appellants argue two points for reversal. First, it is contended that the court erred in excluding paragraph 8 of a written contract by which Keaton, who owned the trailer, had leased the tractor from Welch. To show the relation between Keaton and Welch their attorney offered in evidence, and the court admitted, a copy of the lease contract from which paragraph 8 had been deleted. This contract, which is perfectly intelligible without the omitted paragraph, sets out the terms upon which Keaton leased Welch’s tractor for a year.
Thereafter counsel for the plaintiffs offered the omitted paragraph, which provides in part that liability insurance “will be carried by Keaton at the expense of Welch, at the rate of 5%, to be deducted from each weekly check of Lessor.” It is now insisted that this provision was admissible to show that Keaton exercised a measure of control over Welch and so might have been found to be his employer.
We agree that the contractual provision for liability insurance, though not admissible for all purposes, might have been considered by the jury as bearing upon Welch’s status as an employee or independent contractor. Delamar v. Ward, 184 Ark. 82, 41 S. W. 2d 760; Pollock Stores Co. v. Chatwell, 192 Ark. 83, 90 8. W. 2d 213. But both those cases point out that the jury should be instructed to consider the insurance arrangement only with respect to the narrow issue upon which it is admissible. It was therefore incumbent upon the plaintiffs, in offering proof not admissible for all purposes, to request the court to admit it for the limited purpose only. No such request was made, however, and it is settled that in the absence of such a request the exclusion of the evidence is not reversible error. Kansas City So. Ry. Co. v. Leslie, 112 Ark. 305, 167 S. W. 83, Ann. Cas. 1915B, 834; Thacker v. Hicks, 215 Ark. 898, 224 S. W. 2d 1.
Secondly, the jury’s original answers to the special interrogatories were incomplete and conflicting. It is contended by the appellants that the trial judge erred in his successful efforts to elicit from the jury a set of harmonious answers, but we have concluded that no error was committed.
The first three interrogatories and the jury’s original answers were, in substance, as follows: 1. Do you find that Welch was negligent? “No.” 2. Do you find that Brown was negligent? “No.” 3. If your answers to 1 and 2 are “Yes,” then using 100% to represent the total negligence state what per cent you attribute to the following persons: Welch -; Brown -. The jury inserted “50%” in each of these blanks. Interrogatories 4 and 5 contained blank spaces for the insertion of the monetary damage suffered by each of the five litigants, but the jury did not originally fill in any of those blanks.
When Judge Wolfe examined the verdicts he first asked the jury how it was that in response to interrogatories 1 and 2 they found no negligence, but in the third interrogatory they divided the negligence 50-50. The jurors replied that by their answers to 1 and 2 they meant that neither Welch nor Brown was 100% negligent. The court explained that interrogatories 1 and 2 were merely intended to find out whether Welch and Brown were guilty of any negligence. With this explanation in mind the jurors returned to the jury room and corrected their answers to 1 and 2 to read “Yes.” Up to this point the appellants make no complaint about the trial court’s action, which was manifestly correct. The jury undoubtedly intended all along to find that Welch and Brown were both negligent, in equal degree.
The court next discussed with the jury the matter of fixing the pecuniary damages suffered by the various parties. In the course of this discussion the foreman of the jury remarked: “We are jiist assuming that by putting that 50-50 nobody would get anything.” In view of this statement plaintiffs ’ counsel asked the court to inquire if the jury intended that no one should recover anything, but the court refused to put this question. Instead, the judge explained to the jury that the apportionment of fault and the fixing of damages are separate and independent matters. He pointed out that all the parties had stipulated that McEntire’s property damage was $500 and that Keaton’s was $3,142.16; there was at least an intimation that the jurors were bound by the stipulations. After this discussion the jury again retired and fixed the property damages at the stipulated sums and Boseberry’s personal injuries at $7,500.
The appellants argue that Judge Wolfe made two errors in his efforts to assist the jury in arriving at the various litigants’ recoverable damages. It is contended, first, that the court’s intimation that the jury was bound by the stipulations amounted to a comment on the evidence, and, second, that the court should have asked the jurors if they really intended for no one to recover anything at all.
We think the court was right in both instances. On the first point the jurors were bound by the stipulations. When the evidence is wholly undisputed the court may and should take that issue from the jury. Pacific Mut. Life Ins. Co. v. Walker, 67 Ark. 147, 53 S. W. 675; El Dorado & Bastrop R. Co. v. Whatley, 88 Ark. 20, 114 S. W. 234, 129 A. S. R. 93. A stipulation is the equivalent of undisputed proof; it leaves nothing for the jury to decide. Hence there was no need for the court even to submit to the jury the question of McEntire’s and Keaton’s property damages. The court might properly have submitted only the apportionment of fault, since that was the single missing factor that the court needed for the entry of a judgment in accordance with the stipulations.
On the second point the court’s refusal to ask the jurors whether they meant to allow no one to recover was based upon a correct understanding of the comparative negligence statute. Ark. Stats. 1947, §§ 27-1730.1 and 27-1730.2. It is true that in returning a general verdict the jury may make findings that are not consistent or in harmony with either party’s theory of the case. See, for example, Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49. But such results can hardly come about when the issues of comparative negligence are submitted on special interrogatories. In the present case McEntire’s damages, for instance, were conceded to be $500, and the jury found that his adversary Welch was negligent, while McEntire was not. Upon these findings there is simply no way to prevent McEntire from recovering from Welch, who was the joint tortfeasor that McEntire elected to sue. Thus the appellants’ second point really narrows down to an insistence that the trial court should have permitted the return of a general verdict, but we find no abuse of discretion in the court’s submission of the case on special interrogatories. Robertson v. Universal C. I. T. Credit Corp., 224 Ark. 293, 272 S. W. 2d 825; St. Louis S. W. Ry. Co. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282.
By cross appeal Welch complains of the court’s action in directing a verdict in favor of McEntire upon Welch’s cross complaint. It does not appear from the abstracts of the record, nor even from the record itself, that any sufficient objection to the peremptory instruction was made prior to the filing of Welch’s motion for a new trial. It was then too late for the objection to be made for the first time. De Queen & Eastern R. Co. v. Pigue, 135 Ark. 499, 205 S. W. 888.
Affirmed. | [
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Carleton Harris, Chief Justice.
This is an action wherein petitioner, Wanda A. Naylor, seeks a Writ of Mandamus, directed to the Grant County Chancery Court.
On January 2,1958, G. C. Naylor filed suit for divorce in the Grant Chancery Court against Wanda A. Naylor, on grounds of three years continuous separation. Mrs. Naylor, a resident of Baltimore, Maryland, employed Mr. Sid Reid, an attorney of Sheridan, to represent her, and Mr. Reid filed an answer and moved for an order allowing attorney’s fees and suit money. In compliance with this motion, the court entered its order allowing a total of $50. Mr. Reid subsequently died, and Mrs. Naylor employed her present attorneys to represent her. Thereafter, the discovery deposition of Naylor was taken, and Mrs. Naylor filed a cross-complaint, seeking a decree of separate maintenance; also, she sought temporary maintenance, suit money, and attorneys’ fees pendente lite. The Court, on May 8, 1959, entered an order allowing $100 as suit money and $100 as attorneys’ fees. Depositions of Mrs. Naylor and four others were taken in Baltimore.
On September 17, 1959, Naylor entered a voluntary non-suit, and on the same day, filed a new complaint for divorce, based upon the same grounds, but designating a different period of time in alleging the three years separation. On October 9th, attorneys for the two parties (following a letter written by petitioner’s attorney in which he advised Naylor’s counsel that he would be present in court on that date) appeared before Judge Goza, and according to the petition for writ filed by petitioner,
“requested the court to hear the merits of the cross-complaint, that being the only undisposed matter remaining in the original suit. In support thereof, Mrs. Naylor offered in evidence the deposition in chief of herself, her daughter, Mrs. Carolyn Alice Hoare, and three others. The court orally refused to allow the introduction of any evidence and declined to hear the merits of the cross-complaint. * * *
‘ ‘ That the court has refused to enter a formal order in accordance with its rulings allowing the plaintiff’s nonsuit or its refusal to hear the cross-complaint, or to set a date certain for a hearing of the merits thereon.
“Asa result of the action of the court, Mrs. Naylor has been unable to obtain a hearing of the merits of the cross-complaint, to obtain a specific setting for such a hearing, or to obtain an order of the court setting forth its rulings from which, an appeal conld be taken, and has, therefore, been deprived of her legal and equitable rights.”
The court apparently did enter an order requiring Mr. Naylor to pay into the registry of the court $35 per week temporary maintenance, though this order does not appear in the transcript .
In her brief, petitioner states the issues to be:
“ (a) whether or not plaintiff could effectively dismiss his complaint and thereby deprive the court of jurisdiction of defendant’s cross-complaint and, at the same time, deprive cross-complainant of a hearing in that case, and (b) whether or not the plaintiff could effectively dismiss his complaint in the original cause of action, and file an identical cause of action, before the cross-complaint had been disposed of and before the court had acted upon the plaintiff’s attempt to dismiss.”
The record does not reflect that respondent considered the nonsuit taken in the first case (No. 1533), to be applicable to the cross-complaint, and in fact, as already pointed out, an order for temporary support was apparently entered in this ease, and such order was made after Naylor’s taking of the non-suit. As to point (b), we are not here concerned with this question in the proceeding before us. The sole question is whether mandamus will lie, and the prayer of the petition is that this Court issue a writ of mandamus directing the Chancellor “to execute and cause to be filed orders in conformity with his oral rulings ’ ’ made on October 9th.
As stated in Corpus Juris Secundum, Yol. 55, § 114, p. 183:
“The general rules governing mandamus apply in actions for divorce. Mandamus may lie to compel the court in divorce proceedings to hear and decide the cause and enter a decree unless there is an adequate remedy by appeal; * *
Also, in § 53, p. 88:
‘ ‘ Since * * * the purpose of a writ of mandamus is not to establish a legal right but to enforce one which has already been established, it is essential to the issuance of the writ that the legal right of plaintiff or the relator to the performance of the particular act of which performance is sought to be compelled must be clear, specific, and complete, or, as otherwise stated, plaintiff or the relator must have a clear and certain legal right to the relief or remedy sought by the writ; and, according to some decisions, the right to the writ must be clear, undoubted and unequivocal, so as not to admit of any reasonable controversy.”
See also State v. Board of Directors, School District of Ashdown, 122 Ark. 337, 183 S. W. 747. The record before us is rather incomplete, i. e., many pertinent questions remain unanswered. For instance, the petition states that certain oral rulings were rendered; if these rulings were recorded by the court reporter, then, of course, there is a record, and petitioner is afforded the remedy of appeal. On the other hand, if the rulings were not recorded, a writ from this Court directing the Chancellor to reduce his findings and orders to writing, would be improper, since the then Chancellor recently passed away, and the present occupant of this judicial office would have no way of knowing the nature of the rulings rendered by his predecessor. The petition of Mrs. Naylor further states that her attorneys prepared precedents, embodying their interpretation of the court’s rulings on that date, and forwarded same to the court for its approval; though petitioner states that copies of these proposed orders are attached to the petition, a search of the transcript fails to reveal these copies. Be that as it may, we have no right to direct the Chancellor to sign a particular precedent unless it be clearly established that such precedent correctly reflects that court’s rulings. Certainly, there is no “clear, undoubted, and unequivocal” right to the writ shown by this record.
Actually, from remarks of counsel during oral argument, it appears that petitioner is really complaining that she is unable to obtain a trial. While it is true that the cause has been pending for some time, there is nothing in the petition or accompanying exhibits which suggests that petitioner has sought to have the ease set for hearing on its merits, other than the oral request which was made on October 9th. The proceedings on that date were not at the direction of the court; i.e., the matter was not set for hearing, and Naylor’s counsel was only present because of the notice from petitioner’s attorney, advising that the latter would seek some sort of relief at that time. Courts, of course, and properly so, set their dockets and arrange dates for contested matters that will not conflict with other court business.
As was stated in the citation from Corpus Juris Secundum, mandamus will lie to compel the court to hear, and decide the cause in divorce proceedings, but there is nothing contained in the record before us which establishes that the court has arbitrarily refused to hear the case. Of course, Mrs. Naylor is entitled to a trial, and we are confident that if counsel for petitioner will request the Grant Chancery Court to set this cause down for hearing on its merits, on a day certain, the request will be complied with, and the litigation can be disposed of promptly and expeditiously.
Writ denied.
The petition indicates that Naylor had, at least part of the time, paid this amount voluntarily. | [
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Sam Robinson, Associate Justice.
On the 27th day -of September, 1955, a car occupied by Richard P. Toll, Sr. collided with a large truck pulling a trailer, driven by W. T. Jackson. Mr. Toll received injuries from which he died. The administratrix of his estate sued W. T. Jackson and the Phillips Cooperative Gin Company, alleging that the collision was due to the negligence of Jackson and that he was the agent, servant and employee of the Gin Company at the time of the collision. There was a judgment for the administratrix. Jackson did not appeal. The Gin Company did appeal and the judgment was reversed because of the giving of an erroneous instruction. But this Court held that the evidence was sufficient to sustain the verdict. Phillips Cooperative Gin Company v. Toll, 228 Ark. 891, 311 S. W. 2d 171.
"When the ease was tried anew, the only issue submitted to the jury was whether at the time of the col lisioH W. T. Jackson, the driver of the truck which collided with the car occupied by Mr. Toll, was the agent of the appellant Gin Company. The jury found by its verdict that Jackson was an agent of the appellant. As above mentioned, in the first case this Court held that the evidence was sufficient to take the case to the jury on the question of the sufficiency of the evidence to establish the relationship of master and servant between the Gin Company and W. T. Jackson. There is no substantial variance between the evidence in the case at bar and the evidence in the first case on the point of agency. There is a slight difference in the evidence regarding the registration of the trailer attached to the truck involved in the collision. In the first case it was shown that the trailer was registered in the name of C. T. Jackson, who is the president of the Gin Company and father of W. T. Jackson. In the case at bar no evidence was introduced showing in whose name the trailer was registered, but C. T. Jackson did testify that at one time he owned the trailer. We do not think this slight deviation is material. Moreover, additional evidence of agency was introduced.
Kay Matthews, a witness for appellee, testified that he is an attorney and acting chairman of the Arkansas Commerce Commission; that the Commission has to do with matters relating to transportation by common carriers, participating carriers and other carriers; that carriers of cotton seed are not required to obtain certificates of convenience and necessity, but they are required under the law to file securities in the form of a policy of public liability insurance; that he had searched the records of the Arkansas Commerce Commission back to 1950 and there was no record whatever of W. T. Jackson having filed anything. Matthews further testified that a company that hauls its own products is not required to file anything with the Commission.
It is contended by the Gin Company, and Jackson also testified, that he had been hauling as an independent contractor for the Gin Company over a period of several years. If this was true, Jackson had failed to comply with the requirement that he deposit evidence of liability insurance. On the other hand, if Jackson was merely acting as agent for the Gin Company, there was no requirement that anything be filed with the Commerce Commission. In these circumstances the fact that nothing had been filed with the Commission ivas a fact from which a jury could draw the inference that the truck was being operated by the Gin Company. The jury had a right to consider this fact for whatever it was worth. They could draw such an inference from the proven facts, if they so interpreted the facts. There is no merit to appellant’s contention that the question of insurance was injected into the case in violation of the rule discussed in Derrick v. Rock, 218 Ark. 339, 236 S. W. 2d 726.
On cross-examination W. T. Jackson was asked if a short time after the collision occurred he did not state to Officer Cone that he was on his way back to the Phillips Gin Company at Wycamp. The witness replied that he did not remember. Appellee put Officer Cone on the stand and asked him if Jackson had not said that he had been to the Southern Oil Mill to haul a load of seed up there for Phillips Cooperative. Appellant objected and the objection was sustained. Cone gave additional testimony, but no further objection was made to it.
Appellant complains of certain instructions given by the court. We have examined all of the instructions carefully, but find no error.
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