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Paul Ward, Associate Justice.
One of the principal questions involved on this appeal is whether the trial court erred in refusing to allow appellants (defendants below) to join a third party defendant. Correlative to that question is the trial court’s refusal to grant a continuance at the request of appellants.
A summary statement of the pleadings and proceedings involved in the litigation will be sufficient for an understanding of the issues hereafter discussed.
On May 22, 1958, appellees, W. B. Smith Hatchery, Inc., filed a complaint against Wayne Wyatt, d/b/a Wayne Wyatt Co., to collect the sum of $4,879.61 for approximately 25,000 chicks sold to Wyatt at divers times. (Later Wyatt’s wife was made a party defendant and hereafter we refer to them as appellants). On June 10, 1958, appellants (by an attorney not now of record) entered a general denial. No further steps were taken until November 17, 1958, when appellants filed an Answer and a Cross-Complaint alleging that they had been damaged in the amount of $5,412.37 because of defective chicks sold to them by appellees or because of defective feed sold to them by the Quaker Oats Company. Among other things, the Answer contained this statement: ‘ ‘ That it is true that the plaintiff by its invoices hereinafter set forth sold and delivered to the defendant the following listed checks: ” Following the above was listed the same number of chicks as listed in the complaint. Also in their Answer was a statement to the effect that had the chicks been good quality, and had they not been fed poison feed, the profit on their operation would have been in excess of $10,000, and also that the defendants have sued Quaker Oats Company for damages for poison feed, and that their loss was due either to defective chicks furnished by plaintiff or defective feed furnished by the Quaker Oats Company or both and that the Quaker Oats Company should be made a party to this suit or this suit should be consolidated with the suit now pending in the Federal Court in Little Rock. According’ to the record it was the contention of appellee, concurred in by the trial judge that appellants abandoned their request to have the Quaker Oats Company made a party to the litigation. The present attorney for appellants was of the opinion that no such withdrawal was made.
On April 20, 1959, on Motion by appellants’ attorney (who had replaced the former attorney) a continuance was secured until the fall term of court. On October 19, 1959, when the court met in preparation for the opening of the fall term of court to be held on October 27, 1959, the present attorney for appellants (the third attorney to appear for appellants in the case) filed an Amended Answer and Cross-Complaint in which ap pellants again requested to have the Quaker Oats Company made a party defendant. After considerable discussion by the attorneys before the trial judge, the court stated that it would allow appellants to bring the Quaker Oats Company into court as a defendant provided they could do so by October 27, 1959, but that no continuance would be granted at that time if they were not successful in doing so. When the case was called for trial appellants filed a Motion for a Continuance on the ground that they had been unable to get the Quaker Oats Company in court since said company was allowed twenty days after service of summons in which to file an answer.
It may be admitted that if appellants had a right to have Quaker Oats Company made a party defendant, then the court was in error in refusing to grant a continuance. It is our opinion, however, based on the record before us, that appellants had no such right.
Ark. Stats. § 27-814, in all material parts, reads as follows: “. . . when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.” In construing the above statute in the case of Smith v. Moore, 49 Ark. 100, 4 S. W. 282, the court said: “The obvious intention of the statute is to require all persons to be made parties to an action who will be necessarily and materially affected by its result, . . .” The court then held that a joinder was necessary under the facts of that case. However, in the case of Thompson v. Grace, 91 Ark. 52, 120 S. W. 397, the court found that a joinder was not necessary because “Appellee was in no wise concerned with any grievance that appellant claimed to have against Jacoway.” Paraphrasing the above quoted language, we likewise find from the record here that appellee was in no wise concerned with any grievance Wyatt had with the Quaker Oats Company. The record reflects that the Quaker Oats Company had sued appellants and others in the Federal Court for feed furnished but Wyatt’s own testimony shows that that suit was completely divorced from the one before this court now. The court asked Wyatt this question: “There is a suit in Federal District Court involving an account that Quaker Oats Company says you owe them for this same feed that was used to feed the chicks for which Smith Hatchery is suing you now?” Answer, “No Sir, the feed they sued me on don’t have nothing to do with the feed that went into these particular chicks; it is a different suit altogether. ’ ’ From the foregoing we are unable to see why the Quaker Oats Company was a necessary party to the present litigation.
Another point raised by appellants is that the court erred in refusing to allow them to show their losses. This point is not stressed in argument, no authorities are cited, and no erroneous ruling by the court is pointed out to us. On the other hand, the record reflects that Wyatt testified at great length in support of his claim, but his testimony reveals that he was referring to a large flock of defective chicks, some of which were furnished by appellee and some furnished by someone else. There was no error on the part of the court in refusing to admit testimony of this kind.
Finally it is contended by appellants that the court erred in not allowing their attorney to make the opening and closing argument to the jury, but we are unable to agree with this contention. The rule that this court has many times recognized is well stated in 53 Am. Jur., p. 71, § 69, as follows: “The true rule, however, except as modified by statute, ... is that the party holding the affirmative of the issues joined in the pleadings and who would be defeated if no evidence were given on either side has the right to open and close the evidence and the argument, . . .” Ark. Stats. § 27-1727, subsection “Sixth” reads: “In the argument the party having the burden of proof shall have the opening and conclusion; . . .” As heretofore stated the appellants first entered a general denial. Later they admitted that they got the number of chicks which appellees claim to have sold them but they did not admit the price agreed on. The record also shows that William B. Smith, Jr., a member of appellee corporation, was called to the stand as the first witness and testified at length without objection upon the part of the appellants. The only logical conclusion to be drawn from this is that appellants themselves considered appellee was charged with the burden of proof, and we think rightly so.
In accordance with what we have heretofore said, the judgment of the trial court should be, and it is hereby, affirmed.
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Paul Ward, Associate Justice.
Howard J. Vardaman (appellee), the holder of a policy issued by the Continental Casualty Company (appellant), filed a suit against the Company to collect accrued monthly payments due under the terms of the policy for alleged total disability. After the complaint had been twice amended, appellant confessed judgment for the amount then prayed. Thereupon the trial court rendered judgment in favor of appellee for the amount confessed. The trial court also, after hearing testimony, rendered judgment for the statutory penalty and attorney’s fee.
Appellant here urges a reversal on the ground that the court erred in allowing the penalty and attorney’s fee, and also on the ground, in the alternative, that the attorney’s fee is excessive.
The peculiar facts of this case call for a careful study of Arkansas Statutes, Section 66-514, together with the many interpretations of said statute by this court. The situation presents a close and interesting question as to whether the trial court was justified in awarding the penalty and attorney’s fee. The facts giving rise to the question are not in dispute, but it is necessary to a clear understanding of the issues to set them out in detail.
The insurance policy, which had been in effect for 18 years, provided for an indemnity of $100 per month as per its terms. If by reason of an accident, appellee was continuously disabled and prevented from performing all duties pertaining to his occupation (a locomotive engineer) appellant agreed to pay the monthly indemnity for a period not to exceed 12 consecutive months. In addition, the policy provided that after the first 12 months of total disability the Company would continue the payment of the monthly indemnity so long as Vardaman should live and be wholly and continuously disabled and prevented from engaging in each and every occupation or employment for wage or profit. The policy further provided that no indemnity would be paid for any period of disability during which Vardaman was not under the regular care and attendance of a qualified physician or surgeon.
Vardaman was seriously injured in an automobile wreck on March 8, 1958, following which the Company paid him the monthly indemnity at the rate of $100 per month through May 8, 1959. On Tune 28, 1959, the Company informed Vardaman by letter that in its opinion he had ceased to be totally disabled and that it was therefor terminating the payments and asked that the policy be returned. In this letter the Company enclosed a check for $116.66 which was in payment for one month and 5 days.
At all times since the accident Vardaman had been in the Missouri Pacific Hospital or under the continuous care of physicians who had determined that he could not return to his occupation as an engineer and that he could not engage in any occupation where manual labor was involved.
After appellee had received information from the Company that no further payments would be made he secured counsel and suit was filed on July 2, 1959 for accrued monthly payments of $116.66, and also sued for the present value of the policy based upon his life expectancy — determined to be 27 years. The policy was attached to and made a part of the complaint. The issue here presented (allowing of penalty and attorney’s fee) was brought to focus by the manner in which the litigation developed from this point.
On July 24,1959 appellant filed an Answer in which it admitted issuing the policy, but denied that since May 8, 1959, appellee had been disabled to such extent as to entitle him to the payment of benefits. On December 20, 1959, at a pre-trial conference, appellee amended his complaint to eliminate that part relating to anticipated damages. This left only the prayer for monthly payments of $116.66 from May 8, 1959 to date of judgment. The trial was then set for March 3, 1960. On February 26, 1960, appellee again amended his complaint to ask for monthly payments of $100 (instead of $116.66). In each instance appellee asked for the penalty and attorney’s fee. On the last mentioned date appellant amended its Answer stating that it had paid appellee $100 per month from March 8, 1958 to May 8, 1959; that it concluded appellee was no longer disabled so as to be entitled to further payments; it offered to confess judgment for $100 per month from May 8,1959 to date of judgment, exclusive of penalty and attorney’s fee. A few days later appellant offered, in addition to the above, to confess judgment for accrued interest on the said monthly payments.
A hearing was had before the trial judge at which the following transpired. It was stipulated that, assuming appellee lived out his expectancy and was entitled to receive monthly indemnity, then the present value of the policy would be $21,155.16. It was further stipulated that a report by Doctor W. I. Porter and a copy of the insurance policy be introduced in the record, and that appellant’s attorney on or about February 16, 1960, informed appellee’s attorney that if they could not agree on a lump sum settlement the case would not be tried. Also in this hearing appellee’s attorney made a statement to the court and introduced further medical statements, indicating to the court the time and effort spent in legal and medical research and in exploring voluminous hospital records. It is indicated by several medical statements that appellee was permanently unable to engage in any occupation. Also testimony by several witnesses indicated that an attorney’s fee in the amount of approximately $4,000 would be reasonable.
The trial court made extensive Findings and Conclusions among which were: All testimony supported the conclusion that appellee was totally disabled when appellant wrote the aforementioned letter on June 23, 1959 discontinuing monthly payments; appellant’s conduct forced appellee to employ counsel; the prayer in the first complaint asking for monthly payments of $116.66 resulted from a mistake on the part of appellee’s attorney, but that this mistake in no way misled appellant who knew the terms of the policy and knew that the monthly payments were $100. Based on these findings, the court rendered judgment against appellant for $922.50, for $111.06 penalty, and $1,250 for attorney’s fee.
Based on the above factual situation we have, after careful consideration, concluded that the trial court was correct in awarding the penalty and the attorney’s fee. Appellant, in its exhaustive and well prepared brief, cites and quotes from several decisions of this court to sustain the general rule that when the insured files suit for the amount due under the policy (for convenience called the “correct amount”) and the insurer confesses judgment for that amount, then the penalty and attorney’s fee are not allowable. That, says appellant, is the situation here because as soon as appellee reduced his claim to $100 per month it confessed judgment. The cases relied on by appellant are: Pacific Mutual Life Insurance Company v. Carter, 92 Ark. 378, 123 S. W. 764; Mississippi Life Insurance Company v. Meadows, 161 Ark. 71, 255 S. W. 293; Illinois Bankers’ Life Association v. Mann, 158 Ark. 425, 250 S. W. 887; Interstate Business Men’s Accident Association v. Sanderson, 148 Ark. 195, 229 S. W. 714; National Fire Insurance Company v. Kight, 185 Ark. 386, 47 S. W. 2d 576; Colorado Life Company v. Polk, 191 Ark. 151, 83 S. W. 2d 534; Broadway v. Home Insurance Company, 203 Ark. 126, 155 S. W. 2d 889; Life & Casualty Company v. Sanders, 173 Ark. 362, 292 S. W. 657.
It must be conceded that the above cases support the general rule. There is, however, at least one factor (present here, we think) which makes the rule inapplicable. That is, if the insurer has previously refused to pay the “correct amount” claimed, making it necessary for the insured to employ counsel and file suit (for the “correct amount”) then the penalty and fees are allowable even though the insurer confesses judgment for that amount. We have reviewed the cases cited by appellant and find that none of them are contrary to what we have just stated, but there are other decisions in support. In the case of Globe & Rutgers Fire Insurance Company v. Batton, 178 Ark. 378, 10 S. W. 2d 859, the Company denied all liability. Thereupon the insured brought suit and the Company admitted liability in the full amount of the policy. This court affirmed the judgment for the penalty and attorney’s fee on the ground that the Company had compelled the insured to incur the expense of employing an attorney. To the same effect is Commercial Union Assurance Company v. Leftwich, 191 Ark. 656, 87 S. W. 2d 55. See, also, Equitable Life Assurance Society of the U. S. v. Gordy, 228 Ark. 643, 309 S. W. 2d 330, where the facts are somewhat similar to the facts under consideration. In sustaining the penalty and attorney’s fee the court, among other things, said: “But the insurance company refused to accept the offer to settle for the five year period, and therefore the policyholder was compelled to file suit.” In the cited case, the insurer confessed judgment for the same amount finally demanded in the pleadings by the insurer.
It is true that in the case under consideration there was no specific demand, prior to filing suit, made by appellee and no corresponding specific denial thereof by appellant, but what did happen amounted to such demand and refusal. The court found, and it is not here denied, that appellee was, on and after May 8, 1959, entitled to the monthly payments, but shortly thereafter appellant by letter informed him in no uncertain terms that they would not make any more payments, and denied all liability. It was at this point, just as if there had been a specific demand and refusal, that appellee was forced to employ an attorney and commence litigation. This, we think, constituted a situation which falls within the spirit if not the letter of the previously mentioned Section 66-514. In material parts said Section reads:
“In all cases where loss occurs (on) and the . . . insurance company . . . liability therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation and/or association shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve (12) per cent damages . . . together with all reasonable attorneys’ fee for the prosecution and collection of said loss; . . .”
We have also concluded that the trial court was correct in allowing an attorney’s fee in the amount of $1,250. It is true that this amount appears to be out of proportion to the actual amount of recovery but the court was entitled to consider the fact that the services of appellee’s attorneys tended to establish appellant’s liability for future payments. See New York Insurance Company v. Dandridge, 204 Ark. 1078, 166 S. W. 2d 1030, and the Gordy case supra.
By stipulation it was established that appellant’s potential liability under the policy has a present value to appellee of more than $20,000. In addition to this three reputable attorneys estimated a fair attorney’s fee in this case to be approximately $5,000.
Appellee has requested the court to make an allowance for an additional attorney’s fee for the prosecution of this appeal, and we have decided that the same should be allowed in the amount of $250.
Affirmed.
George Rose Smith, J., not participating. | [
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Ed. F. McFaddin, Associate Justice.
In this case, the insured sued his insurance carrier to recover damages for failure of the insurance carrier to settle a lawsuit against the insured which could have been settled within the limits 'of the insurance coverage. The insured recovered judgment in the Trial Court, and the insurance carrier brings this appeal.
C. H. Parker, appellee, carried motor vehicle liability insurance with the appellant, Southern Farm Bureau Casualty Insurance Company (hereinafter called “Insurance Company”); and the limit of the coverage was $5,000.00 for injury to one person. In October, 1955, Parker, while driving his insured vehicle, was involved in a traffic mishap with a vehicle owned and driven by D. E. Bush; and Bush’s 19-year-old son, Boy D. Bush, was injured in the mishap. Very little damage was done to either of the vehicles; but Boy D. Bush sued Parker for $25,000.00 for personal injuries. The Insurance Company defended — as it was required to do — the case of Rush v. Parker; and trial resulted in a verdict and judgment against Parker for $12,500.00. Parker then retained personal counsel, who settled the Bush judgment for $6,500.00, with Parker paying $1,500.00 and the insurance company paying $5,000.00 as the limit of its coverage. Parker then brought the present damage action against the Insurance Company to recover the $1,500.00 he had paid to settle the Bush judgment. The complaint in the present case contained the following allegations:
“That the said Boy D. Bush, through his attorneys, made an offer of compromise to the defendant company prior to the trial of said cause. That said offer was in the amount of $4,000.00. That this plaintiff begged and insisted that said compromise settlement be made and entered into. That the defendant company ignored said offer and refused to make such settlement. . . .
“Plaintiff states and alleges that good faith demanded that the defendant company settle said case for the offered, amount of $4,000.00. . . .
“Plaintiff alleges that the acts of the defendant company in this ease amounted to bad faith and negligence and that this plaintiff was forced to, and did, pay the sum of $1,500.00 on account of said-negligence and bad faith of the defendant company.”
As aforesaid, trial in the present case resulted in a verdict and judgment in favor of Parker for $1,500.00; and on this appeal the Insurance Company urges two points:
‘ ‘ 1. The verdict and judgment are not supported by the evidence and are contrary to appellee’s theory of the lawsuit.
“II. The Court erred in refusing to give defendant’s requested instructions.”
I. The Evidence. The testimony is in sharp dispute on several issues, particularly as to what Parker insisted the Insurance Company should do in regard to settling the Bush lawsuit in advance of trial. “On appeal from a judgment based on a jury’s verdict, the evidence must be given the strongest probative force in favor of the successful party that it will reasonably bear.” Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909. This means that we state the evidence favorable to the contentions of Appellee Parker bearing on the matter of failure of the insurance company to settle. The facts showed: (a) that Parker lived in Benton County and Roy D. Rush and his father lived in Washington County; (b) that Roy D. Rush filed the damage suit against Parker in the Circuit Court of Washington County; (c) that Parker immediately contacted the Insurance Company and gave full cooperation to the Insurance Company; (d) that Parker at all times stated that he gave no manual or directional light signal before undertaking a left turn; (e) that while Parker was making, or had undertaken to make, a left turn, the Rush vehicle had the collision with the Parker vehicle; (f) that Roy D. Rush was a polio victim and it was realized that his appearance would arouse jury sympathy for him; (g) that the Insurance Company knew that one physician stated that Roy D. Rush sustained permanent injuries in the traffic mishap; (h) that the local attorney for the Insurance Company in Benton County, after investigation and on his own authority, offered Roy D. Rush $3,000.00 to settle the lawsuit; (i) that Rush’s attorney refused the $3,000.00 offer but agreed that the case could be settled for $4,000.00 (j) that Parker “. . . begged and insisted . . .” that the Insurance Company settle the case in advance of a trial; (k) that Parker was advised by the Insurance Company that Parker had no control of the litigation; (l) that the local attorney for the Insurance Company duly notified the State Office of the $4,000.00 offer; (m) that the Insurance Company did not reply to the local attorney; and (n) that even after the $4,000.00 offer was communicated, the State Claims Manager of the Insurance Company considered $3,000.00 as the greatest offer to make, even though he had all the reports heretofore mentioned. As aforesaid, the facts were not undisputed, but we have detailed enough to make applicable the hereinafter stated rules of law.
II. The Law. Among other instructions, the Court gave the jury the following:
I.
“Before the plaintiff can recover, it is necessary that the plaintiff show by a preponderance of the evidence each of the following four elements:
“1. That the claim of Roy D. Rush against the plaintiff growing out of the automobile collision on October 8, 1955 could have been settled within the $5,000.00 limit of the policy.
“2. That the plaintiff made due demand upon the defendant to settle said claim within the limits of the policy prior to the trial of the case on May 29, 1956 and the defendant refused or failed to settle.
“3. That the plaintiff, as a result of the trial on May 29, 1956, was forced to pay to Roy D. Rush the sum of $1,500.00 over and above the $5,000.00 limit of the policy which was paid by the defendant.
“4. That the action on the part of the defendant in refusing to settle the claim of Roy D. Rush within the limits of the policy when requested to do so by the plaintiff was negligence.”
n.
“You are instructed that due care, or negligence, as used in these instructions, means the doing of something in conduct of one’s business affairs that an ordinary prudent person would not do under the same or similar circumstances, or the failure to do something in the conduct of one’s business affairs that a person of ordinary prudence would do under the same or similar circumstances.”
Specifically, the appellant insists that the Court instructed on the wrong' rule — i. e., negligence — instead of the “bad faith” rule. This contention makes it necessary that we consider holdings in other jurisdictions, because we have no case in Arkansas that commits us exclusively to either the “negligence” rule or the “bad faith” rule. In American Mut. Liability Ins. Co. v. Cooper, 61 F. 2d 446, Judge Bryan of the Fifth Circuit, made this clear statement:
“It is well settled in cases of limited liability insurance that the insurer may so conduct itself as to be liable for the entire judgment recovered against the insured, although that judgment exceeds the amount of liability named in the policy. But the courts that have considered the question are not in agreement as to the nature and kind of proof which it is incumbent upon the insured to make in an action against the insurer for the excess which the insured has been compelled to pay over the amount named in the policy. Some of these cases hold that the insured is entitled to recover upon proof that the insurer in refusing to settle a claim for damages covered by the policy was guilty of negligence. (Cases cited.) Other decisions impose a heavier burden upon the insured, and deny recovery unless he can show that the insurer in refusing to make settlement acted in bacl faith. (Cases cited.) ” (Emphasis supplied.)
Some courts allow recovery on the rule of “bad faith”, while other courts allow recovery on the less stringent rule of negligence. We see no occasion to align Arkansas exclusively with either of these, because we take the same view as did the Supreme Court of Alabama in Waters v. American Cas. Co., 261 Ala. 252, 73 So. 2d 524:
“This question, presented here, has not been previously decided by this Court. "We are aware that in cases of this nature courts generally hold that there may be liability on the part of the insurer for the excess of the judgment above the policy limits, but there is a division among them as to whether the liability of the insurer is based on (1) the rule of bad faith or (2) the rule of negligence. 131 A. L. R. 1500; 71 A. L. R. 1485; 43 A.L.R. 329; 37 A.L.R. 1484; 34 A.L.R. 750; 45 C. J. S., Insurance, § 936, p. 1069; 8 Appleman Insurance Law and Practice, Sections 4712 and 4713. We hold that there may be liability under both rules and properly drawn counts based either on negligence or bad faith should be held good, and separate counts, one charging negligence and one charging bad faith may be joined in the same complaint.”
In the case at bar the complaint, as previously copied, contained allegations both as to bad faith and as to negligence; but when the plaintiff asked his instructions he limited them to the rule of negligence. We see no error in so doing. The Insurance Company owed Parker, as its insured, the duty to act in good faith., and also the. duty to act without .negligence. Appellant complains bitterly of the failure of the Court to give its instructions'on the “bad faith” theory; and says that in Home Indemnity Ins. Co. v. Snowden, 223 Ark. 64, 264 S. W. 2d 642, we approved instructions that contained the idea of bad faith. We are here considering a factual situation entirely different from that in Insurance Go. v. Snowden. There, the insurance company refused to admit ány unconditional liability; and the insured settled with the injured parties in advance of any trial and sued the insurance company for the amount of the settlement. Here, the Insurance Company all the time admitted to its insured full liability to the extent of the coverage, but failed to effect settlement within such limits. Even though we approved instructions on the bad faith rule in the Snowden case, it still does not preclude us from allowing a recovery on either theory, just as did the Supreme Court of Alabama. It may be negligence to refuse to settle, even though the negligent person may be acting in good faith. One may in good faith make an honest mistake which hurts another, and still be liable for negligence in making the mistake even though no harm was intended.
In American Fidelity & Cas. Co. v. Nichols, 173 F. 2d 830, Judge Orie Phillips of the Tenth Circuit, used this language:
“When a liability insurance company by the terms of its policy obtains from the insured a power, irrevocable during the continuance of its liability under the policy, to determine whether an offer of compromise of a claim shall be accepted or rejected, it creates a fiduciary relationship between it and the insured with the resulting duties that grow out of such a relationship. Under policies like those here involved, the insurer and the insured 'owe to e'ach other the duty to exercise the utmost good faith. While the insurance company, in determining whether to accept or reject án offer of compromise, may properly give consideration to its own interests, it must, in good faith, give at least equal consideration to the interests of the insured and if it fails so to do it acts in bad faith.”
See also Johnson v. Hardware Mutual Cas. Co., 108 Vt. 269, 187 A. 788.
In the case at bar the policy which the Insurance Company issued to Parker provided that the Insurance Company would defend any suit — “. . . but the company shall have the right to make such investigation, negotiation, and settlement of any claim or suit as may be deemed expedient by the company. . . .” By this language the Insurance Company became a fiduciary to act, not only for its own interest, but also for the best interest of Parker. The Supreme Court of South Carolina, in Tyger River Pine Co. v. Maryland Casualty Co., 170 S. C. 286, 170 S. E. 346, used this language:
“The charge that it was the duty of appellant to compromise the claim if that was the reasonable thing to do is supported by authority.
“In the annotation of the case of U. S. Casualty Co. v. Johnston Drilling Co., (161 Ark. 158, 255 S. W. 890), 34 A. L. R. 727, it was said: ‘It has been held that an insurer against liability for accidents which assumes the duty of defending a claim owes the assured the duty of settling the claim if that is the reasonable thing to do.’ Citing: Cavanaugh Bros. v. General Accident F. & L. Assur. Corp., 79 N. H. 186, 106 A. 604.”
After a thorough review of the record we reach the conclusion that no error occurred in the trial prejudicial to the appellant.
Affirmed.
The local attorney for the Insurance Company in Benton County is a reputable high-class attorney, and nothing herein reflects on his ability or integrity.
The $4,000.00 offer was contained in a letter from Rush’s attorney to the local attorney for the Insurance Company, dated April 18, 1956, and the letter reads as follows:
“The above case has been set for trial in Circuit Court here on Monday, May 21,1956. We understand that the Clerk will notify you to this effect but we thought that we should inform you so that there will be no misunderstanding as to the date it has been set for trial. We are anxious to try this case as soon as possible.
“If your client is still interested in settling this case, I believe that our client would be willing to accept $4,000.00 in settlement thereof, if settlement is effected before we go to further expense and trouble in preparation of the case for trial. The offer you made of $3,000.00 was not enough. While I do not think that the amount herein suggested would be adequate compensation for the injuries sustained by this young man, in order to get the matter settled soon without the necessity of a trial, I believe it could be settled for $4,000.00. Otherwise, it is our plan to be ready to try this case on May 21, 1956.”
Here is the testimony of the State Claims Manager of the Insurance Company:
“Q. Did you put as your top valuation in the case the sum of three thousand dollars for the purpose of settling?
A. It would certainly be complete tops as far as I was concerned
Q. Yes, sir. Now, I believe you’ve also testified that under no circumstances would you have agreed or did agree to anything over three thousand?
A. I believe what I said, I felt in my opinion that was the top settlement.
Q. That was the top settlement you would permit Mr. Little or any body else to agree to settle on; is that right?
A. That’s correct.”
The Supreme Court of Alabama has reaffirmed this holding of liability of the insurance carrier on either negligence or bad faith. See Ala. Farm Bureau Ins. Co. v. Dalrymple, 270 Ala. 119, 166 So. 2d 924.
In 40 A.L.R. 2d 168 there is a splendid annotation entitled: “Duty of liability insurer to settle or compromise.” Cases from many jurisdictions are cited. We have examined them all; but we list the following as those worthy of study, in addition to the cases cited in this opinion: Noshey v. American Auto. Ins. Co. (6th Cir.), 68 F. 2d 808; Maryland Cas. Co. v. Cook-O’Brien Const. Co. (8th Cir.) 69 F. 2d 462; Ballard v. Citizens Cas. Co. (7th Cir.), 196 F. 2d 96; Auto Mutual Indemnity Co. v. Shaw (Fla.), 184 So. 852; Stowers Furn. Co. v. American Indemnity Co. (Tex.), 15 S. W. 2d 544; Wilson v. Aetna Cas. & Surety Co. (Maine), 76 A. 2d 111; Dumas v. Hartford Accident & Indemnity Co. (N.H.), 56 A. 2d 57; Henke v. Iowa Mut. Cas. Ins. Co. (Iowa), 97 N. W. 2d 168; Abrams v. Factory Mutual Liability Ins. Co. (Mass.), 10 N. E. 2d 82; Best Bldg. Co. v. Employers Liability Assurance Corp. (N.Y.), 160 N.E. 911; Hoyt v. Factory Mut. Lia. Ins. Co. (Conn.), 179 A. 842; National Mut. Cas. Co. v. Britt (Okla.), 200 P. 2d 407; Burnham v. Commercial Cas. Ins. Co. (Wash.), 117 P. 2d 644; and Johnson v. Hardware Mut. Cas. Co. (Vt.), 187 A. 788. There are also notes involving matters allied with the question here at issue and found in 7 Ark. Law Review, p. 142; 10 Ark. Law Review, p. 138; and 11 Ark. Law Rev. p. 26. See also Am. Jur. 29A, p. 556, § 1444 et seq.; 45 C.J.S. 1069, “Insurance” §-936; and Appleman on Insurance, Vol. 8, § 4712 et seq. | [
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George Rose Smith, J.
This is an action by the appellant for conversion. On August 14,1957, the appellant bought an airplane from the appellee, under a conditional sales contract by which the seller retained title until the purchase price was fully paid. The contract was later transferred by the appellee to a Pine Bluff bank. The appellant’s complaint asserts that on January 8, 1959, the appellee wrongfully and surreptitiously entered the appellant’s premises, removed the airplane from its hangar, and converted the plane to its own use. The complaint sought damages totaling $76,000 for the conversion and also sought a judgment for $574.92 upon an account for labor and materials furnished to the appellee.
The appellee filed an answer stating that the appellant had defaulted in its monthly payments and had in other respects breached its contract. It was asserted that the bank had accordingly elected to declare the entire balance immediately due and had demanded and received payment of that balance from the appellee. The appellee alleged that it had rightfully repossessed the airplane pursuant to the conditional sales contract. To this answer the appellant filed a reply, asserting that the bank was still the owner of the conditional sales contract on the date that the appellee repossessed the plane and that the bank, by accepting a check from the purchaser that same morning, had waived its right to accelerate the maturity of the indebtedness. Both the defendant’s answer and the plaintiff’s reply contained a general denial of all allegations not specifically admitted.
At this point in the case the appellee filed a motion for a summary judgment upon the pleadings. For the purpose of this motion it was stipulated that the conditional sales contract was executed in Arkansas and that on the date of its execution the plaintiff, an Illinois corporation, was transacting business in this state without having qualified to do business herein as a foreign corporation. The trial court sustained the appel lee’s motion for judgment, finding that the plaintiff conld not prove its cause of action for conversion without relying upon the conditional sales contract, which the court considered to be unenforceable under Act 313 of 1907. Ark. Stats. 1947, § 64-1202.
The appellant argues two points for reversal. First, it is contended that § 2 of the 1907 statute, which provides that an unlicensed foreign corporation cannot make any contract in the state which can be enforced by it, was impliedly repealed by Act 131 of 1947, compiled as Ark. Stats., §§ 64-1205 et seq.
We are unable to agree with the contention that the earlier law was impliedly repealed by the 1947 act. Section 1 of the older statute required a foreign corporation to qualify by filing a copy of its charter and appointing an agent for service. Ark. Stats., § 64-1201. The next section provided a dual penalty for the doing of business without complying with the act: (a) The unlicensed corporation was subject to a fine of not less than $1,000, to be recovered at the instance of the prosecuting attorney, and (b) the corporation’s contracts were unenforceable.
Act 131 of 1947 did not expressly repeal the 1907 statute. The 1947 act increased the fine to not less than $5,000, made it recoverable at the instance of either the prosecuting attorney or the attorney general, and contained administrative provisions not relevant to the present discussion.
There is no conflict between the 1947 act, which dealt mainly with the pecuniary penalty, and that portion of the 1907 act which rendered contracts unenforceable. In the absence of such a conflict an implied repeal can be found only if it appears that the legislature intended for the later statute to cover the entire field and thus to serve as a substitute for the original law. Forby v. Fulk, 214 Ark. 175, 214 S. W. 2d 920.
We think it clear that Act 131 of 1947 was not meant to be a recodification of § 2 of Act 313 of 1907. Sec tion 1 of the older statute outlined the basic steps by which a foreign corporation might qualify to do business in Arkansas. This section was left untouched by the 1947 act, which by its terms applies to any corporation which fails to file a copy of its charter “as now provided by law.” Furthermore, it had been the state’s policy for forty years to supplement the monetary penalty by the additional provision that the contracts of unlicensed foreign corporations should be unenforceable. We are not persuaded that the lawmakers, merely by increasing the fine from $1,000 to $5,000, intended by that action to declare by implication that the state’s longstanding policy was being abandoned. The precise point was decided in Hicks Body Co. v. Ward Body Works, 8th Cir., 233 F. 2d 481, where the court held that the 1947 act did not impliedly repeal the 1907 law. We think the Court of Appeals correctly interpreted the Arkansas statutes, and we are in agreement with its reasoning and conclusion.
The appellant’s second point is that the trial court erred in concluding from the pleadings and stipulation that in no event could the plaintiff prove its cause of action without asking the court to enforce the conditional sales contract. The court below, in announcing its decision, relied upon this language in Republic Power & Service Co. v. Gus Blass Co., 165 Ark. 163, 263 S. W. 785: “The test to determine whether the plaintiff is entitled to recover in an action like this, or not, is his ability to establish his case without any aid from the illegal transaction. If his right to recover depends on the contract which is prohibited by statute, and that contract must necessarily be proved to make out his case, there can be no recovery.”
In our opinion there are two controlling reasons for concluding that the Republic case does not govern the case at bar. First, the present case arises upon a motion for a summary judgment upon the pleadings. Such a motion, in a situation like the one now before us, has not traditionally been recognized as a part of our prac tice. See the remarks of Judge Charles W. Light in a panel discussion reported in 12 Ark. L. Rev. 57, 63-66. The summary judgment procedure has been approved by us when the admissions in the pleadings left no justiciable issue for the court to decide. Trinity Universal Ins. Co. v. Robinson, 227 Ark. 482, 299 S. W. 2d 833, commented upon in 12 Ark. L. Rev. 178. It cannot be said that the pleadings in the case at hand leave no justiciable issue for the court. Both the answer and the reply contain denials as well as admissions. The motion for summary judgment may be likened to a demurrer to the plaintiff’s reply, and it is plain enough that that pleading is not subject to demurrer.
Secondly, at this stage of the litigation it cannot be declared with certainty that the appellant will necessarily be compelled to rely upon the conditional sales contract. A foreign corporation, even though unlicensed, is nevertheless permitted to bring suit to protect its property as long as the suit does not unavoidably involve the enforcement of a prohibited contract. Fletcher, Cyclopedia of Corporations (Perm. Ed.), § 8796. Quite obviously a corporation’s failure to qualify to do business should not have the effect of enabling third persons to misappropriate its property with impunity.
Here the appellant alleges a conversion. Although it is sometimes loosely said that the plaintiff in trover must recover upon the strength of his own title, the cases actually recognize that possession alone is sufficient as against a person having no better right to the property. “But the true rule is, and it is believed that on principle the adjudications may be harmonized upon this: That possession, or the right of present possession at the time of a conversion of chattels is sufficient as a predicate for trover in all cases where the defendant cannot show a better right, since possession carries with it a presumption of ownership.” Bowers, The Law of Conversion, § 432; accord, Rest., Torts, § 248. Upon the pleadings alone we do not attempt to decide — and indeed cannot decide — whether the appellant can prove its case with out running afoul of the statute that applies to the contracts of an unlicensed foreign corporation. That is a matter that should he allowed to arise and he decided in the normal course of a trial upon the merits.
Reversed. | [
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Carleton Harris, Chief Justice.
This appeal results from a decree entered hy the Chancery Court wherein the complaint of appellant seeking specific performance of an alleged agreement, was dismissed for want of equity.
Suit was instituted hy appellant on May 28, 1958, seeking to enforce alleged rights under a pre-incorporation subscription offer executed hy him in favor of appellee on March 31, 1954. Prior to this time, Welborne was a stockholder and member of the Board of Directors of Preferred Risk Mutual Insurance Company. On the aforesaid date, the mutual insurance company was converted to its present status as a stock company, and known as Preferred Risk Insurance Company. Appellant was a stockholder, and served as an officer and director in the company until May 26, 1956, when he resigned from the Board of Directors. He remained an employee of appellee until February, 1957, and, as of February 27th of that year, sold all shares that he owned in the company. The subscription agreement entered into on March 31, 1954, is as follows:
“WHEREAS, it is the desire of the undersigned to purchase 1,000 shares of common stock, par value Ten Dollars ($10.00), in an insurance corporation to be known as the Preferred Risk Insurance Company.
NOW, THEREFORE, BE IT AGREED AS FOLLOWS: That for and in consideration of the agreement of the undersigned to purchase the aforesaid shares of stock, and for and in consideration of the mutual promises of other subscribers to additional shares of common stock in said corporation to be formed, that the undersigned agrees to purchase from said corporation the above stock, on demand of said corporation.”
The stock structure of the appellee is reflected by the minutes of the meetings of the Board of Directors. On June 30, 1954, a motion was unanimously passed by the Board providing that stock subscribed to at $20 a share prior to the organization of the company, be delivered before July 20, 1954, to those paying said purchase price, and that no further stock be sold at this price without further authorization of the Board of Directors. Appellant was present at this Board meeting. In subsequent meetings, par value of stock was reduced from $10 to $1 per share, and the Board unanimously passed a motion that stockholders of record as of May 1, 1956, be offered one share of stock for each three shares held, the $1 par value stock to be offered for $2.50 per share. The record reflects that appellant bought 1,200 shares of this stock, apparently at the offered price of $2.50 per share. The Board, on May 23, 1956, with appellant present, unanimously voted to offer a public issue of stock at $15 per share (par value $1) and a motion was also passed unanimously providing “that all holders of rights or options to purchase stock be notified that any such right to purchase stock below the Public Issue price shall be void and of no effect after June 30, 1956. ’ ’ Sometime during this year, the subscription instrument was returned to Welborne, according to W. M. Ritter, president of the company, at appellant’s request. In June/1957, a stock dividend on the basis of two shares for each outstanding share was declared. On March 25, 1958, Bitter directed a letter to Welborne, stating that the Board of Directors had voted to make demand upon each subscriber for the amount of stock subscribed, at $7.50 per share for the- $1 par value stock. The letter states:
“Your subscription was for 10,000 shares, therefore the amount necessary to carry it out would be 10,000 x $7.50. The other alternative provided by the Besolution is that you release the subscription by signing the attached release.
We presume that you will not want to complete the subscription and therefore ask that you sign and return three copies of the attached release,-by-return mail.”
Welborne replied as follows:
“Pursuant to your demand of March 25, 1958, I hereby tender you $10,000.00 in cash and request that your company in return issue to me 30,000 shares of $1.00 par value common stock of the Preferred Bisk Insurance Company as per my subscription agreement signed by me on the 31st day of March, 1954.”
Appellee declined to accept this proposition, and suit followed.
Appellant contends that the subscription was a contract which he is entitled to enforce by specific performance, and appellee asserts five different defenses. We deem a discussion of the various contentions advanced by the parties to be unnecessary, in view of the fact that we consider this litigation to be controlled by the doctrine of laches. This defense is closely associated with estoppel, upon which doctrine the Chancellor’s decision was predicated, and we might here say that this is likewise a valid defense in this case.
Laches is defined by Bouvier’s Law. Dictionary (Third Bevision) as “unreasonable delay; neglect to do a thing or to seek to enforce a. right at a proper time.” Also, ‘ ‘ The- neglect, to- do what in law should have been done, for an unreasonable and unexplained length of time, and under circumstances permitting diligence.” Appellant’s right to purchase common stock came into being in March, 1954. The record does not reflect the reason for appellant’s failure to exercise this right at that time, or in the subsequent months and years, though appellant, as a stockholder, officer, and director, in the company, was familiar with, and had participated in, the various board meetings heretofore enumerated; no effort was ever made to enforce any purported rights under the subscription until the letter was received from President Ritter. This letter cannot be relied upon by appellant, for it was written without authority; i. e., the record reflects no authorization from the board for the proposition contained in the letter. For that matter, this proposal was entirely different from the terms of the original subscription, and, as earlier mentioned, according to the record, the subscription instrument had already been reclaimed by Welborne sometime in 1956.
It is at once apparent that enforcement of Welborne’s claim would be most inequitable, for it would permit appellant to stand by for an unreasonable and unexplained length of time (four years), and as far as this record reflects, under circumstances permitting diligence — yet, glean high profits through such conduct. We consider the language in Austin v. Hallmark Oil Co., 21 Cal. 2d 718, 134 P. 2d 777, to be entirely apropos:
“It is not appropriate to grant specific performance of a subscription contract when the, complainant, instead of paying for the stock subscribed to at the time the corporation is in great need of funds’, does not offer to pay until the success of the venture undertaken by the corporation is assured.”
As stated in 49 American Jurisprudence, under the heading “Specific Performance”, § 73, p. 89:
‘ ‘ The well-established equitable principle that equity aids the vigilant and refuses to help those who sleep on their rights to the prejudice of the party against whom relief is asked is fully applicable to parties seeking specific performance of contracts. It is universally recognized that inexcusable laches or default on the. part of the party seeking such relief will be a sufficient ground for the denial o f the. relief. * * * Laches is less excusable in regard to certain classes of property than others. For example, promptness, in seeking specific performance is especially required in reference to contracts involving property likely to fluctuate suddenly in market value.”
Also, from § 76, page 93:
“A common consequence of delay is a change in value of the property which is the subject of the contract, and where this has taken place the courts will usually decline to enforce, specific performance. This rule is especially applicable where tjhe. complainant has laid by apparently for the purpose of taking advantage of the change in value. Equity will not relieve one guilty of gross delay who has lain by until events enabled him to make his election as to completing the contract with certainty of advantage to himself. Equity will not enable a party to speculate upon the advantage of a contract by permitting him to hold back from the assertion of his rights until it is clear that the contract is to his advantage, and then allow him to have specific performance, and thus encourage delays and favor speculation in possible changes in value. * * * Promptness on the part of the complainant in seeking enforce ment or in performing his part of the contract seems to he especially necessary in the case of property'which is particularly subject to fluctuation, such as corporate stock.”
In Lacey v. Bennett, 210 Ark. 277, 195 S. W. 2d 341 (1946), appellant entered into a contract on January 5, 1942, for the purchase of real property, but did nothing to assert his rights until September 9, 1945, when he sought specific performance in a cross-complaint, after Bennett had instituted suit to quiet title. In upholding the trial court’s decree refusing specific performance, this Court quoted from 65 A. L. R., page 53, as follows:
“To secure the aid of equity in enforcing the performance of a contract, it must be made to appear that the plaintiff or complainant has been prompt, ready, able, and eager to perform and abide by the same. If he has failed or refused to claim or act under the contract for such a length of time as to give the impression that he has waived or abandoned the sale or purchase, especially if circumstances justify the belief that his intention was to perform the contract only in case it suited his interests, he will be denied this equitable relief. The rule that, to be entitled to the specific performance of a contract, the party seeking such relief must show that he has been at all times ready, able, and willing to perform on his part, is quite universally recognized in holding that inexcusable laches or default on the part of the party seeking such relief will be a sufficient ground for the denial of the relief.”
Affirmed.
Originally, the par value of the stock was $10 per share, but the initial subscribers agreed to pay $20 per share.
Apparently the price for the public issue had been reduced from $15 to $7.50.
Appellee, in its brief, states: “It would be a monstrous result if the law were such that a person could remain mute for more than four years and obtain 30,000 shares of $1.00 par value stock having a public sale price of $225,000.00 (i.e., $7.50 per share) upon payment of the mere sum of $10,000.00.” In his reply, appellant states: “The stock of Preferred Risk Insurance Company is not listed for sale on any exchange. Its value depends on finding a buyer and dealing with him on whatever price he is willing to pay. There was no showing in the record of the number of shares which have been sold by appellee at $7.50 per share or at any other price. Appellee’s contention that the stock in litigation here is worth $225,000.00 is a. mere fantasy * *' Irrespective; of the accuracy of appellee’s statement, it is obvious that the stock- has increased considerably in value. | [
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Paul Ward, Associate Justice.
This is a Workmen’s Compensation case in which the Commission denied compensation to appellant, the widow of Buford M. Bobbins who, until his death, was a regular employee of Elwood C. Jackson, a sawmill operator. The Circuit Court approved the finding of the Commission. Jackson’s insurance carrier was made a party to the proceedings, but hereafter we will refer to Jackson as the appellee.
The Commission disallowed compensation on the ground that Bobbins was not acting within the scope of Ms employment when he was killed. Appellant seeks a reversal on the ground that the Commission failed to apply what is sometimes called the “concurrent benefit” rule. The argument is that other jurisdictions have adopted this rule in workmen’s compensation cases and that this court should do likewise.
There is very little, if any, dispute about the material facts out of which the claim arose. Jackson was the owner of two sawmills, one located near the town of Bethlehem and the other near Magnet Cove. At the time Robbins was killed the mill at the former location had not been in use for some three or four weeks, but the other mill where Robbins worked was in operation. The Bethlehem mill had been engaged in cutting timber, under contract, on land belonging to the International Paper Company. Under tMs contract appellee was obligated to cut the unmerchantable hardwood trees that were within 60 feet of a utility line, fence, or building, or within 100 feet of a public road. The remainder of such timber was to be “girdled”.
On Friday, October 10, 1958, after appellee and Ms mill crew (including Robbins) had completed a usual day’s work at the Magnet Cove mill, appellee asked the crew to meet him at the Bethlehem mill on the following morning for the purpose of loading and moving that mill to his home for storage. The process of moving the mill began at about 7:00 a.m. and was completed about 10:30 a.m. Robbins, who usually was a sawyer, helped in the moving and was paid for a full day’s work and all employees were dismissed for the day. Several trees at the Bethlehem site had not at that time been “girdled” or cut as called for in the contract.
While at the Bethlehem site and while in the moving-process Robbins pointed to four or five unmerchantable trees which had not been “girdled” (not trees that were to be cut) and stated to appellee that he might come back and cut some firewood for his own use. Accordingly, Robbins did return alone, after leaving appellee’s house, to cut the trees with his own saw. In the process of cutting one of the trees it fell on him and killed him.
Appellee admits that he gave Bobbins permission to cut the trees, and also stated that “the cutting of unmerchantable hardwood on the International Paper Company land” was for his own benefit. Likewise, appellee stated that “the removal of this unwanted, unmerchantable hardwood timber from the International Paper Company land (was) in the furtherance of (his) business and (Ms) obligation under the timber contract.” Appellee also stated that the cutting of these trees by Bobbins was of mutual benefit to him and Bobbins, and that all of the unmerchantable trees had to be “girdled”. Later all these trees were “girdled” but none of them were cut down.
Appellant apparently concedes that, under the former decisions of tMs court, the findings of the Commission should be sustained, but it is ably and earnestly insisted that under the “concurrent benefit” rule the claim is compensable, that such rule has been adopted in other jurisdictions, and that this court should also adopt that rule.
Insofar as it applies to this case, Ark. Stats. § 81-1305, provides that every employer shall provide compensation for a death “arising out of and in the course of employment.” Before appellant can recover it must appear Bobbins’ death arose (a) out of Ms employment and also (b) in the course of his employment. Pearson v. Faulkner Radio Service Company, 220 Ark. 368, 247 S. W. 2d 964, and, American Casualty Company v. Jones, 224 Ark. 731, 276 S. W. 2d 41.
To fully understand appellant’s argument in regard to the “concurrent benefit” rule and its application to a case of this nature, we deem it appropriate to examine briefly some of the authorities from other jurisdictions which are relied on to support the rule.
Wamhoff v. Wagner Electric Corporation, 1945, 354 Mo. 711, 190 S. W. 2d 915, 161 A. L. R. 1454. Appellant, as an employee of appellee, was engaged in electroplating metal parts. While so engaged he also undertook to plate a metal toy for his son and was injured. In affirming an award for compensation the court, among other things approved this quotation from 71 C. J., p. 675, § 420:
“An injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually compensable, for when some advantage to the employer results from the employee’s conduct, his act cannot be regarded as purely personal and wholly unrelated to the employment. Accordingly an injury resulting from such an act arises out of and in the course of the employment; and this rule is applicable even though the advantage to the employer is slight.”
Phoenix Indemnity Co. v. Industrial Accident Commission, 1948, 31 Cal. 2d 856, 193 P. 2d 745. Marion Robert Hamilton was an employee of the Weggers Airplane Seeding and Dusting Company and was engaged in flying planes in seeding and dusting services. In addition the company offered instructions in aviation for a fee with Hamilton as the flight instructor. On one occasion he took his 12 year old daughter for a free ride with the company’s consent and both were killed. There was testimony to the effect that the daughter expected to take up flying sometime later. In approving an award for the widow the court approved this statement from a cited authority:
“The true rule * * * is that the injury is compensable if received while the employee is doing those reasonable things which his contract of employment expressly or impliedly authorizes him to do.”
Kimberly-Clark Co. v. Industrial Comm. et al., 1925, 187 Wis. 53, 203 N. W. 737. Dominie Darne, an employee of appellant, was engaged in keeping machinery in repair, necessitating the use of many tools some of which, if not all, belonged to him. While on the regular job he undertook to make a box in which to keep the tools for his convenience, and was injured. Again the court affirmed an award and said: “the commission could reasonably draw the conclusion that the service the employee performed was within the scope of and incidental to his employment, because its performance inured to the benefit of the employer.” The court also said there was a “concurrent benefit.”
Tallent v. M. C. Lyle & Son, 1948, 187 Tenn. 482, 216 S. W. 2d 7. Tallent, as an employee of appellee, was supposed (according to the findings of the trial court) to carry fellow employees to and from work in his car. The car got out of order and while Tallent was trying to fix it his index finger was injured. In affirming an award for the injury the court, among other things said: “Acts for the employer’s benefit are usually held to arise out of the employment, if expressly, impliedly or reasonably authorized.” The court also approved this statement: “. . . where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when a third person was injured.”
Appellant quotes from Schneider’s work on Workmen’s Compensation Law, Vol. 6, page 59:
“Two or more causes may operate to cause the disability of an employee. They are spoken of as “concurrent”, “contributing”, “exciting”, and “superinducing” causes. If all contribute to the ultimate result, they are all proximate causes of that result.”
Appellant cites additional decisions from other states in support of the “concurrent benefit” rule. We have carefully examined these and find that they are merely cumulative to those heretofore mentioned.
We express at this time no dissatisfaction with the so-called “concurrent benefit” rule as it has been applied in the cases above referred to and relied on by appellant. We are not convinced however that its application calls for a reversal of this case. As we view the rule it merely calls for a liberal construction of the requirements of the statute that requires the injury (resulting in death) must “arise out of and in the course of employment. ’ ’ In this case the Commission, after reviewing all the facts, found that Robbins, at the time he was killed, “was not acting within the scope of his employment.” This finding of the Commission must be affirmed if it is supported by substantial evidence. Wren v. D. F. Jones Construction Company, 210 Ark. 40, 194 S. W. 2d 896; White v. First Electric Cooperative Corp., 230 Ark. 925, 327 S. W. 2d 720. On this point, it cannot reasonably be contended that there is any lack of substantial evidence to support the findings of the Commission. It found, and we must agree, that Robbins “ended his day’s work at approximately 10:00 to 10:30 a.m. on the morning of the day on which he met his death. At that time his duties of employment ended for the day. Nothing further was requested, expected, or needed of him. ‘ ‘ The deceased’s injury (death) did not occur while he was performing the duties of his employment; there was no connection between the conditions under which his work was required to be performed and his injury nor can the injury be traced to the employment as a contributing proximate cause.” “The deceased’s sole purpose in going upon the premises of the mill site was to cut stove wood for himself.” To the above it may be added it appears from testimony that appellee was not interested in having this particular tree (or trees) cut down — he was only interested in having the tree (or trees) “girdled”. Had the deceased not attempted to cut the tree obviously he would not have been killed.
Under numerous decisions of this court the above state of facts would call for an affirmance of this case. Impliedly, at least, appellant concedes the validity of the above statement because reliance on the “concurrent benefit” rule is invoked for a reversal. The essence of appellant’s contention appears to us to be that the “rule” is applicable here and therefore calls for a reversal because the act of cutting the tree by Robbins was of some small, but doubtful, benefit to Jackson. We are unable to agree with this contention.
As before indicated we do not take the position that the “rule” is not sound when properly applied to a given state of facts. Our position is that such “rule” has no application to the facts of this case, because it has been shown and found by the Commission, that Bobbins was not in the course of his employment when he was killed.
In all of the cases cited by appellant the courts relied not only on some benefit to the employer but also on other facts and circumstances which placed the claimant within the scope of employment, and in each case the injury occurred during the time of employment. Those cases are distinguishable from the case under consideration on the facts.
In the Wamhoff case, the claimant was injured during regular working hours and the court found that the employer not only “should have anticipated the activities of respondent and other employees in doing private work, but that it encouraged such activities.” In the Phoenix case, the employee was killed during work hours, and he was employed in an activity approved as a part of his employment. The same thing was true in the Kimberly-Clark case and in the Tallent case.
It appears to us that, to bring the facts of this case on a parallel with the facts in the above mentioned case, the facts here would have to be altered so as to show that Bobbins was engaged in cutting"or “girdling” trees as a part of his usual employment and at the time and place of such employment, and that he was killed while cutting a tree for his own private use for firewood. Some of the cited cases seem to also require a further showing that, in so doing, Bobbins must be engaged in an activity recognized by Jackson as a customary procedure. Under the above supposed facts we can understand how an application of the “concurrent benefit” rule might be applicable and helpful, but not so under the facts and circumstances of this case. The “rule” cannot, we hold, be applied to circumvent the necessity of a claimant first showing that his injury arose out of and in the course of employment.
It therefore follows that the judgment of the trial court (affirming the Commission) must be, and it is hereby, affirmed.
Affirmed.
Johnson, J., dissents. | [
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Jim Johnson, Associate Justice.
Appellees, J. M. Malone and Gertrude Malone, his wife, instituted this action in the Chancery Court against appellants, William P. Kirkham and Ruby Kirkham, his wife, to set aside a deed because of failure of consideration. At the time of the conveyance, out of which this suit arises, appellant, William P. Kirkham, was married to appellees’ daughter, Carrie Belle Kirkham, who is now dead.
In 1955, appellant, William P. Kirkham, and his then wife, Carrie Belle Kirkham, who will be hereinafter referred to as the Kirkhams, were living in Hot Springs, Arkansas, where Mr. Kirkham worked as a clerk in one of the gambling houses or “bookie joints”, and the ap pellees lived in Texas. The appellees had in their custody and took care of Carrie Belle’s daughter by a former marriage. On December 30, 1955, earnest money in the sum of $500 was paid to the real estate agent, Mr. Franks, on the property here in question. This $500 was paid with $300 in cash furnished by Carrie Belle Kirk-ham and a $200 check drawn on appellees’ account in a Greenville, Texas, bank. On January 2, 1956, the transaction was closed out and a deed received wherein the balance of the consideration in the amount of $2,500 was paid in twenty-five one hundred dollar bills. The Kirk-hams and appellees were all present at the time of this transaction. On March 11, 1956, a baby was born to the Kirkhams and not long thereafter it was learned that Carrie Belle Kirkham had a cancer. On August 20,1957, the appellees executed a deed to the Kirkhams to the property wherein the consideration as recited is Ten Dollars and other good and valuable consideration. In December of 1957 Carrie Belle Kirkham died. This suit to set aside the deed made in August 1957 was filed on April 30, 1959, after appellant, "William P. Kirkham, had married appellant, Ruby Kirkham, and alleges that the true consideration for the August 1957 deed was the promise of the Kirkhams that they would modernize the house, all of which the said William P. Kirkham has failed to do. The appellants filed a general denial and from a decree entered after the hearing of testimony setting aside the deed, the appellants bring this appeal based upon the theory that appellees failed to establish the alleged failure of consideration by the necessary clear, satisfactory, cogent and convincing evidence.
At the outset it must be recognized that the law is firmly established that to justify the setting aside of a deed for failure of consideration, the evidence of such failure must be clear, cogent and convincing. See: Carnall v. Wilson, 14 Ark. 482; Rector v. Collins, 46 Ark. 167; McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Goerke v. Rodgers, 75 Ark. 72, 86 S. W. 837; McCracken v. McBee, 96 Ark. 251, 131 S. W. 2d 450; Adkins v. Hoskins, 176 Ark. 565, 3 S. W. 2d 322; Swim v. Brewster, 177 Ark. 1171, 9 S. W. 2d 560; Bell v. Castleberry, 96 Ark. 564, 132 S. W. 649; Polk v. Brown, 117 Ark. 321, 174 S. W. 562; Johnson v. McAdoo, 222 Ark. 914, 263 S. W. 2d 701. A careful review of the record fails to reveal any evidence that the deed in question was given in consideration of a promise by Kirk-ham to repair the house except the testimony of the plaintiffs, the Malones. Of course, they are interested parties and the courts are not bound to accept their testimony as true. Stovall v. Stovall, 228 Ark. 1077, 312 S. W. 2d 337; McDaniel v. Johnson, 225 Ark. 6, 278 S. W. 2d 657.
Some of the Malones’ relatives did testify that they had heard Kirkham say that he intended to repair the house, and Kirkham himself says he had such intentions, but the relatives of Malone did not say that Kirkham’s statement about intending to repair the house amounted to a promise or that such statement was given in consideration of a deed. As we view this entire matter on trial de novo, we are convinced that not only does the evidence produced by the Malones fail to make out a case by clear and convincing testimony, but it would be hard for us to say that they proved their case to any degree of satisfaction. Malone did not merely testify that he owned the property and conveyed it to the Kirkhams in consideration of an alleged promise to repair the premises, but at the very outset of his testimony Malone went into great detail as to how he acquired his alleged ownership of the property. He introduced the deed he received from Charles Dittman showing a consideration of $3,000. He went into all the details of how he had made a down payment of $300 in cash and the giving of a check for $200; that his daughter, Carrie Belle, let him have the $300 in cash to make the down payment and, further, while still testifying on direct examination, he tried to show where he got the balance of $2,500 used in making the purchase. The $2,500 was in one hundred dollar bills. He never explained where he got the one hundred dollar bills. He said he got the money from various sources — from the Government and from the sale of two farms, but he did not say such money was paid to him in one hundred dollar bills. He was asked on direct examination:
“Q. The money that you paid for that farm, except for the $300.00, was your money, is that correct?
‘ ‘ A. That’s right. ’ ’
He then stated that Carrie Belle gave him the $300. Malone was further asked on direct examination:
“Q. Mr. Malone, what was the consideration for that deed?
“A. Well, Bill Kirkham and his wife, Carrie Bell, wanted me to have-”
The sentence was not completed. He further stated that Kirkham’s alleged promise to improve the property was made after the property was deeded to Kirkham and his wife, hut later changed his testimony to say that the deed was made after the promise to repair. Furthermore, he testified that the repairs were to he done immediately after the deed was executed in August 1957. The suit was filed almost two years later after appellant had remarried and in the meantime it does not appear that the Malones made any demand on Kirkham to repair the house. Malone’s testimony on cross-examination, in explaining where he got the $2,500, is as follows:
‘ ‘ Q. Where did you get the twenty-five one-hundred dollar bills?
“A. Well, I sold the farm for part of it.
“Q. When did you sell the farm?
“A. Well, it’s been several years ago.
“Q. What did you get for the farm?
“A. Oh, I think I got about four or five thousand dollars for it.
“Q. In what year did you sell it?
“A. Well, I don’t remember.
“Q. You ought to be able to remember that, Mr. Malone.
“A. Well, I don’t though.
"Q. Was it ten years ago?
“A. No, I just don’t remember that well.
"Q. Well, you remember the amount of money, but you don’t remember the year you sold the farm?
"A. Well, I can remember the money.
“Q. Who did you sell it to then?
"A. I can’t even think of him.
‘ ‘ Q. You can think of the money, but you can’t think who you sold to? Are you sure you had a farm? What was the description of it, where was it located, in what County?
"A. About a mile or a mile and a half out of Whit-more.
"Q. What county is that?
"A. Well, I just can’t think of the name of the county.
"Q. You can’t think of the name of the County, and you can’t think of the name of the person you sold it to, and you don’t know the year you sold it. Now, who did you buy it from, then?
"A. I bought it from a man by the name of, he’s a land dealer there, I don’t believe I can recall his name.
"Q. You don’t know who you bought it from?
“A. Yes, I know who I bought it from, I can’t call his name, I forgot his name.
"Q. When did you buy it?
“A. Well, I thought I just told you I didn’t remember the exact time when I bought it.
"Q. And you saved the money all that time, and carried it around in your pocket?
"A. I didn’t say I carried it a hundred years or so, I said I had that money in my pocket, and I did, and every darn nickel of it was mine.”
On the other hand, Mrs. Malone testified that they sold the land near Whitmore in 1953, and that she had been carrying the money around with her in cash since that time. Mr. Malone had testified that he was the one who carried the money in his pocket. Mrs. Malone testified that she had no confidence in banks and that is the reason she didn’t have the money in the bank, but on the other hand she did give a check for $200 as a down payment on the place and the other $300 paid at that time she got from Kirkham’s wife, although she testified that at the time she had $3,000 in her purse in cash.
Kirkham testified that he is a professional gambler ; that he carries his money in his pocket, and when questioned on cross-examination with reference to this point he pulled out his roll and offered to let counsel for the Malones count it. He testified he let his wife have 25 one hundred dollar bills to let the Malones use in purchasing the property; that he and his wife were there at the time the property was purchased; that the deed was made to the Malones, but later at the insistence of his wife the Malones deeded the property to the Kirk-hams. He testified that he wanted to help the old people all he could; that he had no intention of taking the property away from them during their lifetime, and that in the beginning he did intend to have some repairs done on the house, but that his wife became sick with a cancer and that she was in a hospital for many months at great expense and died from the disease.
Regardless of Kirkham’s occupation, we cannot say that his testimony does not have the ring of truth; on the other hand, we are unable to say that the testimony of the Malones is so unreasonable as to be unworthy of belief. Consequently, herein lies the reason we must find that the Chancellor erred in setting aside the deed. The burden was on the appellees, as plaintiffs, to establish that the deed was given in consideration of appellants having the house repaired by clear, cogent and convincing evidence. See: Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517. This, they failed to do.
In onr body of law there have grown np a number of rules and principles governing the law of real estate which have become known as “Rules of Property.” While it may be argued that many of such rules are based upon technicalities, it is nevertheless true that these rules, and the technicalities upon which they are based, have come into existence and have been continued because of the ever present need for stability and predictability in this field of the law. Were this not the case then chaos soon would be the result and property values would diminish in direct relationship to the degree of instability existing in the law of this or any other state as it might be applied to real property. Consequently, economic and moral necessity have dictated the establishment of such rules and the technical basis of many of them. Thus it is that the maintaining of the integrity of such rules devolves upon this tribunal. The general welfare requires a continuation of the observance of such rules and may in special cases, as in the case at bar, be found to require a decision in accordance with these principles even though the Court may entertain great sympathy for individuals in a particular situation.
Since appellants in their prayer for relief ask that appellees be given a life estate in the property here involved, the case will be remanded for that purpose.
Reversed and remanded.
Holt, McFaddin, and Ward, JJ., dissent. | [
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Paul Ward, Associate Justice.
Testator gave his widow the rents and profits each year during her natural life from 80 acres of land with the remainder to go to his two sons. The sons deeded their interest to one Williams through whom such interest was acquired by the appellee, Ed Rhyne. The widow (by her guardian) filed suit to cancel the deed to appellee. Prom a decree adverse to the widow comes this appeal. There are no disputed questions of fact.
U. Gr. Waller executed Ms will in 1934 and died in 1935, leaving Ms widow Nonnie Waller and two sons, Royal Waller and Everett Waller. The deceased’s will, which was duly probated, contained this pertinent paragraph: “I hereby give and bequeath to my beloved wife Nonnie Waller, the rents and profits each year from my farm during her natural life . . . after having first paid the taxes, and upkeep of the farm. Said rents for her support and benefit. It is my will that my lands be not sold until my wife’s death. ’ ’ Paragraph 4 of the will reads: “It is my will and desire that after the death of my wife that my land be divided equally between my two sons Royal Waller, and Everett Waller, share and share alike. ’ ’
In 1938, Parker C. Craig was appointed guardian of Nonnie Waller, who was incompetent. As such guardian he executed a farm lease to J. A. Williams (who at the time was executor of U. Gr. Waller’s estate) for a period of five years. Under the terms of this lease Williams was to pay all taxes and pay $42.50 a year to the guardian for the use of the land. Later the two sons above mentioned executed a warranty deed to Williams. Thereafter Williams executed a deed and assigned the farm lease to Dimon Sparks. Sparks and his wife in turn assigned the farm lease and executed their warranty deed conveying said lands to appellee, Ed Rhyne. On April 3,1958, Rhyne and his wife executed an Oil, Gas and Mineral Lease to L. S. Youngblood, wherein Youngblood was to pay $1.00 per acre per year to Rhyne.
On August 31, 1959, Nonnie Waller, incompetent, by Parker C. Craig, Guardian, filed a complaint in equity against Ed Rhyne in which, among other things, the facts above related were set forth. The prayer was £ £ that the deed executed to Rhyne be cancelled, set aside and held for naught and that he be required to pay to the guardian, Parker C. Craig, the sum of $160 . . . ” which was the amount of rentals alleged to have been paid by Young-blood to Rhyne.
After a full hearing the chancellor refused to cancel the deed to appellee, refused to order the oil and gas rent als paid to appellant, and dismissed the complaint. We think the chancellor must be sustained.
As set forth by the chancellor, the deed to appellee in no way affects or detracts from the rights of appellant to receive the rents and proceeds from the farm which still go to the widow. Appellant’s contention that the widow alone had the right to execute the oil and gas lease on the land under the provisions, Ark. Stats. 53-302 et seq., cannot be sustained. Said statutes clearly apply to one who holds property in fee tail, which is not the position of the widow in this case. The two sons as remainder-men, had a right to convey their interest, hence no reason is shown which justifies the cancellation of the deed to appellee.
It is argued by appellant that the five year farm lease to Williams (with the option to renew) was invalid because it was not executed in accordance with the provisions of Ark. Stats. § 62-427, which limits such lease to a period of one year. As again pointed out by the Chancellor, appellant has all this time accepted the rentals without objection. Whether this constitutes a waiver or an estoppel we need not decide at this time. The reason being that appellant did not in this litigation ask for a cancellation of said lease. Neither was the lessee made a party to this suit. Likewise, the oil and gas lessee was not made party to this litigation.
The record discloses that Williams (the farm rental lessee) was the Executor of the U. G-. Waller estate at the time the lease was executed. Whether or not this fiduciary relationship affected the validity of the lease cannot be resolved at this time for the reason this was not an issue raised by the pleadings.
Our conclusion therefore is that the decree of the chancellor must be, and it is hereby affirmed, but without prejudice to further litigation relative to the above mentioned issues and parties not involved in this litigation.
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Jim Johnson, Associate Justice.
This suit arises out of a contract for the sale of land. The appellants, Luchers Vernon and Annie Vernon, a Negro couple, on December 19, 1948, entered into a contract to purchase 80 acres of farm land in Jefferson County from Mr. Ed Bost. The agreed purchase price was $6,000. Appellants paid $1,500 as a down payment and agreed to pay the balance off at $400 per year with interest at six per cent. Appellants went into possession of the lands on February 4,1949, and have remained in possession ever since and have raised a crop each year. The appellants were threatened with a foreclosure by Ed Bost in 1950 and they employed appellee, Hendrix Bowell, as their lawyer to represent them in preventing a forfeiture of their purchase contract.
In February 1955 appellee Rowell, with the approval of appellants, paid off the balance due Ed Bost from the appellants in the amount of $2,500 and took over the contract himself. In addition to the purchase money paid Ed Bost by appellee Rowell, appellants owed Rowell money previously advanced them for crop furnish, etc. This money added to the amount paid Bost totalled $3,570.71. After the purchase by appellee Rowell of the property here in question, the following letter was written by him to appellants on February 25,1955:
“Dear Luchers and Annie:
“This is to advise that with your consent I took over Ed Bost’s account this date and that you owe me a total of Thirty-five Hundred and Seventy and 71/100 ($3,570.71) Dollars with interest at 6% per annum from this date until paid.
‘ ‘ When you have paid this obligation plus all taxes and the taxes that I have to pay will carry interest at the same rate as the note. I will deed the . . . (described property) . . . in Jefferson County, Arkansas, to you and your wife, but I want it distinctly understood that the relationship between us is simply that of landlord and tenant and if you do not pay me or if you pay me one year and do not pay the next and I am forced to dispossess you, that whatever you pay will only be considered as rent.
“While the note you are giving me is a demand note and I can call it at any time, I will be reasonable with you and work with you, but I want you to thoroughly understand that you are occupying the premises at my sufferance.
“If this meets with your approval, I want you and your wife to so indicate by signing hereon below.
Tours very truly, /s/Hendrix Rowell
HR:JN
“Approved: /s/ Luchers Vernon /s/ Annie Vernon”
The above letter from appellee Rowell to appellants, which was approved by appellants, is the only written sales contract appearing in the record. There is nothing contained in this contract regarding time as being of essence. Appellee Rowell, true to his word, was reasonable with appellants and did work with them in every lenient way. In fact, he was so reasonable with them that as late as December 31, 1957, appellants had only reduced the indebtedness down to $3,100. On that date appellee Rowell wrote appellants the following letter:
“Dear Luchers:
“As requested, I hand you herewith statement of your account, showing interest figured at 6% up to January 1, 1958, at which timé you will owe me a total of $3,100 with interest at 6% from January 1,1958, until paid.
‘ ‘ This is to further notify you that if this debt has not been paid on or before December 31, 1959,1 will have to have possession of the property.
Very truly yours,
/s/ Hendrix Rowell”
Six days later appellee Rowell wrote appellants the following letter:
“Dear Luchers:
“A friend of mine and I want to talk with you about your debt and what can be done in order to get you out of debt to the Government and to me.
“Accordingly, I would like to see you in my office at 11:30 A. M. Wednesday, January 8,1958.
“Before you come to my office, go by the FHA and get the exact amount of money you owe them, so we will know what we are talking about.
Very truly yours,
/s/ Hendrix Rowell”
Appellant went by appellee Rowell’s office as requested. Appellee Rowell testified relative to the discussion which occurred at the meeting as follows:
“. . . in looking through my file I saw that letter telling him (appellant) he had two years to pay my debt, and I immediately wrote him to come in. Luehers came in . . . and I told him I wrote the letter (December 31, 1957) in error, and although ‘I want my money, you cannot be disturbed in possession until 1959, regardless of what I do, you will have two years’ free rent, two years to pay the Government, and two years to get another home.’ He said ‘I have been trying.’ I told him ‘I’m not as big as the Simmons National Bank or as big as the Government and I just can’t carry you any longer.’ I said ‘If I can get you $6,-500.00 you won’t get but $900.00. I have even answered blind ads but nobody wants your land. You have $35 or $40 acre stuff, and you have no improvements on the place, and it is cut up by two canals, and having a crop about once every five years. ’ I told him that Mr. McEntire or Judge Robinson could take him over two years free of rent, and ‘I hope during that time you will pay the Government off and get enough to move. ’ I told him the non-disturbance agreement was outstanding, and ‘if I can get somebody to pay me what I have in it, I am going to sell it. ’ He owes me $3,100.00, Uncle Sam $2,100.00, the Cousart taxes and State and County taxes. I was trying to explain if I could get $6,500.00, he would possibly have $900.00 and I said ‘I am not out for you to beat the Government, they don’t have a lien on the land, it is my land, ’ but I told him I would have to ‘ unload him ’ — I used that expression ‘ and if you can’t pay Uncle Sam, you can walk off.’ I said ‘I would rather you have it than give it to India in Foreign Aid’.”
‘ ‘ Q. When he left your office before you sold to Mr. McEntire, did you state to him you were going to sell the land?
“A. I said, ‘You are riding me.’ I told him without any question ... I gave him an hour telling him what sufferance meant. I told him ‘I am not going to have any foreclosure, I have the deed, and you are not going to get it unless you pay me; I have got to have my money ’. ”
Following this meeting in Rowell’s office, appellee Rowell conveyed the 80 acres to appellee McEntire on Jan- nary 24,1958, for the consideration of $3,350. On the same date, appellee Rowell wrote the appellants and informed them of his conveyance to Mr. McEntire and stated that ‘ ‘ the result of which is that you have forfeited all of your right of redemption, unless you can prevail upon Mr. McEntire to permit you to do so . . .” Appellants contacted the appellees about redeeming the lands to no avail and, through another lawyer, appellants tendered the balance due on the purchase price, plus interest, to the McEntires and the latter refused to accept the money or execute a deed to appellants.
The appellants filed suit on January 30,1959, for specific performance, or damages in the alternative, against J. L. McEntire and wife and also Hendrix Rowell. The cause was heard on November 10,1959, and the appellants’ complaint was dismissed with prejudice. This appeal followed :
For reversal, appellants contend that “The right of Forfeiture had been waived and specific performance should have been ordered. ’ ’
As has been stated above, the contract here in question contained nothing regarding time as being of essence. The rule relative to the inclusion of such express language in a contract is set out in White v. Page, 216 Ark. 632, 226 S. W. 2d 973, as follows: ‘ ‘ The contract in the case at bar did not state in express words ‘time is of the essence’; but our cases hold that evidence may establish such fact in the absence of a specific statement in the contract.” Even so, we think there are facts and circumstances in the present case which clearly show that time was not of the essence. One of the facts to which we refer is that on December 31, 1957, appellee Rowell wrote Luchers Vernon that he had until December 31,1959, to pay the outstanding indebtedness. This letter was followed by a conference between Vernon and Rowell and according to Rowell’s own version of what occurred in that conference, he did not by inference or otherwise indicate that he meant to declare a forfeiture immediately. According to our view, the rule applicable to the facts in the case at bar was stated by Mr. Justice Frau enthal, speaking for the Court in Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989, as follows:
‘ ‘ Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture. Ish v. Morgan, 48 Ark. 413; Quertermous v. Hatfield, 54 Ark. 16; Block v. Smith, 61 Ark. 266. But the final effect of such an agreement will depend on the actual intention of the parties, as evidenced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it will not only look into the written contract which is evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived. The following equitable principle formulated by Mr. Pomeroy has been repeatedly approved by this court: ‘If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.’ 1 Pomeroy Eq. Jur. 452; Little Rock Granite Co. v. Shall, 59 Ark. 405; Morris v. Green, 75 Ark. 410; Banks v. Bowman, 83 Ark. 524; Braddock v. England, 87 Ark. 393.”
Applying these principles to the case at bar, we find nothing in the record which would cause us to doubt in the least the veracity of appellee Rowell. In fact, appellant candidly concedes that there was no wrong doing. As stated by appellant: “Appellants wish to make it clear that there is no allegation being made of any ‘fraud or intentional imposition’ in the transaction. ’ ’ However, to the contrary we find the record relative to the indebtedness owed by appellant to be replete with acts and unmistakable indications of leniency and benevolence. Even so, based on onr prior decisions, we have no choice but to find that herein lies appellee’s as well as the trial court’s error. As is true in many cases of waiver, appellee Rowell’s own goodness to appellants was his own undoing under the law since such acts and indications constituted waiver.
Having thus concluded, it necessarily follows that the decree is reversed and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Harris, C. J., and McPaddin, J., dissent. | [
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J. Seaborn Holt, Associate Justice.
This is an unemployment compensation case. The appellant, Southwestern Bell Telephone Company, employed Mrs. Ouida It. Mills during August of 1953 as a telephone operator in West Memphis exchange of the company. In 1956 Mrs. Mills requested a pregnancy leave which was made effective on July 29, 1956 and under standard company policy, its termination date was fixed at July 28, 1957, one year later. At the time Mrs. Mills applied for a pregnancy leave, she expressed her desire to return to work about two months after the anticipated date of birth of her child; however, she was advised in writing on her leave application that there probably would not be a place for her, due to dial conversion.
The evidence in the record disclosed that the terms and conditions of the type of pregnancy leave granted by the appellant are a matter of company policy, and not union contract. Under this policy, pregnancy leaves are always for a period of one year. There is no assurance of re-employment at the end of the leave. However, if the employee, after the birth of her child, is able and willing to work before the expiration of the one-year term of leave, and if a suitable vacancy exists, Southwestern Bell does, on some occasions, reinstate employees before the expiration of the full year’s period.
Mrs. Mills’ child was born on September 26, 1956. On or about October 31, 1956, Mrs. Mills contacted the chief operator at the West Memphis exchange about the possibility of resuming work, but was informed that no vacancy existed at that time. She contacted the chief operator again within two weeks and was told there would be no work for three or four more months.
On December 5, 1956, Mrs. Mills applied for unemployment benefits at the West Memphis office of the Employment Security Division, stating that she had been on a leave of absence from Southwestern Bell and that she had not been rehired. Upon being notified about the filing of the claim, the company challenged Mrs. Mills’ eligibility on the grounds that she was on a pregnancy leave of absence which was not to terminate until July 28, 1957, and taking the position that she was therefore covered by the provisions of Ark. Stats., § 81-1106 (e) (2) [hereinafter set out].
The local office of the Employment Security Division, at West Memphis, made a determination in favor of the claimant stating:
“While it may be company policy to grant a year’s leave of absence in such cases, it is believed that this is a maximum duration rather than a blanket rule for all cases. It does not seem that the claimant should be penalized by being without work, or unemployment benefits for a full year period, merely because the company set duration of her leave at one year. . . . the Arkansas law provides that a female, separated for pregnancy shall not be disqualified, if she re-applies for work at the end of her leave of absence. It is our interpretation that this is to mean that a female who is separated because of pregnancy, after securing a leave of absence, shall not be disqualified if she re-applies for work as soon as she is again physically able to work, and her leave has not already expired. In this ease, her leave has not expired, and we believe she meets eligibility requirements. ’ ’
The decision of the local employment office was appealed by the employer and hearings were held in West Memphis and in Little Rock by a Referee of the Appeals Tribunal. The Referee reached the same conclusion as the local employment offiee, holding that Mrs. Mills had separated from her employment under “non-disqualifying circumstances,” and concluding that her unemployment subsequent to December 5, 1956 was the result of a lack of work in the West Memphis exchange, and that such lack of work was created primarily by the conversion of the exchange to a dial system.
The decision of the Appeals Tribunal was then appealed by Southwestern Bell to the Arkansas Board of Review. No new evidence of any material consequence was taken by the Board although it was brought out that the claimant ultimately was reinstated by Southwestern Bell in her old job when a vacancy occurred in April of 1957. The Board of Review, after reviewing the record made before the Appeals Tribunal, affirmed the decision of the Appeals Referee and adopted it as its own, both as to findings of fact and conclusions of law. Southwestern Bell then filed for a Petition for Review by the Pulaski Circuit Court, as provided by law. After oral argument from counsel, and briefs, the Circuit Court affirmed the Board of Review and from that judgment comes this appeal. In issue are the unemployment benefits of the claimant from December 5, 1956, when she applied for them, till her reinstatement on April 21, 1957.
For reversal, Southwestern Bell, appellant, relies on the following points: (1) There was no leave of absence within the meaning of the statute and (2) if there were a leave of absence it had not terminated as of December 5, 1956, when Mrs. Mills was declared eligible for unemployment benefits.
As to the first point we have reached the conclusion that there was a leave of absence. Our Employment Security Act contains no definition of “leave of absence” so we are left to the language of the contract between the parties, prior conduct and dealing by the company with employees, and any other relevant facts at hand to determine if a leave of absence existed.
There are several factors which go to show that a leave of absence existed. One is the contract of employment which provides:
" Leave of Absence. Insofar as the requirements of the service will permit, leaves of absence for good cause, and of reasonable length, will be granted upon request. The intention of the employee with respect to return to work shall be established in writing between the employee and the company at the time the leave is granted, and a copy shall be furnished the employee at the time the leave is granted.”
A second document is exhibited in the record entitled “Southwestern Bell Telephone Company Leave of Absence.” This document states that Mrs. Mills was granted a leave of absence because of pregnancy and that the employee, Mrs. Mills, understands that due to dial conversion there probably will not be a place for her at the time this leave of absence expires. A further note on the document states that leaves of absence do not carry any guarantee of employment. However, the record reflects that employees on leave of absence for pregnancy were nearly always hired back and often before the termination of the company set policy of one year. An additional factor is that the testimony shows that valuable seniority benefits of the employee were not lost if she was granted a leave of absence rather than quitting because of pregnancy. Under the peculiar facts of this case we feel compelled to find that there was a leave of absence granted the employee. It is argued by the appellant that a leave of absence connotes a continuity of the employment status, Bowers v. American Bridge Company, 43 N. J. Super. 48, 127 A. 2d 580 and cases there cited, and since the alleged leave of absence agreement contained no guarantee of re-employment, it was not in fact a leave of absence. We agree that in ordinary cases a leave of absence connotes a continuity of the employment status. We think the facts and surrounding circumstances in the present case indicate that Southwestern Bell and Mrs. Mills planned to continue the employment status at the time of her separation despite a printed provision of the contract that there was no guarantee of re-employment. Otherwise we can conceive of no other reasonable explanation of the acts of the company in writing a provision on leave of absence in the contract of employment, in giving a formal document entitled “Leave of Absence” when it was requested, in preserving the seniority rights of the employee, and in frequently reinstating the employees before the termination of the leave of absence, and in the present case, of reinstating Mrs. Mills three months before her leave of absence was to expire.
As to the second point, we agree with the appellant that the leave of absence had not terminated as of December 5, 1956 when Mrs. Mills was declared eligible for unemployment benefits. Upon this point some legislative history is helpful. The availability of women for work after pregnancy has been particularly troublesome in the administration of Employment Security Acts. As a result, states began to devise and enact special statutory tests applicable to women who leave their jobs due to pregnancy. At least 33 states have such provisions in their unemployment compensation laws. U. S. Dept. of Labor, Comparison of State Unemployment Insurance Laws, January 1, 1958, page 103: There are two general types of tests. (1) The woman is disqualified for an arbitrary number of weeks before and after the birth; or (2) she is presumed to be unavailable and hence ineligible for unemployment benefits after the birth until she has secured new work and has earned either a stipulated amount of wages, or has worked for a specified minimum period of days or weeks. Arkansas has this latter type. See Ark. Stats., § 81-1106 (e)(2) requiring thirty days of new work. In 1955, the Arkansas General Assembly amended § 81-1106 (e)(2) by providing that the thirty days new work test should not apply to an individual who had obtained a leave of absence from her employer for pregnancy and applies for reinstatement with her employer at the termination of such leave but is not reinstated by such employer. Or stated another way, a person who has a leave of absence for pregnancy does not have to secure thirty days of new work if she is not rehired, in order to receive benefits.
With this in mind, we need only look at the terms of the statute to come to a decision on the second point. Ark. Stats., § 81-1106 (e)(2) provides:
“If a female claimant is separated from her customary occupation because of pregnancy: Such disqualification shall continue until she has not less than 30 days of paid work subsequent to date of confinement. Provided this provision shall not apply to an individual who has obtained a leave of absence from her. employer for the above reason and applies for reinstatement with her employer at the termination of such leave but is not reinstated by such employer.”
The statute says termination of such leave. In the present case, Mrs. Mills secured a leave of absence on July 29, 1956, at which time she was approximately seven months pregnant. The termination date of her leave was set at July 28, 1957, one year later. Mrs. Mills’ child was born on September 26, 1956. About October 31, 1956, she applied for reinstatement which was denied and on December 5, 1956, she was declared eligible for unemployment compensation. At the time she was declared eligible, her leave of absence still had over seven months to run. Since her leave of absence had not terminated, it was error for the Commissioner to declare her eligible for benefits. The Commissioner argues that the year’s leave of absence is an unreasonable length of time. Under the present circumstances, we do not think so. The present policy of the company of one year leave of absence for pregnancy was set up long before enactment of the Employment Security Act as a practical solution to a recurring employee problem and not as a guise to avoid unemployment payments. We cannot say that a year’s time is unreasonable when all the attendant circumstances of giving birth to a child and caring for it the first few months after birth are taken into consideration.
Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Harris, C. J., and Robinson, J., dissent. | [
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Paul Ward, Associate Justice.
On August 26, 1957 appellant, G-. E. Cobbs, filed a Complaint in Ejectment against appellees, Marvin E. Speights and wife, alleging that he was the owner of certain lots in the Town of Smackover and tracing his title thereto through conveyances from two successive predecessors dating back to 1946. It was further alleged that appellees had unlawfully erected and were wrongfully maintaining a fence on his land over his repeated demands for possession. The prayer was that appellees be evicted.
To the above Complaint appellees filed a general Demurrer, which the trial court treated as a motion to make more definite and certain and granted appellant twenty days to comply.
On November 5, 1957 appellant filed an Amended and Substituted Complaint to which appellees filed an Answer containing a general denial on January 8, 1958. On January 13, 1958 appellant filed a Motion to Strike said Answer because it was not filed in the time allowed by statute. The trial court overruled this motion and ordered appellees to file further defensive pleadings within thirty days.
On February 17, 1958 appellees filed an Answer alleging seven years adverse possession, and also asked that appellant’s Complaint be dismissed. To that pleading appellant filed a Motion to Dismiss on the ground that it was not filed within the statutory time or within the time allowed by the trial court. Later appellant filed a Motion for Judgment and for a Finding of Facts and Declarations of Law, whereupon appellees filed an Amended and Substituted Answer. On August 20, 1959 appellant filed a Motion to Strike the above mentioned pleadings and the trial court again overruled appellant’s Motion.
On September 5, 1959 appellant filed a Petition for Judgment on the Pleadings which the trial court once more overruled.
It will be noted from the above that at no time did the trial court dismiss appellant’s Complaint or cause of action, nor was appellant prevented from proceeding to a final decision on the merits. In other words the trial court made no final order from which an appeal will lie to this Court. The law in this respect was well settled in the case of Arkansas State Board of Architects v. Larsen, 226 Ark. 536, 291 S. W. 2d 269, and the numerous decisions cited therein.
In view of the above the appeal must he dismissed as premature.
Appeal dismissed. | [
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Carleton Harris, Chief Justice.
This is the second appeal of this case. See Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226. The original judgment was reversed, and the cause remanded, because of an abstract instruction given. On re-trial, the jury returned a verdict in favor of appellee, Oma Lee Cox, for $8,000, and for the appellee, J. C. Cox, Jr., the sum of $625. From the judgment so entered, appellant brings this appeal.
A brief resume of the facts show that on November 16, 1957, Oma Lee Cox, a young lady sixteen years of age, was living a short distance from Curtis Junction in Clark County, Arkansas. Miss Cox was a senior in high school, and worked on Saturdays and holidays at a department store in Arkadelphia. She generally would catch a bus to that city, but on occasion had ridden with a neighbor, Gr. W. Harkrider, who also was employed in Arkadelphia. On the aforementioned date, she was given a ride by appellant in his 1952 Chevrolet pickup truck. They proceeded on U. S. Highway 67, where traffic was heavy; there was an extremely dense fog, testimony establishing that visibility was limited to a distance of fifty to one hundred feet. In attempting to overtake and pass a cattle truck, which was proceeding in front of him at approximately 40 miles per hour, Harkrider moved to the left side of the highway, and collided with an oncoming vehicle. Miss Cox suffered serious injuries, and through her father as next friend, instituted suit against appellant. Mr. Cox sought recovery individually for hospital, medical, and nursing bills, and loss of services of his daughter. On trial, the amounts, hereinbefore mentioned, were awarded.
For reversal, appellant relies upon seven points, the first being a contention that the evidence was not sufficient to sustain a finding of willful and wanton disregard on the part of Harkrider. This point was thoroughly and fully discussed in the opinion of March 2, 1959, including a full recitation of the events leading up to, and including, the collision. The court concluded its discussion on this point by stating “the rule is, that when fair-minded men might differ, then the question is one for the jury”, and held that a jury question was made as to whether Harkrider was guilty of willful and wanton negligence. The proof in the present case, relating to the collision, was practically the same as in the first trial, no less substantial, and no additional reasons or arguments are made which are persuasive of an erroneous holding.
Next, appellant complains of certain instructions given by the court (3, 4, 5, 6, 7, 11, 12, 13, 14 and 14%). Instruction No. 3 defines “proximate cause”; No. 4 defines “ordinary care”; No. 5, “negligence”; No. 6, “contributory negligence”; and No. 7, “gross negligence”. These instructions correctly defined the terms involved, but appellant argues that the instructions led the jury to believe that appellees were entitled to recover on a showing of mere negligence, or negligence less than the willful and wanton degree. We disagree. As stated in Pinkerton v. Davis, 212 Ark. 796, 207 S. W. 2d 742:
“"When all the instructions are thus considered we cannot say that they incorrectly presented the law, or that the jury could have been misled thereby.”
In Instruction No. 8, the court defined “willful and wanton negligence”. Such instruction was as follows:
‘ ‘ To operate an automobile in willful and wanton disregard of the rights of others is a course of conduct which involves deliberate, intentional or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom. It is greater than gross negligence.
To be willfully negligent, one must be conscious of his conduct, and, although having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury.”
In Instruction No. 18, the court instructed the jury as follows:
“It is agreed by the parties hereto that Oma Lee Cox was a guest in the pickup truck operated by the defendant Harkrider. Our law provides that no person transported as a guest shall have a cause of action against the operator unless the vehicle was willfully and wantonly operated in disregard of the rights of others.
Therefore, before Oma Lee Cox can recover in this case, she must establish by a preponderance of the evidence that her injuries received in this upset were due to some act or acts of willful and wanton misconduct on the part of her host, the defendant, Harkrider.”
The jury therefore, was plainly told that recovery was predicated upon willful and wanton misconduct or disregard on the part of Harkrider, and this requirement was reiterated in Instructions 19 and 20. The latter reads as follows:
“You are told that even though you believe from a preponderance of the evidence that the defendant driver was guilty of gross negligence in the operation of his vehicle — that degree of negligence would not of itself entitle plaintiff Oma Lee Cox to recover. Oma Lee Cox must go further and show by a preponderance of the evidence that Harkrider persisted in a course of conduct which to the knowledge of an ordinarily prudent person would naturally or probably result in injury.”
Appellant’s contention is held to be without merit.
Instruction No. 11 told the jury that they could not speculate on the issue of negligence or any degree thereof. Appellant states:
“Willful and wanton disregard has often been described by this Court as greater than any degree of negligence. Therefore, this instruction concerning negligence and degrees thereof is abstract law, misleading, and erroneous. We are not dealing with negligence or any degree thereof. We are dealing with willful or wanton misconduct.”
We do not agree that willful and wanton disregard or misconduct is an area, or field, of law entirely distinct and apart from negligence. Our previous opinion several times mentions “willful and wanton negligence”. “Willful and wanton negligence” and “willful and wanton disregard” are synonymous in meaning, and as stated in the previous paragraph, the court properly instructed the jury in this regard.
Instructions 12, 13, 14, and 14% all deal with ‘ ‘ rules of the road”, and were proper instructions. Appellant states:
‘ ‘ The jury should have been advised, in accordance with defendant’s request, in each rule-of-the-road instruction, that plaintiff would not be entitled to recover unless the jury found that the defendant was guilty of willful and wanton disregard for the consequences of his acts when violating any rule of the road.”
We reiterate that the “willful or wanton” feature was covered in the instructions heretofore set out. The same is true with regard to appellant’s Eequested Instruction No. 1.
Finally, appellant argues that the judgment for the benefit of Oma Lee Cox was excessive. The testimony on this point reflected that she was hospitalized for seven days after the accident ; after returning home, she stayed in bed most of the time for a week, and returned to school after about two weeks; that she constantly complained of pain in her head and back; she has been very nervous since the accident, and is upset by riding in an automobile; that she has headaches for three or four days at a time. Mr. Cox testified that Oma Lee was unconscious from Saturday morning until Tuesday morning, and further testimony reflected that the girl received cuts on her forehead, across her nose, over the eye, on each side of her jaw, and on her tongue. Mrs. Cox, the mother, testified that her daughter’s legs were “swollen clear over her shoes”, and that Oma was not able to help with household work; that the daughter is unusually nervous, and will “cry about anything”; two teeth were chipped and capped. Dr. Charles D. Yohe of Hot Springs, a psychiatrist, testified that he examined Miss Cox on two occasions (July 15, 1959, and September 21, 1959). The witness stated that on the first occasion he held a general exploratory interview, and gave a neurological examination. He also gave the Bender-Gestaldt test. On the second occasion, he gave the StanfordBinet, the Revised Stanford-Binet, and the Rorschach test. The witness stated that on her first occasion, Miss Cox was pleasant and cooperative, but had little to say. “She was rather empty, vapid * * * her responses to most any question or subject were inadequate, apathetic, disinterested, et cetera. She didn’t seem to grasp adequately most of the subjects brought up.” He stated that the Bender-Gestaldt test was highly suggestive of organic brain damage, and the additional testing was subsequently performed. The doctor then testified: “It is quite apparent from the findings I have here that there is definite organic brain damage, and that her intelligence is at present that of a moron; that her mental capacity and intelligence has been reduced to 74.” He then explained that IQ test scores of 50 to 75 are generally referred to as scores of a moron, and that general intelligence is in the area of from 90 to 100. Further, “it also could be stated that the pattern of her test scores were those typical for organic deterioration of intelli gence. By that I mean it is very suggestive that once her intelligence was higher, and that it has been reduced to its present level.” Dr. Yohe then stated that, in his opinion, this was a permanent condition, but if there should be any change, “it would be in a downward direction, rather than in an upward direction.” The doctor was firmly of that view, despite the fact that on cross-examination, it was developed that the young lady’s school grades were substantially the same after the accident, as before. He testified that injuries producing several days of unconsciousness are very often associated with permanent reduction in intelligence. The witness stated that it was fortunate that Miss Cox had already had considerable education prior to the accident, because, in his opinion, her peak of education has been reached. Based on information that he had obtained concerning the mentality of Miss Cox, prior to the collision, including an IQ test given the young lady sometime during the year preceding the crash (wherein she made a score of 96), it was the opinion of Dr. Yohe that the injuries sustained in the wreck were the cause of the reduction in mental capacity.
Dr. William I. Porter, a neurosurgeon of Little Bock, testified that he could find nothing abnormal about Miss Cox’s legs or hands, and found no evidence of any brain damage. He further stated that he could not detect any gross deficits in her mental function, and considered her alert and cooperative. He found nothing to indicate that the girl was a moron, though admittedly, he did not give the tests referred to. The doctor was obviously of the opinion that some of the tests were of little value in determining whether one had suffered a brain injury. He found no evidence of injury to the spinal cord or nerves, but did mention the scars which Miss Cox had shown the jury. Dr. Porter indicated that these might be “smoothed out” by careful plastic surgery. He testified that she did receive a severe cut on her tongue, but that the tongue had healed, and was not, in any manner, deformed. The doctor was unable to say whether the headaches complained of could be traced to the injuries received in the collision, but did state that lie found no nerve or tissue damage to the brain, and was of the opinion that Orna Lee received no permanent injury to the brain at the time of the collision.
It is not for us to say which diagnosis was correct. That question was properly one to be considered by the jury. As was stated in Arkansas Power and Light Company v. Mart, 188 Ark. 202, 65 S. W. 2d 39:
“It is contended also that the verdict of the jury is excessive. The evidence is in conflict as to the extent of appellee’s injuries. The jury may have believed the evidence of appellee’s witnesses, and, if so, it was justified in returning the verdict it did. This was a question of fact which was the province of the jury to determine, and as we have many times said, although we might not agree with the jury, yet if there was any substantial evidence to sustain its verdict, we are not authorized to disturb it. In other words, the jury is the judge of the facts, and we cannot substitute our judgment of the facts for the judgment of the jury.”
Likewise, we have, on innumerable occasions, held that in determining the sufficiency of the evidence to support a verdict, such evidence must be viewed, with every reasonable inference arising therefrom, in the light most favorable to appellee. Missouri-Pacific Railroad Company v. Dotson, 195 Ark. 286, 111 S. W. 2d 566. The evidence on behalf of appellee, if believed by the jury, was sufficient to sustain the verdict.
Finding no reversible error, the judgment is affirmed.
On December 8,1958, this Court reversed and dismissed the judgment obtained by appellee in the trial court, holding there was no substantial evidence in the record to establish wanton and willful' negligence. On March 2, 1959, a rehearing was granted, the opinion of December 8th withdrawn, and a substituted opinion filed, wherein the judgment in the trial court was reversed and the case remanded.
The judgment given in the first trial was $3,000. Appellant makes no argument that the present judgment in favor of the father, in the amount of $625, was excessive. | [
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Ed. F. McFaddin, Associate Justice.
This appeal must be dismissed because the case is now moot.
On July 25, 1960 the employees of Baldor Electric Company (represented by Local Union No. 700 IBEW) went on strike; and the Baldor plant was picketed. When Baldor rented office space in the First National Bank Building in Fort Smith and undertook an employment campaign, the bank building was picketed. On August 11, 1960 the First National Bank of Fort Smith applied to the Sebastian Chancery Court and obtained an injunction against the picketing of the bank building. On the same day Baldor Electric Company applied to the Sebastian Chancery Court and obtained an injunction which, under certain circumstances, enjoined picketing at the Baldor plant. The defendants in the two chancery cases were the officers and representatives of the Local Union whose members were on strike; and they are the appellants in this Court. From the order of the Sebastian Chancery Court granting a temporary injunction in each of the cases, there were immediate appeals to this Court; and on August 12, 1960, while the Court was in recess, one of the Justices made an order which stayed in whole or in part the Chancery Court injunctions until the cases could be heard by the entire Court. On September 12, 1960, this Court, being reconvened, entered an order continuing the temporary stay until the causes were reached on the merits; and that time has now arrived.
But since the appeal to this Court on August 12, 1960 events have transpired which render this appeal moot. On September 5, 1960, by stipulation of all parties, the appeal of the First National Bank was dismissed ; and now, upon submission of the Baldor Electric ease, it is conceded that the strike has been settled. The appellant’s brief contains the following paragraph:
“While this case was pending on appeal the labor dispute existing between Baldor Electric Company and the members of Local Union No. 700 terminated and the pickets have been voluntarily withdrawn from the employer’s premises.”
The quoted statement is not denied; so our holding in Local Union No. 656 v. Mo. Pac. R. R. Co., 221 Ark. 509, 254 S. W. 2d 62, is ruling here. In that case there was an injunction against picketing in a labor dispute and while the appeal was pending in this Court the strike was settled. In dismissing the appeal as moot, we said:
“It is alleged, and the appellants concede, that the strike against Dixie Cup has now been settled. Thus there is no longer any occasion for picketing or any controversy between the parties to this appeal. In these circumstances neither an affirmance nor a reversal of the decree would have any practical effect except as it might affect the matter of court costs, which is not alone a sufficient issue to call for a decision in an otherwise moot case. Quellmalz Lbr. & Mfg. Co. v. Day, 132 Ark. 469, 201 S. W. 125. We think the case at bar falls within the rule announced in Kays v. Boyd, 145 Ark. 303, 224 S. W. 617: ‘It is the duty of this court to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon abstract propositions or to declare principles of law which cannot affect the matter in issue in the case at bar.’ ”
It, therefore, follows that this case has become moot and the orders heretofore made are set aside, and the appeal is dismissed at the cost of the appellants. | [
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Paul Ward, Associate Justice.
This is a Workmen’s Compensation case which calls for an interpretation of Arkansas Statutes § 81-1314(a) (6), in order to determine which of the two insurance carriers (either appellant or appellee) is legally bound to pay the claimant if and when it is later determined that he has a permanent partial disability caused by an occupational disease. There is very little, if any, dispute over the essential facts.
Monte D. Cotner was employed by the Eastern Metal Products Company (hereafter sometimes referred to as “Eastern”) on July 9, 1956 and worked for the same company continuously, with the exceptions hereinafter noted, until June 27, 1958 when he was discharged for violating a company rule. It is important to note that appellant, Employers Liability Assurance Corporation, Ltd., was the Compensation insurance carrier at the time Cotner began work and continued as the carrier until November 14, 1956 at 12:01 A.M., and also that on the last mentioned date and hour the appellee, Employers Mutual Liability Insurance Company, became the Compensation insurance carrier. It is conceded that Cotner became affected with dermatitis during the time that he worked for Eastern and that dermatitis is classified as an occupational disease.
When Cotner made application for compensation benefits on the ground that he was totally partially disabled it was agreed by all parties that first there would be a determination of which insurance carrier would be liable if permanent partial disability were found to exist. That is, it was agreed by all parties that the question of liability for permanent partial disability would be postponed until it was first determined which carrier would be liabile if liability is finally established. Upon the latter issue a hearing was had before the referee who fixed liability on appellant. This determination was affirmed by the Workmen’s Compensation Commission and also by the Circuit Court. From the judgment of the Circuit Court appellant prosecutes this appeal.
The answer to the question here presented depends upon the interpretation given to the statute heretofore referred to. This statute, in all material parts, reads as follows:
“Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the carrier, if any, on the risk when such employee was last injuriously exposed under such employer, shall be liable therefor . . .” (Emphasis supplied.)
Stated very simply the question is: When was Cotner last injuriously exposed? It is undisputed that Cotner became affected with dermatitis prior to November 14, 1956, but the troublesome question is was he injuriously exposed after that time. In order to determine the question it is necessary to examine carefully the testi mony relative to Ms exposures. In substance tbe record shows the following: Cotner became affected with dermatitis by reason of having been exposed to a “ degreaser” wMch contains certain oils which in turn caused a rash to break out on Ms limbs and Ms body. He began working on July 9, 1956 but was not exposed to the “degreaser” until sometime in early October. Something like ten days after Cotner was exposed he noticed a body rash, and on October 11th he was examined by Dr. Lockwood. The doctor in his written reports stated that Cotner had contracted dermatitis but that no permanent defect would result and that there was no disability. Cotner continued to work but he was still bothered with the rash and on November 6, 1956 he was examined by Dr. Glenn who was of the opinion that Cotner was sensitive to the degreasing solution used in the “degreaser”; Dr. Glenn next saw Cotner on November 14, 1956 when he found that Cotner’s condition was considerably improved and that he had no disability. Up until this time Cotner had continued to work steadily. After November 13, 1956 the record shows that on November 14, 1956 Cotner worked in the polishing and buffing department and that on November 15, 1956 he was transferred to the “basket line” where he worked for two or three days and where he was exposed to the degreasing solution, he became worse on November 18, 1956 and was sent to the hospital on November 18, 1956; on November 24, 1956 Cotner was discharged from the hospital and on the 28th day of the same month he went back to work and continued to work until December 14, 1956 when the plant shut down and Cotner was laid off for a while. On January 15, 1957 Dr. Glenn who had examined Cotner several times examined Cotner and found that he was “healed” and was dismissed from the treatment but advised to avoid the degreasing solution. About a week later, January 21, 1957, Cotner returned to work and soon had a recurrence of the rash; on January 31, 1957 Dr. Glenn saw Cotner and referred him to Dr. Shirmer. Cotner continued to work at the same place until June 27, 1958 when he was discharged for violating a company rule.
Keeping in mind that neither of the two insurance carriers involved will be liable unless it is later established that Cotner has been permanently partially disabled, it seems to follow that the judgment of the trial court must be reversed. Although it may be conceded .that Cotner became affected with dermatitis prior to November 14,1956, there is no evidence that he was permanently affected. On the other hand the evidence is all to the effect (as heretofore set out) that he was not permanently affected. Therefore, the only logical conclusion deducible is that, if the claimant is later found to be permanently affected, he became so after November 14th. All authorities appear in agreement that the date of the first recognized appearance of symptoms of an occupational disease does not necessarily coincide with the date of the last “injurious exposure”. In some instances, we can conceive, the dates might coincide but this fact would have to be shown by competent evidence — a thing that was not done in the case before us. Any other view, it seems to us, would have to be based on the assumption that an occupational disease (dermatitis in this instance) is an incurable disease and that the first injurious exposure always results in a permanent disability. If that were the case, however, then Section 81-1314(a) (6) would be unintelligible because it speaks of a last injurious exposure. If there can be a last exposure then there can also be a first exposure. The case of Textileather Corp. v. Great American Indemnity Co., 108 N. J. L. 121, 156 A. 840, recognized that an occupational or industrial disease is not always permanent or incurable by the statement that “Sometimes a patient makes a complete recovery, sometimes it is only an apparent one.”
Most authorities seem to agree that the date which determines liability is not the date when the symptoms of the disease first appear but rather the date when some kind of disablement (such as cessation from work) occurs.
In Underwriters at Lloyd’s, London v. Alaska Industrial Board, (D. C. Alaska), 160 F. Supp. 248, the Court used this language: “In occupational disease cases there is generally a long period of exposure without any disability and the date of contraction of the disease is not ascertainable. Therefore, there has been difficulty in determining the moment when an employer and insurer become liable. The solutions which have been worked out are discussed by Larson in the second volume of his Workmen’s Compensation Law. Section 95.21 says that most frequently liability is assigned to the carrier who was on the risk when the disease resulted in disability, if the employment at the time of disability was of a kind contributing to the disease.” (Emphasis supplied.) In the case of Masco v. Barnett Foundry & Machine Co., 53 N. J. Super. 414, 147 A. 2d 579, where the Court had under consideration the question similar to the one here presented, it is stated: “. . . full liability for permanent disability (fastens) upon that insurer which was on the risk at the time the employee ceased work, absolving any prior insurers regardless of the extremity of progression of the disease, short of cessation of work . . .” In that case the Court assigned the reason for so holding in saying that: “Because the development of occupational diseases is characteristically gradual, but variable in different diseases and with different persons, the earlier stages being frequently undetectable, the only rule which would insure the benevolent legislature objective of recovery in every meritorious case was one which would fix liability at the single and easily determinable point when there was inability to work or death. ’ ’ (Emphasis supplied.)
In the case under consideration it is admitted that Cotner lost no time from work prior to November 14, 1956 when appellant ceased to be the insurance carrier. It is also admitted that after said date Cotner worked for Eastern, that he was exposed to the degreasing solution, and that for the first time he quit work and went to the hospital.
Appellee contends that the case of Hixson Coal Co. v. Furstenberg, 225 Ark. 568, 284 S. W. 2d 120, is authority for the affirmance of the judgment of the trial court, hut we do not agree. Our attention is directed to the circumstance that the claimant contracted silicosis in that case while in the employment of Hixson but that his disability did not commence until he was working for a subsequent employer. This is true but it also appears from a careful reading of that case that the claimant was not ‘ ‘ exposed” during his subsequent employment to anything that would cause silicosis. It further appears from the Hixson opinion that the claimant not only suffered symptoms of silicosis while he was in the employment of Hixson but that “he was bothered with breathlessness; it progressed to such an extent that he could not walk out of the Hixson Mine without resting, and finally got to the point that it became necessary to ride out, being unable to walk.” The opinion further reflects that the claimant had formerly made a statement in 1949 to the effect that he was compelled to terminate his employment with the Hixson Company due to the fact that his physical condition had progressed to a point where he was unable to perform his work. As we read the Hixson case, supra, therefore, we construe it to confirm rather than refute the conclusion which we have heretofore reached.
From the above it follows that the judgment of the trial court must be, and it is hereby, .reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded. | [
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Darrell Hickman, Justice.
William Terry Cecil was convicted by a Washington County jury of ten violations of The Arkansas hot check law, Ark. Stat. Ann. § 67-719, et seq. (Supp. 1983), and sentenced to eight years imprisonment. He makes two arguments on appeal. First, he argues that the law is unconstitutionally vague and, second, that the trial court refused to properly instruct the jury that one must have the “purpose” to defraud instead of an “intent” to defraud.
The first argument will not be considered because it was not raised before the trial court. Cain v. Arkansas State Podiatry Examining Board, 275 Ark. 100, 628 S.W.2d 295 (1980); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). The second argument we find meritless.
The trial court properly used Arkansas Model Criminal Instructions, specifically, AMCI3601, in this case to instruct the jury. We have held that the trial court should use such instructions unless explicit reasons are given for not doing so. Per curiam order of January 29, 1979, 264 Ark. 967. The relevant portion of the instruction given is as follows:
Second: That as to each of the 10 described checks above, the defendant, William Cecil, knew at the time he made or drew or uttered or delivered the check that there were not sufficient funds on deposit with the bank for payment in full of the checks and all other outstanding checks against such funds;
Third: That William Cecil made or drew or uttered or delivered the particular checks with intent to defraud.
If you find that the defendant, William Terry Cecil, made or drew or delivered or uttered the checks and that William Cecil had no account with the bank when the check was made or drawn or delivered or uttered, then you may consider that fact along with all of the other evidence in the case in determining whether William Cecil intended that the check or checks would not be honored and that he had the intent to defraud.
The appellant’s argument is that the phrase “intent to defraud” is the very kind of vague and confusing phrase the new criminal code was designed to abolish, by using instead such words as “purposely” and “knowingly” to describe criminal intent. The argument ignores that the hot check law is not and never was a part of the criminal code, and the phrase “intent to defraud” used in this case was properly explained to the jury in the instruction given. Therefore, the court did not commit error in refusing to make the substitution requested.
Affirmed. | [
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Steele Hays, Justice.
The appellant, Larry Jack Nation, brings this appeal from the revocation of three suspended sentences. He argues two points for reversal, neither of which has merit.
Nation, in two separate appearances in the Cross County Circuit Court, entered guilty pleas to a total of three counts of theft and burglary before Judge Henry Wilkinson. On both occasions, Judge Wilkinson suspended imposition of the sentences, informing appellant of the possible range of sentences he could receive should he violate the conditions of probation. On October 13, 1983, the state filed a motion to revoke the suspensions, alleging a breach of the written conditions of probation in that appellant had committed the offense of theft of property. Judge Harvey Yates of the Cross County Circuit Court presided at the revocation hearing, found that appellant had violated the conditions of his probation and imposed a sentence of forty years.
Appellant first argues that Judge Yates was without jurisdiction to hear the revocation proceeding, citing Ark. Stat. Ann. § 41-1209 (2), which provides in pertinent part:
(2) A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time not to exceed 60 days after the defendant’s arrest. . . .
Appellant argues that “court” in the italicized portion means “judge,” and therefore, Judge Yates, although in the same circuit court as the judge who suspended imposition of the sentences, was without jurisdiction to revoke the suspensions granted by the judge of another division. Appellant argues that knowledge of the circumstances of the underlying offense is important as the offender is punished on revocation not for the instant misconduct but for the original act. Hence, the requirement that the hearing be conducted by the same court would logically imply that it be by the same judge. This point was not raised below, and unless it is a question of subject matter jurisdiction, cannot be raised on appeal. The appellant is mistaken in his implication that it is such a question.
Appellant cites no authority for the rationale of his interpretation of § 41-1209, and the argument is not convincing. There is ample authority that jurisdiction is granted to a particular position and not to the individual who fills it and that judges of different divisions within a circuit have commutable authority. Arkansas Constitution Article 7 § 21 (election by attorneys of special judges for circuit courts when for various reasons the sitting judge is not available); Ark. Stats. Ann. § 22-322.11, 12, § 22-324.2, 4, § 22-333.25 (power of circuit judges to try cases in either or any division of the circuit court and to reassign cases from one division to another); Gardner v. State, 252 Ark. 828, 481 S.W.2d 342 (1972) (recognition of Ark. Stat. Ann. § 22-322.12 as permitting trial judges to transfer cases either civil or criminal from one division to another). As this is not a question of subject matter jurisdiction and was not raised below, the appellant has waived his right to raise it at this time. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).
On his second point for reversal appellant argues that A.R.Cr.P. Rule 24.6, requiring inquiry by the judge into the factual basis of the plea, was not complied with when appellant entered the guilty pleas to his prior charges. The state maintains that such an objection cannot be properly raised at a revocation hearing, but we need not address that argument for as the state correctly points out the objection was not raised below in any case, and appellant therefore has waived his right to present it on appeal. McGee, Id.
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Steele Hays, Justice.
This appeal presents the question of what constitutes a previous filing of the same suit between the same parties in the face of a motion to dismiss the complaint pursuant to ARCP 12(b)(8) .
The action began as a claim under an accidental death insurance policy by the appellees, Charles and Doris Cory, parents and beneficiaries of the deceased, against Mark Twain Life Insurance Corporation, appellant. The suit was first filed on January 20, 1980 in Pulaski Circuit Court. Under the assumption that proper venue was in Saline County, the suit was voluntarily dismissed and refiled in Saline Circuit Court on February 29, 1980. The issue of venue was raised by appellant’s response, stating that under Ark. Stat. Ann. § 66-32 34 , venue was proper where the insured died or resided, which was Pulaski County. Appellees determined that there was no procedure in civil law for a change of venue and recognized that under ARCP 41 , a second dismissal would be an adjudication on the merits, in the absence of an agreement of both parties. Appellees were not able to get such an agreement from the appellant, so they permitted the case to remain on the Saline County docket and refiled in Pulaski County. The appellant moved to have the case dismissed under ARCP 12(b)(8) due to the pendency of the same action in Saline County. The judge denied the motion and the case went to trial, resulting in a verdict in favor of the appellees on the policy. On this appeal, we reverse.
Appellant’s argument that another suit pending under ARCP 12(b)(8) requires dismissal is countered by three basic contentions from appellees: 1) The suit in Saline County was not pending because it was never properly commenced pursuant to ARCP 3 that requires the complaint to be filed with the clerk of the proper court; 2) no valid judgment could be rendered against appellant in Saline County, thus no ground existed for the contention that a prior action was pending; and 3) appellant waived its defense under ARCP 12(b)(8) by claiming Saline County was not the proper venue. Appellees’ first two points are interrelated and will be addressed together.
Appellees’ assertion that the suit was not properly commenced and that under some circumstances lack of proper venue will invalidate a judgment is not without substance, but the facts of this case dictate a different conclusion. The rule appellees rely on provides:
The rule that a second action may not be abated when the first court lacks jurisdiction is properly applied only where, because of defective process or the institution of the first action in a court having no jurisdiction of the cause of action, or other like reason on which the validity of the proceeding depends, the first proceeding is void on its face, or so defective on its face that a legal recovery cannot be had therein. 1 Am. Jur. 2d Abatement, Survival, Revival § 16.
However, it is the general rule that a judgent is not invalidated if tried in an improper county unless there is something in the statute to indicate that its requirements are jurisdictional. 77 Am. Jur. 2d, Venue § 45. While jurisdiction is the power and authority of the court to act, venue is the place where the power to adjudicate is to be exercised. Requirements of venue are grounded in convenience to the litigants and venue is a procedural question, not a jurisdictional one. 77 Am. Jur. 2d Venue § 1; 92 C.J.S. Venue § 75 and see Ozark Supply Co. v. Glass, 261 Ark. 750, 552 S.W.2d 1 (1977). There are instances where venue will go to subject matter jurisdiction, as in local actions, see Bruce v. Street, 206 Ark. 1013, 178 S.W.2d 489 (1944) or to personal jurisdiction, see Universal C.I.T. Credit Corp. v. Troutt, 235 Ark. 238, 357 S.W.2d 507 (1962). In those cases where venue goes to the jurisdiction of the person, absent an objection to venue, a court has the power to render a judgment binding on the parties. See Gland-O-Lac v. Creekmore, 230 Ark. 919, 327 S.W.2d 558 (1959). In contrast, venue in § 66-3234 clearly does not confer any jurisdiction as in the above cases, but is grounded in the convenience of the litigants, in this instance, policy decisions dictating the convenience of the plaintiff and not the defendant. See generally Ozark Supply Co., supra. We therefore can find no grounds to hold that a valid judgment could not have been rendered on the suit filed in Saline County.
Appellees also submit the appellant has waived its right to claim that another action is pending in view of its response to the Saline County suit, that venue was improper — that its positions are inconsistent. However, were we to accept appellees’ premise, it would undermine much of the utility of Rule 12(b)(8) and Rule 41. If the defendant raises the defense of the pendency of another action and estoppel or waiver is found, the defendant could lose both ways. Through estoppel or waiver the original suit could be held not pending because of the nature of certain legitimate defenses claimed by the defendant, as in this case. Thus, the pendency defense would lose its force and defendants would be helpless to make use of Rule 41. If the original suit is held pending, the defendant could be estopped from raising certain. defenses in the first action because he claimed a "proper” suit was pending in that court. As might be expected, this issue has not been widely discussed, but in Jernigan v. Rainer Mercantile, 211 Ala. 220, 100 So.2d 142 (1924) the court found the same problems in the appellees’ argument as we do here. In that case, the defendant raised the defense that the plaintiff was a dissolved corporation without capacity to sue. Before further action was taken in the suit, another was filed by the plaintiff and the defendant filed a plea of the pendency of the first suit, and the second suit was dismissed. The first suit being subsequently called, plaintiff objected to the defendant’s plea of plaintiff’s incapacity to sue. The defendant’s demurrer was overruled and the cause went to judgment and the defendant appealed from that ruling. The Supreme Court reversed and stated in part:
Counsel for appellee argue upon the assumption that defendant’s plea in the second suit of the pendency of another suit between the same parties concerning the same subject matter, acknowledged the effectiveness of the former suit. To this, however, we do not agree. The plea of the pendency of a former suit rests upon the principle of discouraging multiplicity of suits and protecting the defendant from double vexation from the same cause. Such a plea does not involve the inquiry as to whether the prior suit is capable of being prosecuted to a successful issue if resisted by the defendant. . . The considerations which underlie the doctrine . . . take no account of the puissance of, or the want of it in the former action ... It is the pendency of two suits for the same cause . . . the law deems vexatious and discountenances.
If Rule 12(b)(8) is to have any meaning, we find on the facts in this case that another case was pending and the trial court had no choice but to dismiss the appellees’ complaint. The case is reversed and remanded for disposition in the trial court in accordance with this opinion.
Turtle and Hollingsworth, JJ., dissent.
ARCP 12. Defenses and Objections, (b) How Presented.
Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (8) pendency of another action between the same parties arising out of the same transaction or occurrence.
§ 66-3234. Suits against insurers — Venue.
(1) An action brought in the State by or in behalf of the insured or beneficiary against an insurer as to a loss occurring or benefits or rights provided under an insurance policy or annuity contract shall be brought in either: (a) The county in which the loss occurred, or the insured died (in the case of life insurance), or (b) The county of the insured’s residence at the time of the loss or death.
ARCP -41. Dismissal of Actions (a) Voluntary Dismissal: Effect Thereof.
Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court, provided, however, that such dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice. In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding to trial on his claim although the plaintiff may have dismissed his action. | [
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Per Curiam.
Petitioner Harvey Dale Jones and co-defendant Rickey Moore were each found guilty by a jury of two counts of aggravated robbery and one count of attempted capital murder. Each man was sentenced to terms of 15 years imprisonment on each count of aggravated robbery and 13 years for attempted capital murder. On appeal, we reversed the convictions for attempted capital murder but affirmed the convictions for aggravated robbery. Moore & Jones v. State, 280 Ark. 222, 656 S.W.2d 698 (1983). Petitioner Jones now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37. [Moore filed a separate postconviction petition which was recently denied by this Court. CR 83-52 (September 17, 1984).]
Petitioner alleges that the witnesses at his trial were unable to identify him conclusively and that they gave conflicting, inconsistent testimony regarding their identification of him. The allegations are essentially an attack on the sufficiency of the evidence adduced at trial. As such, the assertions are not grounds for relief under Rule 37. Challenges to the weight of the evidence are direct attacks on the judgment which must be made at trial and on direct appeal, not in a petition for postconviction relief. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983).
Petitioner next alleges that his trial counsel was ineffective for failing to “attempt or to direct cross-examine state witness Lonetta Chism.” Since petitioner does not say what counsel should have asked the witness, we cannot assess whether there was any prejudice to him. Petitioner also alleges that counsel had a conflict of interest, but he again fails to explain the nature of the conflict or how he was prejudiced by it. Allegations without factual support and a showing of prej udice do not warrant an evidentiary hearing. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983).
With this petition we are also considering petitioner’s attempt to appeal the deniál of a Rule 37 petition by the trial court. In May, 1984, after his conviction had been affirmed on appeal, petitioner filed a postconviction petition in circuit court. The petition was denied pursuant to Rule 37.2(a) which provides that once a case has been appealed, no proceeding under the rule shall be entertained by the circuit court without prior permission of this Court. We find that the trial court was correct in its conclusion that it had no jurisdiction to consider the Rule 37 petition once the case was appealed; therefore, the appeal, CR84-165, is dismissed. Coston v. State, 283 Ark. 155, 671 S.W.2d 738 (1984).
Petition denied; appeal dismissed. | [
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Robert H. Dudley, Justice.
The single issue on appeal is whether a corporation organized under the Rural Development Authority Act has the authority to exercise the power of eminent domain for the purpose of acquiring, constructing and equipping a multi-use water supply lake.
The Columbia County Quorum Court approved Amended Ordinance No. 83-1, which recited that the county’s water supply wells for residential and industrial use were being depleted and called for an election to determine whether to adopt a 1% sales and use tax within the county in order to construct a multi-use water supply lake. The voters approved the tax and the cities of Magnolia, Taylor, Waldo, Emerson and McNeil entered into an agreement with Columbia County to pool the money collected from the tax to finance the project. The stated purpose of the interlocal agreement is to provide for a multi-use water supply and recreation lake. The Columbia County Quorum Court subsequently passed Ordinance No. 83-3 which provided for the creation of the appellant corporation, the Columbia County Rural Development Authority.
The appellant contends that it has the power of eminent domain as set forth in Ark. Stat. Ann. § 35-401, since it will supply water to the contracting cities. The appellees are landowners within the area covered by the proposed lake site. The City of Magnolia was allowed to intervene.
The trial court held that appellant did not have the power of eminent domain to acquire the land in question for a multi-use water supply lake. We reverse. Jurisdiction is in this court under Rule 29 (1) (c).
Our Rule on the authority to exercise eminent domain is clear:
Statutes which relate to the power of eminent domain should be strictly construed in favor of the landowner largely because they are in derogation of the common right. This rule is particularly applicable where there is an alleged delegation of power. As a result of strict construction, the power itself must be clearly expressed by the statute or necessarily implied ###
City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30 (1958).
Since 1895, corporations organized for the purpose of supplying water to municipalities clearly have had authority to exercise the power of eminent domain. Ark. Stat. Ann., Title 35, Chapter 4 (Repl. 1962). The rationale behind the legislation is that supplying water to municipalities meets a public purpose. Constitutionally, pri vate property can be taken under the power of eminent domain only for a public use. See City of Little Rock v. Raines, 241 Ark. 1071 at 1083, 411 S.W.2d 486 (1967).
In 1.963 the Rural Development Authority Act was passed. Ark. Stat. Ann. Title 20, Chapter 14 (Repl. 1968). Section 20-1403 (a) of this act provides for the formation of public corporations which are authorized to acquire real property for private use as well as public use. An example of private use is the authorization to acquire small farms and consolidate them into adequate farming units. Ark. Stat. Ann. § 20-1403(g)(2)(b). An example of public use is the authorization to build reservoirs and water works for community purposes. Thus, the original Rural Development Authority Act included the power of eminent domain for private use, making the act constitutionally suspect. By Act 75 of 1967 the power of eminent domain was removed from the Rural Development Authority Act. By this action the General Assembly deleted the power of eminent domain when it was based solely upon the type of corporation which sought to exercise the power. It is important to note, however, that the General Assembly left intact the 1895 statute, § 35-401, which authorizes the power of eminent domain to any corporation organized for the specific purpose of supplying water to municipalities. The legislative intent was to stop the delegation of the power of eminent domain based upon the type of entity formed and base it instead upon the purpose served. Similarly, while neither the Arkansas Business Corporation Act nor the Arkansas Nonprofit Corporation Act confer any inherent power of eminent domain upon corporations created thereunder, such corporations may acquire the power as a result of the purpose served. To illustrate, Ark. Stat. Ann. § 35-210 confers the power of eminent domain on any type of corporation providing telephone and telegraph services, Ark. Stat. Ann. § 35-301 confers the power on a corporation providing electricity. Ark. Stat. Ann. § 35-601 confers the power on companies which develop or convey petroleum or natural gas.
We hold that the corporation formed under provisions of the Rural Development Authority Act and organized for the purpose of supplying water to municipalities has the power of eminent domain. The remaining issue is whether this multi-use water supply project is “organized for the purpose of supplying any town .... with water.” See Ark. Stat. Ann. § 35-401.
It is undisputed that the primary purpose of this project is to supply the municipalities of Magnolia, Taylor, Waldo, Emerson and McNeil with water. The initial county ordinance, 83-1, recites that the water supply in the county is by wells, that those wells are being depleted and that a water supply lake is needed as a new source of water. The ordinance also provides that a decision on the location of the proposed lake site is to be made solely on the basis of suitability for public water supply purposes. The City of Magnolia was allowed to intervene upon its contention that the corporation was acting on behalf of the city in an effort to construct a water supply lake. Selwyn Whitehead, the chairman of the Magnolia Water Commission, testified that the project is for a much needed water supply. Walker Moore, the Mayor of Magnolia, testified that the project is for water supply.
The proposed large lake will obviously provide incidental benefits, such as flood control and recreation, but the only proof is that the main purpose of the project is for water supply to the municipalities. We hold that the corporation was organized for the purpose of supplying water to the municipalities and, for that purpose, has the power of eminent domain.
Reversed.
Hickman, J., and Hollingsworth, J., dissent. | [
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George Rose Smith, Justice.
In early September, 1984, the appellees, Lodge 7 of the Fraternal Order of Police and some of its members, presented to the City Clerk of Little Rock separate initiative petitions to place two salary-related measures on the ballot for the November 6 general election. After the Clerk determined that the petitions did not have the required number of valid signatures, the appellees filed additional petitions with more signatures. The Clerk then found the number of signatures sufficient, but she refused to certify the measures to the county election commission because the city attorney doubted the validity of the proposed measures.
The Fraternal Order sought review in the chancery court, as provided by Amendment 7 to the Constitution of 1874. The appellants (the City and some of its officers) resisted the chancery complaint on the ground that the proposed measures would be invalid, if approved. The chancellor accepted the Clerk’s finding of sufficient signatures, but he refused to order her to certify the measures, on the ground that a chancery court cannot issue writs of mandamus. The appellees countered by filing a suit for mandamus in the circuit court. There the matter was quickly tried on its merits. The court found that the City had improperly exercised its authority and issued the writ of mandamus. The City’s two appeals have been consolidated for decision in this court. Our jurisdiction includes election cases. Rule 29 (1) (g).
At the outset the appellees argue that we should permit the measures to be placed on the ballot without first determining their validity. Certainly it is true that a party who resists an initiated petition on grounds such as insufficiency of signatures or improper ballot title is not required to question the validity of the proposed measure. On the other hand, that question may be considered and decided when it is properly raised, even before the election. Proctor v. Hammans, 277 Ark. 247, 640 S.W.2d 800 (1982); Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912).
Here the matter is one of public interest. The validity of the proposed measures was challenged in the trial courts by the City, the real party in interest. The cases were heard in two courts, with the parties having an opportunity to present their proof. The consolidated cases have been fully briefed in this court. Except for certain matters to be explained later in this opinion, we perceive no reason why our decision should be deferred. To the contrary, it is desirable that as far as possible the questions should be set at rest, to avoid useless expenditures of time and money in campaigns for and against a measure which would be invalid even if approved by the electorate.
Both measures involve the salaries of the city police. Negotiations between the City and the Lodge for an increase in salary were at a standstill when the parties agreed to submit the issue to an arbitrator, Joe Woodward, whose decision would concededly not be binding on either party. Woodward had not reached his decision when the first petitions were filed in early September.
One measure, the “fact-finder” ordinance, relates only to the pending dispute. That measure provides that all patrolmen and sergeants will receive a pay increase “in the amount as recommended by the Fact Finder, Mr. J. Woodward, now considering the facts presented before him by the City of Little Rock and the Fraternal Order of Police.” The other measure, the “binding-arbitration” ordinance, is a permanent measure providing a procedure by which any future wage controversy not resolved by agreement is to be referred to an arbitration panel whose decision will be final, binding all parties and not reviewable by any court. It is specifically provided that the city’s board of directors will be required to carry out the arbitration panel’s determination.
First, the binding-arbitration ordinance. The basic defect in this ordinance lies in the rule of law, twice stated in the Constitution, that no municipal corporation shall be authorized to pass any law contrary to the general laws of the state. Ark. Const., Art. 12 § 4, and Amendment 7. It is provided by state law that a city’s legislative body is to fix the number and salaries of its policemen and firemen. Ark. Stat. Ann. § 19-1617 (Repl. 1980). It is fundamental that a city’s legislative power cannot be delegated to a committee or an administrative body. City of Harrison v. Snyder, 217 Ark. 528, 231 S.W. 2d 95 (1950). Nor can the city directors delegate or bargain away their legislative authority. In holding that a city cannot be compelled to bargain collectively with its employees, we have said:
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. [Emphasis supplied.] Several aspects of the matter were discusséd in the Wichita case [194 Kan. 2, 397 P. 2d 357 (1964)], 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.
City of Fort Smith v. Council No. 38, AFL-CIO, 245 Ark. 409, 433 S.W.2d 153 (1968).
As we have noted, the Initiative and Referendum Amendment itself provides that “no local legislation shall be enacted contrary to the Constitution or any general law of the State.” Since state law prohibits a city from abdicating or delegating its legislative power to fix its employees’ pay, that result cannot be accomplished by an initiated ordinance. Hence the binding-arbitration ordinance would be invalid even if approved by the voters. (We add that the appellees cite six out-of-state cases upholding binding arbitration agreements, but each decision was based on a statute permitting that procedure. We have no similar statute.)
The issues are not equally clear as to the fact-finder ordinance. The burden of proof was on the City, for Amendment 7 provides: “In the event of legal proceedings to prevent giving legal effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.” Amendment 7, subsection Amendment of Petition.
As we have seen, the first batch of petitions for the fact-finder ordinance proposed a pay increase in the amount to be recommended by Woodward. After those petitions, with an insufficient number of valid signatures, had been filed, Woodward announced a non-binding recommendation of a 7 1/2% increase. Additional petitions were then filed to supply the deficiency in the number of signatures. The only one of those petitions introduced in evidence, however, contains a revised proposal by which all patrolmen and sergeants “are hereby given a 10% increase in yearly salary.” That was not Woodward’s recommendation.
When an initiated petition consists of several parts, as here, all the parts constitute one petition and must be considered together. Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72 (1935). In the case at bar, however, there is a conflict in that some parts of the petition refer to the increase recommended by Woodward, which proved to be 7 1/2%, while other parts refer to a 10% increase. The facts have not been sufficiently developed to show what the City Clerk, in response to the writ of mandamus, has certified or may certify to the County Election Commission as the correct ballot title.
With the record in such a state of uncertainty we are not justified in holding absolutely that the fact-finder ordinance should not be on the ballot in any form. Consequently we affirm the circuit court’s issuance of the writ of mandamus with respect to the fact-finder ordinance, but we express no opinion about the effect of that writ.
The circuit court judgment is affirmed in part and reversed in part. An immediate mandate is ordered, directing that the binding-arbitration ordinance not be submitted to the electorate, or, to the extent that such a directive may be too late to be effective, that the votes not be counted or considered. The chancery decree is affirmed.
Hubbell, C.J., and Hollingsworth, J., not participating. | [
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Per Curiam.
In March, 1981, petitioner pleaded guilty to aggravated robbery, in the Circuit Court of Randolph County. He was sentenced as an habitual offender to 20 years imprisonment. The court also revoked petitioner’s suspended sentences in four other cases. Later in 1981, petitioner filed a petition to proceed pursuant to Criminal Procedure Rule 37 and an amended petition. The petition and amended petition were denied after an evidentiary hearing. We affirmed. Virgin v. State, CR 81-134 (April 29, 1982).
Petitioner subsequently filed numerous pro se petitions in circuit court, all of which raised grounds for postconviction relief. The exact number of the petitions is not contained in the record. The State moved in November, 1983, to dismiss the petitions, citing A.R.Cr.P. Rule 37.2 which provides that all grounds for relief must be raised in the original or amended petition. The motion to dismiss was granted on November 16, 1983, and petitioner filed a timely notice of appeal. He also asked to be declared indigent so that the record could be prepared at public expense.
Because of the number of petitions involved, the trial court appointed an attorney to review the files. It appears that counsel was not appointed to handle the appeal but only to sort out the file and report to the Court. Petitioner continued to represent himself, and there is nothing to indicate that he was led to believe that the attorney was appointed to take over the appeal.
While the practice of appointing attorneys to review files may benefit the trial court, it is not a good practice to appoint counsel for a limited purpose, unless it is made clear to the appellant that counsel’s duties are limited. If there is any possibility that the appellant may be misled, the court must notify him of the appointment, setting out clearly the obligation of the attorney to the court and to the appellant. In the event that appellant is not fully informed of the limited appointment and can establish that he was led to rely on counsel to perfect the appeal, we must hold counsel responsible for taking whatever steps are necessary to protect the appellant’s best interests.
Counsel here reported that petitioner was seeking to appeal the order to dismiss and that the record should be limited to items concerning the order and should not include the pro se petitions filed after the original petition was denied. He also petitioned the court to declare petitioner indigent. In June, 1984, well after the time for filing the record had elapsed, the trial court found petitioner indigent and ordered the record prepared, limiting it to items pertinent to the order to dismiss.
The rules of appellate procedure require that a record be filed within 90 days of the date of notice of appeal, making the record in petitioner’s case due on March 5, 1984. The latest the record could have been timely filed even, with extensions of time from the trial court was seven months from the date of judgment, which was June 16, 1984. Ark. R. App. P. Rule 5 (b). The record was not tendered until September 6; hence, the pro se motion for rule on the clerk now before us.
Without regard to the merits of the appeal which we do not consider now, we find good cause to permit the record to be filed. It is clear that petitioner attempted to comply with the rules of appellate procedure. Since the untimely tender of the record was not caused by any fault on his part, the motion is granted.
Motion granted. | [
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Steele hays, Justice.
Russell Watkins, appellee, recovered a judgment in the trial court for injuries sustained when his pickup truck was struck by a tractor-trailer driven by appellant, Jacky Harris, and owned by appellant, Frozen Food Express, Inc.
Watkins had been asked by a neighbor, Ray Price, to follow him from Forrest City to Blytheville to help move some furniture. East of Crowley’s Ridge they encountered fog. Price started weaving and stopped diagonally in the highway with his left front wheel over the mid-line. Watkins testified he pulled off on the shoulder and got out of his car to see about Price. He went to Price’s side of the car and found him too sick to move. Watkins heard a truck skidding and ran to the shoulder where he was struck, evidently by his own truck, sustaining the injuries complained of. Price avoided the collision by driving forward just as the tractor-trailer skidded into Watkins’ truck.
The jury awarded Watkins $125,000 and apportioned fault at 25% to Price and 75% to Harris and Frozen Foods. Harris, Frozen Foods and the administrator of Price’s estate have appealed. Five points for reversal are made. We affirm the judgment.
I
Appellants contend the evidence does not support the jury’s failure to assign any negligence to Watkins. Noting that any evidence does not equate with substantial evidence [citing Arkansas State Highway Commission v. Covert, 232 Ark. 463, 338 S.W.2d 196 (1960)], they submit that if Watkins was parked on the pavement of the highway in a fog he was guilty of some negligence when an adequate shoulder was available. There was evidence to the effect that Watkins’ truck was parked in the right hand lane of the highway: Harris so testified, an investigating officer said Watkins told him that; an expert witness called by Watkins acknowledged that possibility; and debris and skid marks gave some support to the proposition. The evidence on that score would doubtless have supported such a finding, even so, it was not conclusive. Watkins testified that his vehicle was on the shoulder and some physical evidence supported him; we cannot say his version of the collision was an impossibility. Granted, an abridgment of the proof renders that premise more plausible, but the jury hears the witnesses in person and in detail, and observes proof not readily available to us. There were, for example, numerous photographs of the accident scene and the vehicles which are not reproduced in the briefs. We make no attempt to summarize the proof pro and con, as we need only consider the evidence favorable to Watkins. In that light we cannot say substantial evidence was lacking. Hayes v. Farm Bureau Mutual Insurance Co., 11 Ark. App. 289, 669 S.W.2d 511 (1984); St. Paul Fire and Marine Insurance Co. v. Protho, 266 Ark. 1020, 590 S.W.2d 35 (1979).
II
Appellants contend the size of the verdict is not sup ported by substantial evidence and is so excessive as to shock the conscience. They recognize the jury’s verdict will ordinarily not be disturbed on appeal unless wholly without support in the evidence, or may be said to be the result of passion or prej udice, or to shock the conscience or a sense of justice. Bradley v. Hendrix, 251 Ark. 733, 474 S.W.2d 677 (1972); Arkansas Amusement Corporation v. Ward, 204 Ark. 130, 1616 S. W. 2d 178 (1942).
Watkins’ injuries included four broken ribs, a collapsed lung and a concussion. He was hospitalized for twenty-eight days. There is no indication of residual impairment and no loss of earnings. His medical expenses totaled $6,103.84, in addition to property damage of $3,035.00. Watkins and other witnesses testified to a great deal of pain during and following his hospitalization and he continued to have pain four years later at the time of the trial. He relies on tranquilizers and has an inability to sleep. Watkins’ wife attested to his suffering since the accident.
Finding a point at which damages cease being merely high and become so excessive as to require intervention is a particularily difficult task with little guidance to be found. In the end, the jury’s assessment of the measure to be given the elements of a verdict is perhaps as good a guide as any. Here pain and suffering seem to have been the principal constituent, but we cannot say the proof fails to support the amount awarded, given our tradition of permitting the jury to determine the appropriate amount. This verdict is higher than might ordinarily be expected, but not much else can be said about it. Finding no hint of passion, prejudice or other improper influence we believe the verdict must stand. Arkansas State Highway Commission v. Muswick Cigar and Beverage Company, 231 Ark. 265, 329 S.W. 2d 173 (1959).
Ill
Appellants claim it was an abuse of discretion to permit witness Larry Williams to testify as a reconstruction expert. Appellants do not especially challenge Williams’ credentials as an expert, rather they argue that his conclusions are faulty. Williams’ testimony for the most part involved an opinion as to the speed of the Harris truck and which of its tires left skid marks.
Prior to the enactment of the Uniform Rules of Evidence our cases looked with disfavor on reconstruction of accidents by expert testimony. But we have liberalized that position somewhat since the URE. We need look no further than two recent cases: B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d (1984) and Smith and Vaughn v. Davis, 281 Ark. 122, 663 S.W.2d 165 (1983). In Byers, we defined the current status of that rule:
Counsel’s objection, that Arkansas case law does not permit any reconstruction of an accident, was not accurate. In Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971), we adhered to our earlier position that attempts to reconstruct traffic accidents by means of expert testimony “are viewed with disfavor,” but we nevertheless held that expert testimony was necessary in that case for an understanding by the jurors of the physical dynamics and causal relationships involved in the accident. Again, in Wright v. Flagg, 256 Ark. 495, 508 S. W. 2d 742 (1974), we sustained the trial judge’s exclusion of a witness’s faulty attempt to reconstruct the accident, but we recognized the existence of exceptions to the broad exclusion of such testimony.
In this case the dynamics of the collision were complex. The tractor-trailer had jackknifed and there was a dispute as to which of its tires produced the skid marks, a material factor. One of the three drivers, Price, had died and Watkins was able to offer very little explanation as to how the collision occurred. To say that expert testimony was unnecessary to enable the jury to understand the forces and causal relationships involved, would be going further than we are willing to go. The trial court determined that the testimony should have been received and no abuse of discretion occurred. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980).
IV
Appellants contend there was no proof to warrant giving AMI 616 on rescue:
A person acting under stress in response to humanitarian impulses, in attempting to rescue another who reasonably appears to be in danger of substantial injury or loss of life, is not chargeable with negligence because his conduct may now appear to have been unwise, unless his conduct was rash and reckless. He is required to use only that degree of care a reasonably careful person would use under the same or similar circumstances.
Whether [Watkins] was acting under such stress and whether he used the degree of care required of him is for you to decide.
Appellants argue that Ray Price did not need to be rescued and since he died some three months after the collision, there is no explanation for why he stopped on the highway. We do not find such an absence of proof that we can say reversible error occurred in giving the instruction. Whether Price needed assistance is not known but the surrounding circumstances were such that Watkins may have thought so, and the reasonableness of that assumption was properly submitted to the jury. Price was almost eighty years old, he had high blood pressure and was under medical care. One purpose for the trip was to see a Blytheville physician. Most significantly of all, after weaving from side to side he completely stqpped his car, partially blocking both lanes of the interstate in a dense fog, a precarious position by any estimation.
V
Instruction No. 17 told the jury [in accordance with Ark. Stat. Ann. § 75-647 (Repl. 1979)] that no one should stop or park on the paved portion of the highway, but should leave an unobstructed width of highway for the passage of other vehicles, the parked vehicle to be visible for two hundred feet in either direction..
Appellant objects because the trial judge did not include the second part of § 75-647 which states that a driver who violates the statute shall be liable for any damages which proximately result from such violation. But Instruction No. 17 conformed exactly to AMI 903 explaining the four statutes covered by the proof and informed the jury that a violation of one or more of those statutes was evidence of negligence. The jury was properly instructed.
To have included the omitted part of § 75-647 would have emphasized that statute over the others, and would have told the jury in effect it should return a verdict for Harris and Frozen Foods irrespective of other elements of the proof. The omitted part was in conflict with AMI 903, as well as with AMI 616, the rescue instruction, and undoubtedly would have confused the jury. It was not error to give the instruction in accordance with AMI 903 rather than as requested by appellants. Oliver v. Fletcher, 239 Ark. 724, 393 S.W.2d 775 (1965); Capitol Old Line Insurance Company v. Goundy, 1 Ark. App. 14 (1981).
The judgment is affirmed.
Ray Price died some three months after the collision. | [
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George Rose Smith, Justice.
On January 19,1983, the appellant obtained an $87,831.75 default judgment against the appellee, upon the appellee’s failure to file a timely response to a writ of garnishment issued upon a judgment the appellant had obtained against C.C. Gladden. On motion the trial judge set aside the default judgment upon a finding of unavoidable casualty. ARCP Rule 60 (c) (7). Our jurisdiction of this appeal from the final judgment in the matter is under Rule 29 (1) (c). We affirm.
The facts are not in dispute, the appellant having offered no testimony at the hearing on the motion to set aside the default judgment. The appellee is a Mississippi company that franchises many convenience stores in several states. When one of its officers, Jerry Summerford, received the writ of garnishment on January 3, 1983, from the company’s Arkansas agent for service, Summerford mistakenly thought a response was due 20 days from that date instead of from December 28, when service had been had. Summerford telephoned the appellant’s attorney on January 3 and explained that there might be some difficulty in filing an answer by the due date. The attorney replied: “Don’t worry. File it whenever you obtain the information.”
The attorney nevertheless had a default judgment entered on January 19, two days after the answer had been due. On January 20 Summerford’s assistant wrote to the attorney, explaining that the judgment debtor, Gladden, owned a one-third interest in a DeQueen store that the appellee was leasing for $750 a month. The letter ended: “We trust this will be of help to you. Please advise if you should have any further questions. ’ ’ It was noted that a copy of the letter was being sent to the circuit clerk who had issued the writ of garnishment.
Upon receiving the appellee’s letter on January 21, the appellant’s attorney did not inform Summerford that a default judgment had been taken two days earlier. Instead, the attorney apparently did nothing until the expiration of the 90-day period allowed by ARCP Rule 60 (b) for modification of a judgment. A writ of execution was then obtained against the appellee, resulting in its petition to set aside the default.
The trial judge was right in granting relief from the default. At the very least there was a misunderstanding about whether the appellee’s time for answering had been extended by agreement. That brings the case within our holding in Martin v. Martin, 241 Ark. 9, 405 S.W. 2d 934 (1966), where we said:
Where an attorney’s failure to resist an application for a default judgment is attributable not to any fault on his part but to a misunderstanding between counsel, there is such an unavoidable casualty that the judgment should be vacated, even after the expiration of the term. Kochtitsky & Johnson v. Malvern Gravel Co., 192 Ark. 523, 92 S.W. 2d 385 (1936).
The appellant also argues that the appellee did not plead or prove a valid defense to the default judgment, as required by ARCP Rule 60 (d). That argument, raised for the first time on appeal, cannot be sustained. Summerford’s testimony, introduced without objection, supported the trial judge’s finding that the appellee owed Gladden only $250, one third of one month’s rent. The appellant was awarded a judgment in that amount. If the appellant thought that Summerford’s testimony was not as precise as it might have been, such an objection should have been made when the omission could have been readily corrected. Heard v. State, 272 Ark. 140, 612 S.W. 2d 312 (1981).
Affirmed.
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Per Curiam.
Appellant, Walter B. Mason, by his attorney, David L. Gibbons, has filed a motion for rule on the clerk.
The motion admits that the transcript of the case was not timely filed and it was no fault of the appellant. The appellant’s former attorney, Ralph Lowe, admitted by affidavit attached to the motion that the transcript was filed late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Darrell Hickman, Justice.
Brian Todd was convicted of several felonies in connection with the burglary of Triple T Foods, a food processing plant in Rogers, Arkansas. Todd worked there until he and three of his fellow workers were fired for smoking marijuana in November of 1981. Todd and Jason Jackson, who was fired with him, broke into the plant on November 30, 1981. Using a torch, they opened and robbed the candy, soft drink and money changing machines. The police learned of Todd’s involvement when they interrogated Jackson after Todd had implicated Jackson in a separate burglary. Jackson confessed to the Triple T Foods burglary in return for a grant of immunity in that case. Charges were filed against Todd on July 1, 1983.
Todd makes two arguments on appeal: (1) the prosecuting attorney used his subpoena power after charges were filed to interrogate witnesses for trial — a use of the power not authorized by law; and (2) the trial court was wrong in allowing a witness to rebut an express or implied charge of recent fabrication by testifying about another witness’ prior consistent statement. Both arguments must fail.
Essentially, the appellant’s first argument is that the statutory power of a prosecuting attorney to subpoena witnesses is the same as the subpoena power of a grand jury: that is, it is limited to investigation and cannot be used once the investigation ceases and charges are filed. The power of subpoena was granted to prosecuting attorneys after the Arkansas Constitution was amended to allow prosecutors to file charges by information. See Ark. Const. Amend. XXI and Act 160 of 1937. Before that time, charges had to be filed by a grand jury. After the passage of the amendment, grand juries met less frequently and the prosecutor supplanted the grand jury to a certain degree. Taylor v. State, 220 Ark. 953, 251 S.W.2d 588 (1952). The subpoena power was granted to aid prosecutors in investigating charges and preparing for trial. There is no doubt that the subpoena power may be used after charges are filed. See Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). This does not mean that the subpoena power cannot be abused. For example, in Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980), it could not be used to allow state policemen to coerce witnesses to appear for interrogation. Neither can witnesses be compelled by the use of the prosecutor’s subpoena to appear in a county other than where the alleged offense occured. State v. Stell, 254 Ark. 656, 495 S.W. 2d 846 (1973). Inadmissible testimony cannot be obtained by subpoena power. Taylor v. State, supra. A witness subpoenaed has the right to have an attorney present during questioning. Gill v. State, 242 Ark. 797, 416 S.W.2d 269 (1967). A prosecuting attorney cannot use the power to stage a pretrial show of evidence with all the witnesses present. Cook v. State, supra.
All of these cases, however, recognize the right to use the prosecutor’s subpoena to prepare criminal cases. Indeed, the emergency clause of Act 160 of 1937 specifically provides that. See also J. Hall, The Prosecutor’s Subpoena Power, 33 Ark. L. Rev. 122 (1979). We do not hesitate to hold that, in the absence of an abuse of the power, a prosecutor’s subpoena may be used to prepare for trial after charges have been filed. We find no abuse in this case.
The appellant raises a due process argument concerning the subpoena power, but it was not raised below, and we do not address it. See Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984).
The other issue concerns Unif. R. Evid. 801 (d) (1) (ii), which states:
(d) Statements Which are Not Hearsay. A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, ....
The trial court allowed the state to call a police officer to testify that one of the state’s key witnesses, Jackie Alberding, had made prior statements consistent with her testimony at trial. He also testified to the content of her first statement. Ordinarily, evidence of prior consistent statements is not admissible to bolster credibility because it is hearsay. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). But Rule 801 (d) (1) (ii) provides an exception to that rule where there has been a charge of recent fabrication or improper influence. There was such a charge in this case, and we hold that the trial court ruled correctly.
Jackie Alberding was located by the state just before trial and was subpoenaed for interrogation. She made at least three statements. She was first questioned alone. Then Jason Jackson was brought in, and they were allowed to discuss the case. She made another statement with Todd’s attorney present. All of the statements were consistent and the police officer, who was present for all the statements, was allowed to testify to that fact.
Alberding’s testimony was crucial because she testified that Todd and Jackson planned the burglary at her apartment and asked to borrow some pantyhose to use in the burglary. When she later learned of the burglary, she said that she knew Todd and Jackson had done it. She said Todd came by with money he had taken, some of which was burned by the torch, and that he left a coin box from one of the machines at her house.
When Alberding was cross-examined at trial, a number of questions by the defense attorney implied that her version was the result of being questioned with Jackson. He, in fact, asked her whether she had told him they were both there to get their “story straight.” Without reciting all the cross-examination, and it was extensive, it is fair to say that the trial court was correct in concluding that the defense was implying that Alberding had fabricated her statement after speaking with. Jackson. This is exactly the situation contemplated by Rule 801(d)(l)(ii) since the prior consistent statement that the officer testified to was taken before Alberding was questioned with Jackson. See Kitchen v. State, supra. Therefore, we find no error.
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Thomas L. Cashion, Special Justice.
Appellant filed a taxpayer’s suit for a declaratory judgment to keep the City of North Little Rock from paying a fee to a private attorney. The attorney had represented the mayor of North Little Rock, who had been charged with disorderly conduct and resisting arrest. These charges were subsequently dismissed. The complaint alleged an illegal exaction which is prohibited by art. 16, § 13, Constitution of the State of Arkansas. The chancellor dismissed the complaint and this appeal resulted.
John W. Hall, Sr., instituted this suit against Reed W. Thompson in his capacity as mayor and as an individual. Thompson hired a private attorney to defend him against the charges of disorderly conduct and resisting arrest. The arrest grew out of an incident of October 12, 1982, when the mayor went to the police and courts building. The chief of police was in the process of investigating a wrecker contract entered into between the city and a third party. As part of the investigation, subpoenas were issued for several members of the mayor’s staff. When the mayor went to the police department to find out what was happening some type of disagreement between him and the chief of police ensued and the chief arrested the mayor for disorderly conduct and resisting arrest. The mayor denied any wrongdoing. At the trial it was stipulated that Chief Younts was a well qualified officer and if he were present he would testify he had probable cause to arrest Thompson. Prior to the trial of the case, the bill for the private attorney, in the amount of $3,600, was paid from the mayor’s emergency fund. No appropriation for the attorney’s fee was made by the city council. Although there had been a resolution passed by the city council agreeing to appropriate funds as needed for the purpose of paying outside counsel in matters requiring use of such attorneys there was no effort to proceed in accordance with the resolution.
The funds used by Thompson to pay his privately retained defense counsel were taxpayers’ money. The Arkansas Constitution, art. 16, § 13, authorizes any taxpayer to institute suit in behalf of himself and all other interested parties against illegal exactions. The suit was properly filed. The fact that the funds sought to be prevented from being expended had been spent before the chancellor rendered the decree would ordinarily render the question moot. However, we reach the merits because of the possibility of future similar disputes. To fail to reach the merits of the case would tend to encourage the expenditure of public monies without proper procedures and safeguards.
We now consider the argument that this expenditure was an illegal exaction. There is no statutory authority in Arkansas allowing payment of attorney’s fees for public officials and employees when they are terminated or charged with criminal offenses. Even if a public employee is wrongfully discharged and subsequently ordered reinstated he is not authorized to collect attorney’s fees from public funds. Williams v. Little Rock Civil Service Commission, 266 Ark. 599, 587 S.W.2d 42 (1979). Other jurisdictions have also held that attorney’s fees are not recoverable by public officials or employers who are successful in getting the charges dismissed. Chapman v. City of New York, 168 N.Y. 80, 61 N.E. 108 (1901); Schieffelin v. Henry, 123 Misc. 792, 206 N.Y.S. 172 (1924); Guerine v. City of Northlake, 1 Ill. App.3d 603, 274 N.E.2d 625 (1971); Holtzendorff v. Housing Authority of Los Angeles, 250 Cal. App. 2d 596, 58 Cal. Rptr. 886 (1967), cert. denied, 389 U.S. 1038 (1968). In Chapman, supra, the court stated:
It is not the duty of the public to defend or aid in the defense of one charged with official misconduct. The history of morals or jurisprudence recognizes no such obligation. When a citizen accepts a public office, he assumes the risk of defending himself against unfounded accusations at his own expense.
Many other cases from various jurisdictions hold that payment of attorney’s fees for defending against criminal charges is the responsibility of the person so charged.
The official duties of a public official or employee never require him to participate in criminal activities except in most unusual cases. Certainly Mayor Thompson was not charged with performing his public duties. He was charged with violating criminal laws.
The fact that he was not convicted does not change the reason for the arrest. Nothing in the record tends to show that the public benefitted from the confrontation of the two officials. There being no public benefit by the conduct of the mayor, it follows that the public should not pay for his defense.
If the mayor were falsely arrested, he has a right to claim against the responsible parties. If he should recover, it would be purely personal.
Although the exaction was illegal we are unable to do more than declare it so. Neither the city nor the attorney is a party in this proceeding.
Reversed.
Hays, J., not participating.
Dudley and Hollingsowrth, JJ., dissent. | [
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John I. Purtle, Justice.
On judicial review of an administrative agency decision, the Jackson County Circuit Court reversed the agency by granting a default judgment to the appellee. We agree with appellants that it was error for the court to grant default under the circumstances.
Appellant Division of Social Services, a state agency, supervises the Medicaid program for the State of Arkansas. The appellee, G.P.W. Nursing Home, is a provider under the program. The division disallowed a claim made by appellee. After an administrative hearing the claim was again denied. The Division of Social Services made findings of fact and conclusions.of law in which the agency’s denial was upheld. Kenny Whitlock, acting Commissioner, Department of Human Services, adopted the hearing officer’s decision. Appellee filed an instrument in the circuit court entitled “complaint” and “petition for judicial review of an administrative decision.” In the body of the pleading it is stated: “Petitioner files this appeal pursuant to the provisions of Ark. Stat. Ann. § 5-713 . . .” Appellee subsequently filed a petition to stay the administrative action and also caused summons to be issued and served upon Kenny Whitlock. The summons was served on March 21,1983. The appellants did not file a timely answer. However, the certified transcript of the administrative proceeding and a response was filed within the time allowed by the court. The court granted default because the agency did not answer within twenty days.
The question presented in this appeal is whether an administrative agency is bound to file an answer to a complaint, which is in the nature of a petition for review, filed in circuit court. The Administrative Procedure Act (APA), Ark. Stat. Ann. §§ 5-701 through 5-715.3 (Repl. 1976 and Supp. 1983), is controlling in this matter. The act provides that any person who considers himself injured by the final action of an agency shall be entitled to judicial review. The review proceedings shall be instituted by “filing a petition” in the circuit court. Filing the petition does not automatically stay enforcement of the agency decision. Subsection (d) of Ark. Stat. Ann. § 5-713 states in part as follows:
Within thirty (30) days after service of the petition, or within such further time as the court may allow, but not exceeding an aggregate of ninety (90) days, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened.
Regardless of the title of the pleading filed in the circuit court by the appellee, its contents and the relief sought clearly reveal it was a petition for review of the final decision of an administrative agency. Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W.2d 836 (1968). When a party chooses to proceed pursuant to the APA he is bound by the procedures set out therein and is not entitled to a jury trial. Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979). Appellee contends ARCP Rules 1 and 81 (a) allow it to proceed on the complaint as provided by Rules 12 and 55 (a). We hold that the APA procedure for judicial review (Act 434 of 1967 as amended by Act 704 of 1979) is an exception to the rules of civil procedure in Rule 81 (a) which states:
These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.
It is obvious that the legislature and this court intended for the APA to be one of those exceptions to the rules of civil procedure. The appellants met the requirement of Ark. Stat. Ann. § 5-713 (d) by filing the original or a certified copy of the record of the proceeding under review. Therefore, an answer was not required.
The decision of the trial court is reversed and the case is remanded with directions to proceed in accordance with the provision of the APA.
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Webb Hubbell, Chief Justice.
Appellee Levert Brown was charged with violating Act 549 of 1983 [Ark. Stat. Ann. §§ 75-2501 — 75-2533 (Supp. 1983)], driving while intoxicated (D.W.I.), fourth offense. The Circuit Court granted appellee’s pre-trial motion to suppress evidence of his three prior D.W.I. convictions because in those earlier proceedings he was not represented by counsel. The court then refused to grant appellant’s motion to amend the charges against appellee to D. W.I., first offense, and granted appellee’s motion to dismiss the case. We affirm the suppression of the prior convictions, but we reverse the court’s denial of the motion to amend.
The first issue is whether Baldasar v. Illinois, 446 U.S. 222 (1980) bars prior uncounseled misdemeanor convictions from being used to enhance punishment for a subsequent offense. In Baldasar the prosecution sought the introduction of a prior uncounseled misdemeanor theft conviction to support the enhancement of a second misdemeanor theft to a felony. In a plurality opinion, the United States Supreme Court held that while an uncounseled misdemeanor conviction is valid, if the offender is not incarcerated, such a conviction may not be used under an enhancement statute to convert a subsequent misdemeanor into a felony punishable by a prison term.
This case presents a similar situation. The prosecutor sought the admission of three prior D.W.I. convictions which by his own admission were obtained in uncounseled proceedings. Section 4 of Act 549 sets the prison term for violation of Section 3 of the Act. The first offense is punishable by imprisonment from twenty-four hours to one year; the second offense, imprisonment from seven days to one year; the third offense, imprisonment from ninety days to one year; the fourth offense, imprisonment from one to six years. Appellant argues that the Baldasar decision is a mere plurality opinion and that its reasoning should not bind this court, but a fourth offense of the Arkansas D.W.I. law imposes an even lengthier prison term than the statute in Baldasar, and the holding still controls the facts in this case. We affirm the trial court’s suppression of the three uncounseled prior convictions.
After the trial court suppressed defendant’s uncounseled prior convictions, the state sought to amend the information to D.W.I., first offense. Neither appellant or appellee raised the constitutionality of Section 8 at the trial court or an appeal, so those issues will not be considered. Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983).
The court denied the state’s motion hold that Section 8 of Act 549 prevents the charge from being reduced. Section 8 states: “Persons arrested violating Section 3 of this Act shall be tried on such charges or plead to such charges and no such charges shall be reduced.” Section 3 provides: (a) “It is unlawful and punishable in this Act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.”
The trial court found the word “reduced” to mean a reduction in the penalty provisions of the statute. But Section 8 refers to Section 3 of the Act. The penalty provisions are found in Sections 4 and 5 of the Act.
A particular provision of a statute must be construed with reference to the statute as a whole. 2A Sutherland, Statutory Construction § 46.05. The “no reduction” language of Section 8 applies to the reduction of the offense, such as to reckless driving, not to the number of offenses.
The state is entitled to amend an information to conform to the proof when the amendment does not change the nature or degree of the alleged offense. Ark. Stat. Ann. § 43-1024 (Repl. 1977); Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). Such authorization simplifies procedure and.eliminates some technical defenses by which an accused might escape punishment. Underwood v. State, 205 Ark. 864, 171 S.W.2d 304 (1943). The change sought by the state would not have changed the nature or degree of the offense but would merely have authorized a less severe penalty. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977) and Silas v. State, 232 Ark. 248, 337 S.W.2d 644 (1960). The trial court erred in refusing to allow the state to amend the information.
Affirmed in part, reversed in part.
Purtle, J., dissents. | [
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George Rose Smith, Justice.
This appeal, brought to iis under Rule 29 (1) (c), must be dismissed for want of a final order.
Clif Turnage was arrested and charged in the Monti - cello municipal court with contributing to the delinquency of four different minors. After having been convicted and fined $109 on each charge, Turnage appealed to the circuit court, where he argued that the clerk’s fee for filing the record should be only $15 for a single appeal and not $60 for four appeals, as the clerk insisted. Turnage’s motion to require the clerk to file the record for a $15 fee was overruled by the circuit judge, who held that Turnage must pay $15 for each of four appeals. Turnage appeals from that order, the charges not yet having been tried in the circuit court.
The trial judge’s order is clearly not a final judgment, for the case is still awaiting trial on the merits in the circuit court. A judgment, to be final and appealable, must dismiss the parties from the court and conclude the controversy. McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982); Alexander v. State, 260 Ark. 785, 261 Ark. 26, 545 S.W.2d 606 (1976). This order is merely interlocutory. Turnage’s remedy is to pay the costs as demanded, seek to have them retaxed under the statute, Ark. Stat. Ann. § 27-2320 (Repl. 1979), and take an appeal if desired after the case has proceeded to a final judgment.
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Robert H. Dudley, Justice.
This case involves the interpretation of the criminal sentencing statutes of 1979. Jurisdiction is under Rule 29(1 )(c).
On September 11, 1979, the appellant, a youthful offender, committed the felony of theft by receiving a stolen pistol. He was charged and, on January 6, 1981, pleaded guilty. The judgment of conviction provides that he “is sentenced to three (3) years probation . . “is hereby committed to the Department of Correction or its authorized representative for a term of three years in the state penitentiary;” and “the execution is hereby stayed for a period of three years.” Thus, on January 6, 1981, the trial court sentenced appellant to a term of three years imprisonment, suspended execution of the sentence and placed appellant on three years probation.
The statute in effect on the date of the crime governs the sentence. Article II, § 17 Const. of Ark.; Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). The sentence must be in accordance with the statutes. Ark. Stat. Ann. § 41-803 (Repl. 1977); Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983). In this case the judge suspended the execution of the sentence which is a proceeding by which the term of imprisonment is fixed but the serving of that sentence is suspended conditioned upon the good behavior of the offender. In 1979, there was no statutory provision authorizing suspension of the execution of a sentence for an adult offender. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980). However, under the Youthful Offenders Alternative Service Act of 1975, which was in effect in 1979, a trial court could suspend either the imposition or the execution of the sentence and, in addition, place a youthful offender on probation. Ark. Stat. Ann. § 43-2342 (a) (Repl. 1977 and Supp. 1979). Consequently, the first sentence was authorized for a youthful offender. Its term expired on January 6, 1984.
On April 15,1981, approximately three months after the first sentence, the trial court ordered that:
Defendant’s probation is revoked and Defendant is sentenced to the Department of Correction for Four years, Eight months, and twenty-one (21) days, and fine of $250.00 plus cost of $67.20 to date. That Defendant is being sentenced under Act 378 of 1975, and Defendant has consented to sentencing under provisions of said Act 378 of 1975 Section 4 (d).
The trial court should have revoked only the fixed term remaining on the suspended sentence. However, no appeal was taken. If the state attempts to enforce the sentence, the appellant must raise the matter in a post-conviction proceeding.
On August 12,1983, after a motion by the state, the trial court sentenced the appellant to an additional term of five years. This third sentence is the one now on appeal. It is reversed, set aside, and the appellant is ordered released on this sentence. A new sentence cannot be set at a revocation hearing. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). “A person need run the gauntlet only once. ” North Carolina v. Pearce, 395 U.S. 711 (1969). | [
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Robert H. Dudley, Justice.
The manager of the Kroger store on Camp Robinson Road in North Little Rock gave the police an affidavit stating that appellee had concealed a boneless ham in a sack and attempted to leave the store without paying for it. The police arrested appellee pursuant to Ark. Stat. Ann. §41-2251 (b)(Repl. 1977), which provides that a merchant’s affidavit is sufficient probable cause for making an arrest. Appellee was acquitted and subsequently filed this suit for malicious prosecution. A jury awarded appellee $7,000 compensatory damages and $36,000 punitive damages. Appellant then filed a motion for judgment n.o.v. or, in the alternative, for a new trial or remittitur. The trial court denied the motion for judgment n.o.v. and a new trial on the condition that appellee consent to a remittitur to $7,000 compensatory and $18,000 punitive damages. Appellee consented to the remittitur, and appellant Kroger filed a notice of appeal. Appellee filed a notice of cross-appeal for reinstatement of the j ury punitive damage award. We reverse and dismiss on direct appeal. Jurisdiction is in this court under Rule 29 (l)(o).
We first address appellee’s motion to dismiss the direct appeal. Although we have never had the issue presented, the general rule is that, when the trial court has ruled that the amount of the verdict is excessive, but has permitted the plaintiff to elect between consenting to a reduction of his verdict or a new trial, and the plaintiff selects remittitur, he is bound thereby and may not appeal. 4 Am. Jur. 2d, Appeal and Error § 245 (1962) citing Fulton v. Ewing, 336 Mich. 51, 57 N.W.2d 441 (1953); Sergeant v. Watson Bros. Transp. Co., 224 Iowa 185, 52 N.W.2d 86 (1952), and Florida East Coast Ry. Co. v. Buckles, 83 Fla. 599, 92 So. 159 (1922). See also Annotation, 16 A.L.R.3d 1327, Party’s Acceptance of Remittitur in Lower Court As Affecting His Right to Complain in Appellate Court As To Amount of Damages for Personal Injury. Here, the defendant sought either a remittitur or a new trial. The trial court ordered a remittitur if the plaintiff consented, or alternatively, if he did not consent, a new trial. The plaintiff chose to consent to the reduced j udgment and, under the general rule, cannot appeal. However, in this case it is the defendant who seeks to appeal. The plaintiff contends that the defendant impliedly consented to the reduced judgment and barred itself from appeal, and a defendant should be barred from appeal just the same as the plaintiff is barred. Although this is the rule in some states, we think the fairer procedure is to allow a defendant to appeal. We agree with the reasoning of the Kansas Supreme Court which held that when a party against whom the verdict was entered makes a motion to reduce the verdict and the motion is granted and the judgment entered for the residue, that party has neither acquiesced nor consented in the new judgment, and is not barred from appeal. Garden City v. Commercial Turf Irrigation, 230 Kan. 272, 634 P.2d 1067 (1981); overruling Anstaett v. Christesen, 192 Kan. 572, 389 P.2d 773, and Hawkins v. Wilson, 174 Kan. 602, 257 P.2d 1110. Here, as in the Kansas case, the defendant did not formally consent to the judgment as did plaintiff. Moreover, the defendant never had a chance to accept or reject the amount of reduced judgment, as did the plaintiff. Thus, in this matter of first impression, we hold that a defendant may appeal, even though he had previously moved in the alternative that a judgment against him be reduced or that he be granted a new trial and the plalintiff consented to the alternatively ordered remittitur. However, when the defendant appeals, the plaintiff will be allowed to file a cross-appeal. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981). Since the appeal and cross-appeal are allowed in this case, we discuss the merits of the appeal.
Appellant Kroger’s principal argument is that probable cause existed for the prosecution of appellee and therefore it was entitled to a judgment notwithstanding the jury verdict. The test for determining probable cause is an objective one based not upon the accused’s actual guilt, but upon the exsitence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Malvern Brick and Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Ordinary caution is a standard of reasonableness which presents an issue for the jury when the proof is in dispute or is subject to reasonable inferences. Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1982). The trial judge may decide, as a matter of law, whether ordinary caution exists only when the facts and the reasonable inferences from those facts are undisputed. Id. A trial judge may grant a judgment n.o.v. if there is no substantial evidence to support the jury verdict, and one party is entitled to judgment as a matter of law. Findley’s Adm’x v. Time Ins. Co., 269 Ark. 257, 599 S.W.2d 736 (1980). The definition and test for substantial evidence are stated in Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979):
Substantial evidence has been defined as “evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.” Ford on Evidence, Vol. 4, § 549, page 2760. Substantial evidence has also been defined as “evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Wigmore on Evidence, Vol. IX, 3rd ed § 2494, footnote at page 300. See also Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W.2d 574; Goza v. Central Ark. Dev. Council, 254 Ark. 694, 496 S.W.2d 388.
It is the duty of the appellate court to determine whether there was competent substantial evidence to support the jury verdict. Although many facts in this case are disputed, the facts concerning Kroger’s exercise of ordinary caution are not. Kroger had the benefit of Ark. Stat. Ann. § 41-2202 (2) (Repl. 1977) which provides:
Shoplifting Presumption. The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.
Given this statutory presumption, there was substantial evidence that the appellant exercised ordinary caution. Appellee’s proof only created a suspicion or caused conjecture. Moreover, Rule 301 of the Arkansas Uniform Rules of Evidence provides that “a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.” Appellee’s testimony, when viewed in light of the shoplifting presumption and Rule 301, is not substantial evidence that Kroger failed to exercise the ordinary caution exhibited by the reasonable prudent merchant. Appellee’s proof thus fails to meet the substantial evidence test. The lack of substantial evidence of Kroger’s failure to exercise ordinary caution leaves us with Kroger’s evidence that it did exercise ordinary caution. It follows that the trial court should have granted a judgment notwithstanding the verdict.
The facts in this case, when viewed most favorably to the appellee, as we are bound to review them, are summarized as follows: Appellee worked as a route salesman for Max Factor and as such regularly serviced several Kroger stores in the Little Rock area. He was servicing his account at the Kroger store on Camp Robinson Road when a Kroger employee asked him for some Toujours Moi, a perfume spray. Appellee took two of Kroger’s bottles of perfume from the shelf and wrote a Max Factor credit slip for $25.00 to pay for the perfume. He routinely did this as a promotion for Max Factor. Appellee then decided to purchase a boneless ham. He wanted to purchase the ham with the Max Factor credit slip but he knew that Max Factor policy prohibited him from writing more than one credit slip a month at each store. He decided he would replace the two bottles of perfume and exchange the credit slip for the ham. He interned to get one of the replacement bottles from the trunk of his car and the other from a pharmacy in North Little Rock, bring them both back to the store, and place them on the shelf. He told one of the regular employees that he wanted to exchange the merchandise but he knew it would require the approval of someone in higher authority at the store. The person he had hoped would authorize the exchange was not at work that day. In plain view of a Kroger employee, he picked up the ham and placed it inside a heavy brown paper bag. The employee reported what she had seen to the manager. Later, appellee was in a back room of the store when the manager came in. He said nothing to the manager about the ham because the manager seemed to be in a hurry. The manager subsequently asked a different employee to verify if appellee still had the ham in the bag. The employee confirmed that appellee still had the ham. Appellee then folded the top of the bag to keep air from getting to the cold ham, placed a claim for credit across the top of the bag and stapled it shut. The claim for credit recited that it was for Max Factor “credit script # 92821.” Max Factor credit script #92821 recited that it was for “Unsalable items nonreturnable.” The claim for credit said nothing about a ham. If the store manager had not known the ham was in the bag, he would have thought it was damaged Max Factor merchandise because Max Factor merchandise is all that appellee was authorized to pick up with a claim for credit. The manager next went to a place in the front area of the store by a railing which was twenty-one feet two inches past the last cash register and six feet six inches from the front door. The appellee observed the store manager and walked past the cash register toward the manager. Appellee testified:
I walked up to this railing. I set the ham on top of the railing and he turned around and he said “What do you have?” I said “I have a credit here I have written for perfume and I have a ham to see if you will authorize an exchange of merchandise for Toujours Moi.”
The store manager then asked appellee to go to the office and discuss the concealed ham. Appellee testified that the store manager said it looked like appellee was going to walk out of the store. Appellee responded by saying, “No way. You don’t even take a paper clip without authorization.” Appellee explained that he intended to exchange merchandise. Appellee was allowed to leave the store and he continued his route. While he was gone the store manager checked with the two employees who had received the perfume and they said the credit slip was for the perfume. Late in the afternoon appellee received a call from the Kroger area manager who asked him to return to the store. Upon returning to the office appellee was informed by both the store manager and area manager that it looked like he was trying to leave the store with the merchandise. Appellee then again stated that he intended to replace the perfume and exchange script for the ham. He had brought the two replacement bottles of pefume with him. The area manager then left the room and the store manager told appellee that he would not authorize an exchange like that. Appellee testified that he told the store manager that all he wanted was an authorization. The area manager stuck his head in five minutes later and said, “Book him.” The arrest and prosecution followed. The jury found Kroger guilty of malicious prosecution and fixed the amounts at $7,000 for compensatory damages and $36,000 for punitive damages. The trial court reduced the punitive damages but refused to grant a judgment for the defendant notwithstanding the verdict.
The evidence which would induce a person of ordinary caution to believe the accused to be guilty is substantial. The appellee placed the ham in a heavy brown paper bag, folded the top of the bag over, placed a claim for credit across the top of the bag and stapled it shut. The ham was concealed in the bag and the claim for credit indicated to Kroger employees that damaged Max Factor merchandise was in the bag. The appellee had the opportunity, in the back room, to ask the store manager if he could exchange merchandise and pay for the ham with the script but he did not do so. The appellee walked twenty-one feet past the cash register without paying for the concealed ham. He got to within six feet six inches of the front door when the manager turned around and faced him. Again, he said nothing about the ham. It was not until after the manager asked, “What do you have?” that appellee offered any explanation of the concealed ham. This constitutes substantial evidence by which a person of ordinary caution would believe appellee was guilty of shoplifting. We are left with the question of whether there was any substantial evidence of lack of ordinary caution so that a jury question was presented.
At common law, if a storekeeper observed someone stealing his goods, he was permitted to use reasonable force to retake the goods. However, there was no room for mistake and if the shopkeeper was wrong, he was liable. See 28 Proof of Fact 2d, Customer’s Concealment, § 1, 47 ALR 3d 998, False Imprisonment — Shoplifters, § 3. At that time most storekeepers had small shops and kept most of their wares stacked on shelves behind glass counters. The customers could not ordinarily touch the goods out of the shopkeeper’s sight and consequently there was little doubt when someone was stealing. Today, modern supermarkets are tens of thousands of square feet in size and display nearly all of their goods on open shelves within easy reach of the customer. The customer picks up the goods and can continue shopping over the entire store area before taking his selections to a check-out stand. This great size and easy accessibility make it very difficult for a merchant to know when someone is shoplifting from the shelves. See 28 Proof of Fact 2d, Customer’s Concealment, supra.
The common law is not sufficient to protect today’s merchants. Many states, including Arkansas, have enacted legislation which is designed to protect merchants who, in good faith and with ordinary caution, detain suspected shoplifters or prosecute them. See Ark. Stat. Ann. § 41-2202 (2) (Repl. 1977), supra.
The facts of this case, coupled with the shoplifting presumption would induce a person of ordinary caution to believe appellee was guilty of shoplifting.
The appellee contends there is a substantial evidence of lack of ordinary caution for three reasons. First, appellee contends he was walking to the store manager to discuss the exchange and not to get out of the store, when the store manager asked him what was in the sack. Second, he explained that he wanted to exchange the merchandise. Third, the store manager did not immediately decide to prosecute. None of the arguments amount to substantial evidence of lack of ordinary caution. Appellee’s subjective intent while walking past the check-out counter is not an overt act which can be observed by a merchant. The refusal of the store manager and area manager to believe an improbable explanation does not amount to substantial evidence of lack of ordinary caution. The fact that the appellant chose to take three or four hours before initiating the prosecution is evidence of more than ordinary caution, not substantial evidence of lack of caution. There simply is no substantial evidence of lack of ordinary caution. Thus, the trial court erred in failing to grant a judgment notwithstanding the jury verdict.
The trial court recognized the lack of substantial evidence to prove lack of ordinary caution when he observed:
I have trouble even finding that they even acted wrongly at all. And that’s my biggest hurdle trying to get over that. I was tempted to say, let’s just set it aside and try it new because I just don’t think that’s a good verdict. I think the testimony your man gave, frankly, was just preposterous. And maybe I should have granted a directed verdict. You know, I gave the benefit of the doubt and let it go to the jury. Maybe we ought to just set it aside and try it again.
# # #
The far more logical story is what Kroger represented. It just doesn’t even compare in logic.
* # *
This guy tried to walk out with a ham without paying for it.
There is no substantial evidence to sustain the verdict on direct appeal. Reversed and dismissed on direct appeal. Consequently, the cross-appeal is moot.
Purtle, J., and Hollingsworth, J., dissent. | [
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P. A. Hollingsworth, Justice.
The appellant was convicted by a jury of burglary, two counts of theft of property and found to be an habitual offender. He was sentenced to a term of twenty-five years imprisonment on each charge, to be served consecutively. It is from that conviction that this appeal is brought. This appeal is before us under Ark. Sup. Ct. R. 29(l)(b).
The charges arose over the March 23, 1983, theft of a vehicle from Hatcher Construction Co. in Pine Bluff, the subsequent entry into Dillard’s department store, and the theft of property therefrom. On appeal, the appellant challenges the trial court’s denial of his motion for a directed verdict and the sufficiency of the evidence to support his conviction.
The State presented evidence that a van worth approximately $4,500 was stolen from the Hatcher Construction Company on March 23, 1983. At approximately 10:30 p.m. on the same day, the van was seen by a passerby, John Watson, at Dillard’s department store in Pine Bluff, driven through a plate glass window. Watson went to telephone the police and, upon returning, the van was being driven away. He was unable to identify the driver.
After the police arrived, the store officials were notified of the incident, and it was determined that merchandise was missing from the electronics department. The department manager made an inventory of items that were missing and gave the list to the Pine Bluff detectives investigating the burglary. There were fourteen items on the list and all but four had the serial numbers listed. Several of these items were later recovered and, as a result of the investigation, the appellant was arrested on February 21, 1984. On February 23, 1984, he was read the standard Miranda rights form and signed it indicating he understood. Three detectives were present and appellant agreed to talk to them about the burglary at Dillard’s on March 23,1983. The appellant in his oral statement went into detail about taking the van from the construction company, driving it into Dillard’s and taking the televisions and other electronic items on the inventory list. Appellant did not account for all of the items but told the detectives enough for them to recover several of the items they had not found. Appellant was asked to put his statement in writing, but he refused.
We have held that “[A] directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to appellee and affirm if there is any substantial evidence to support the verdict.” Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978).
The standard for reviewing the sufficiency of the evidence is similar. In Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980), reh’g denied, we held that:
[i]t is well-settled that on appeal in criminal cases the evidence must be viewed in the light most favorable to appellee and the judgment affirmed if there is any substantial evidence to support the finding of the trier of fact, (citations omitted) Substantial evidence is that which is more than a scintilla and must do more than create a suspicion of the existence of the fact to be established; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
In Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982), we defined substantial evidence as evidence which is:
of sufficient force and character that it will with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture, (citation omitted)
We hold that the evidence in this case was sufficient.
Mrs. Fannie Washington, the department manager at Dillard’s, testified as follows:
Q: Were you asked to prepare an inventory of what was unaccounted for?
A: Yes, I was.
Q: Okay. Did you prepare that inventory?
A: I did.
Q: Before we go over the inventory, who did you give that inventory to?
A: Art Brown.
Q: Okay, and Art Brown is who?
A: He is one of the officers of the Police Department.
Mrs. Washington read from the inventory all of the items that she listed as being missing. She then used the list for reference to testify as to which items were returned. The recovered items included a Magnavox television set valued at $399, a JVC portable radio valued at $499, and an Intellivision television game main frame value at $69.95. According to the list, which was included in the record, the television, the radio, and the television game all had serial numbers.
Furthermore, in his confession, the appellant identified the items on the inventory list and stated that he gave the Magnavox 19" color television to his mother. He also identified the JVC portable radio which was sitting in the detective’s office as an item that had come out of the burglary.
The appellant argues that the State’s case was based on circumstantial evidence. We held in Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982), that “[t]he fact that evidence is circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred.”
The evidence was sufficient to support the appellant’s conviction.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
Appellant, Ralph Lewis Kramer, was tried and convicted by the court of sexual abuse, 1st degree, in violation of the Ark. Stat. Ann. § 41-1808 (Repl. 1977) and sentenced to four years imprisonment. On appeal appellant argues the evidence is insufficient to support the conviction. We agree.
The victim, a twelve-year-old girl, testified that on June 19,1983, while she was standing in line to get a soft drink in a store, appellant touched her on her buttocks. Appellant argues that the sexual abuse statute does not prohibit touching of the buttocks and that therefore the evidence is insufficient to support the conviction.
Ark. Stat. Ann. § 41-1808 (Repl. 1977) provides:
(1) A person commits sexual abuse in the first degree if:
(c) being eighteen (18) years or older he engaged in sexual conduct with a person not his spouse who is less than fourteen (14) years old.
Sexual contact is defined in Ark. Stat. Ann. § 41-1801(8) (Repl. 1977) as follows:
(8) “Sexual conduct” means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female.
It has long been held that penal statutes are to be strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed. Austin v. State, 259 Ark. 802, 536 S.W.2d 699 (1976); Scarmardo v. State, 263 Ark. 396, 565 S.W.2d 414 (1978). Touching of the buttocks is not prohibited sexual conduct as defined in Ark. Stat. Ann. § 41-1801(8); therefore appellant’s conviction cannot stand under this statute.
Reversed and dismissed.
Purtle, J., concurs.
Hickman and Hays, JJ., dissent. | [
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Per Curiam.
This case is similar to and controlled by the opinion in State of Arkansas v. Levert Brown, also decided today. The j udgment is accordingly affirmed in part and reversed in part and the cause remanded. | [
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Robert H. Dudley, Justice.
In 1963, appellee, the City of Hampton, acquired 57 acres of land from Charles and Ann Broach for the price of $105.00 per acre. The acreage was to be used for an oxidation pond and pumping station for the city sewer system. On February 8, 1966, after the construction was complete, Charles Broach asked the Hampton City Council if he and Ann Broach could buy back that part of the property which had not been used for the sewer system. The council voted to sell back the unused 43.15 acres at the price of $50.00 per acre, but reversed the right to repurchase the property when the sewer system required additional oxidation ponds. The pertinent provision in the deed reads as follows:
The grantees herein, Charles Broach and Ann Broach, hereby agree to sell back to the City of Hampton, grantors herein, all or any part of the above-described 43.15 acre tract that the City of Hampton might need in the future for oxidation ponds for the city sewer system, at a price of $50.00 per acre. Grantor reserves such right of purchase.
In 1973, Charles Broach died, leaving appellant as the survivor. Meanwhile the City of Hampton grew and the additional population required expansion of the sewer system. In July, 1983, the City Council voted to repurchase the property for the price stated in the deed, $50.00 per acre, and expand the system. Appellant refused to sell. Appellee city filed suits for specific performance. Appellant answered, raising various defenses, among them being that the option to repurchase was void because it violated the Rule against Perpetuities and also because it placed an unreasonable restraint upon alienation of the land. The court granted appellee’s request for specific performance. We affirm. Jurisdiction is in this court pursuant to Rule 29 (l)(p) as the case presents a question about the construction of deeds.
We must first decide whether the repurchase option in the deed is void because it violates the rule against perpetuities or the rule against unreasonable restraints on the alienation of property. Although these rules are distinct entities, they share a common purpose which is to insure that property is reasonably available for development by forbidding restraints that keep property from being used for a lengthy period of time. L. Simes 8c A. Smith, The Law of Future Interests § 1135 (2d ed. 1956). Iglehart v. Phillips, 383 So.2d 610 (Fla. 1980). Article 2, Section 19 of the Arkansas Constitution forbids perpetuities. Arkansas does not have a statute stating the rule against perpetuities, but follows the common law rule which prohibits the creation of future interests or estates which by possibility may not become vested within the life or lives in being at the time ... of the effective date of the instrument and 21 years thereafter. Roemhild v. Jones, 239 F.2d 492 (8th Cir. 1957); Hendricksen v. Cubage, 225 Ark. 1049, 288 S.W.2d 608 (1956).
The language in the repurchase option clause of the deed mentions only Charles and Ann Broach and the City of Hampton. No Arkansas case has previously decided the issue of whether the rule against perpetuities applies to an option to repurchase. However, in Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918 (1950), that court stated:
In practically all the cases holding that the reservation of an option to repurchase made in favor of the grantor violates the rule against perpetuities and is invalid, the language of the reservation clearly extended the option beyond the life of the optionee. Usually the reservation of the option was to the optionee, his heirs and assigns.
313 Ky. at 252, 230 S.W.2d at 920. In the case before us there is no language in the deed which states that the option runs to the heirs or assigns of the Broaches, nor is there any other language that indicates that the parties intended that the terms would be binding beyond the lives of the Broaches. There is a reasonable basis, therefore, for the trial court’s ruling that the option did not extend beyond the lives of the parties to the option, and consequently, we cannot say as a matter of law that the rule against perpetuities has been violated.
The same result follows where there are two possible constructions to the option agreement because:
The rule against perpetuities is not a rule of construction but a rule of property, yet if there are two possible constructions of an instrument, one which would render it valid and one which would render it invalid, preference will be accorded to the construe tion which will uphold it. Roemhild v. Jones, 239 F.2d 492, 496 (8th Cir., 1957).
Appellant’s contention that the repurchase option violates the rule against unreasonable restraints upon alienation is also without merit. A direct restraint on alienation is “a provision which, by its terms, prohibits or penalizes the exercise of the power of alienation.” L. Simes, Law of Future Interests 237 (1966). There are three types of direct restraints. 4 Restatement, Property § 404 (1944). First, a disabling restraint is created when property is devised or conveyed with the limitation that it not be alienated. Simes, at 237. See Garner v. Becton, 187 Tenn. 34, 212 S.W.2d 890 (1948). All disabling restraints are void except those restraints on alienation incidental to spendthrift trusts. Simes, at 238. Second, a forfeiture restraint is created when, by an instrument of transfer, the estate transferred will be subject to forfeiture or termination on alienation. Id. The general rule is that all forfeiture restraint are void. Simes, at 242. See Crecelius v. Smith, 255 Iowa 1249, 125 N.W.2d 786 (1964). Third, a promissory restraint is created when the promisor agrees, in a convenant in an instrument of conveyance, or by contract, not to alienate the property. Simes, at 238. Generally, although there are some exceptions, the law treats such promisory restraints just as it treats forfeiture restraints and declares them void. Simes, at 248. See Jackson v. Jackson, 215 Ga. 849, 113 S.E.2d 766 (1960).
The language in this deed does not create an unreasonable restraint on alienation for the simple reason that it does not constitute a restraint on alienation as above defined. There is no language by which the Broaches promise not to sell nor is there any language prohibiting the alienation of the land or causing forfeiture upon attempted alienation. The Broaches were free at all times to sell the interest they owned in the land.
The result announced by the trial court is correct. An appellate court will sustain the judgment if it is right, although the trial court announced the wrong reason for its ruling. Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983).
Appellant additionally argues that the trial court erred in holding that appellee’s reservation of the right to repurchase was enforceable. Appellant contends that the statute of frauds is applicable to the reservation of the right to repurchase and that appellee must prove both the terms of the contract and the facts constituting performance in order to take the contract out of the statute of frauds. We find no merit in this argument. It is apparent from the language of the deed what the terms of the contract are and we note, as did the trial court, that the grantees accepted the deed, placed it on record, paid the purchase price, and took possession of the land.
The last point we address is whether appellee’s reservation of the option to repurchase was still in effect when appellee attempted to exercise it since there was no express time limit stated in the deed. When there is no time limit expressed, an option must be exercised within a reasonable time of its execution and delivery. Gerald Elben, Inc. v. Seegren, 62 Ill. App. 3d 20, 378 N.W.2d 626 (1978). This court has upheld the trial court’s reasoning in determining that the option did not violate the rule against perpetuities because it could only be exercised during the lives of the grantees. We hold that limiting the exercise of the option to the lives of the grantees is a reasonable period of time.
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Per curiam.
Appellant, David Bosnick, has filed a motion for costs pursuant to Rule 24 of the Supreme Court Rules. The Attorney General did not file a response to the motion. Rule 24 provides that where, as here, an appellant succeeds in having the trial court’s ruling reversed, he may recover brief costs at the amount allowed per page, not to exceed $300.00, filing fee and record fee.
The appellant alleged in his motion that he has incurred costs of $100.00 for the filing fee; $114.60 for the record fee; and $56.00 for brief reproduction. The costs related to the brief reproduction will be determined by the Supreme Court Clerk based on the amount allowed per page. That sum plus the other two amounts alleged are ordered paid by the appellee.
Hickman and Dudley, JJ., dissent. | [
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George Rose Smith, Justice.
More than four years after the appellee Hoyt Thomas, a lawyer, had given an opinion approving the title to land being purchased by the appellants, they brought this action against Thomas for damages resulting from his asserted negligence in failing to mention in his opinion that the seller did not have title to the minerals. On agreed facts the trial court entered judgment for the defendant on the ground that the cause of action was barred by the three-year statute of limitations. Ark. Stat. Ann. § 37-206 (Repl. 1962). Our jurisdiction of the appeal is under Rule 29 (1) (c).
Counsel for the appellants concede that it has long been the law in Arkansas that the statute of limitations in an action against an attorney for negligence begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered by the client. White v. Reagan, 32 Ark. 281 (1877); Wright v. Langdon, 274 Ark. 258, 623 S.W. 2d 823 (1981). The same rule applies to an action brought against an abstractor for damages resulting from an omission in the abstract of title. St. Paul Fire & Marine Ins. Co. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502 S.W. 2d 100 (1973). Counsel argue that we should overrule our prior cases, because an injustice occurs when the statute has run before the error is discovered. That may be true, but a countervailing consideration is that the contrary rule would permit the plaintiff to bring suit many years after the damage had actually occurred and at a time when witnesses might no longer be available. If such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature, not retrospectively by the courts.
Affirmed.
Dudley, J., not participating. | [
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Richard B. Adkisson, Chief Justice.
Appellant, Walt Bennett Ford, Inc.., sold a car to appellee, Judy Brown. The car was represented by the salesman and by the sales slip to be a “new demonstrator.” A jury found that this representation was false and that the car had been wrecked and repaired prior to sale. The jury awarded appellee $2,000.00 compensatory damages which the Pulaski County Circuit Court reduced to $250.00 and $8,000.00 punitive damages which the circuit court allowed to stand. Appellant argues six points for reversal. Appellee cross-appeals, arguing the trial court erred in reducing the compensatory damages from $2,000.00 to $250.00. On appeal we affirm; on cross-appeal we reverse.
Appellant first argues there was not substantial evidence to support the jury’s verdict. Appellee, Judy Brown, testified that she went to Walt Bennett Ford in response to their “T.V. ads” and told the salesman there she wanted a new car, a little smaller than her station wagon, and with front wheel drive. The salesman then showed her the 1981 Ford Fairmont automobile. He told her the car “sold for over $8,000.00,” but because it was a demonstrator, he would sell it to her for $7,434.00.
When appellee drove the car home, a neighbor who had worked as a car body repairman examined the car and told her that it had been wrecked. At trial the neighbor testified that he noticed a wad of bondo filler on the left front fender. He explained that body repairmen will beat a fender as straight as possible and then smear on the bondo, sand it, prime it, and paint it. He further testified that the braces on the car’s core support were different colors, indicating that one was not the original. He testified that he noticed “overspray up here” when he looked at the hood stops and that “the grill don’t match,” and that “the gravel shield was not attached properly.” He stated that when he saw appellee drive the car and back it in her driveway he noticed the automobile was painted two different shades of white. He further testified that in his opinion the car had been wrecked.
Another body repairman of thirty-nine years experience testified that he too had looked at the car and that in his opinion based on thirty-nine years of experience “it’s definitely been wrecked.” He itemized 1) bondo on the left front fender; 2) front fenders were not in line; 3) underside of inner shield had screws left out; 4) hood bumper blocks were painted over; 5) one grill brace was painted; the other one was not; 6) windshield washer reservoir wires had been disconnected and taped back together with masking tape instead of electrical tape; 7) left door windshield post was not the same color as the rest of the car; 8) left door and fender were not flush; 9) lower left front valve brace was missing.
The service manager for Walt Bennett Ford testified that pursuant to a warranty claim filed with Ford Motor Company, appellant replaced a left brace, or bracket, on the gravel deflector for a cost of $6.07. The manager stated that when a car comes from the factory, it is checked for damages and that Walt Bennett Ford gets paid for the warranty work done when damages are noted. The record reflects that replacement of the bracket was the only warranty work done by appellant on the automobile.
On appeal we view the evidence in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, we must affirm that verdict. ARCP Rule 52. We find the testimony of two body repairmen that the car had been wrecked and the testimony of the service manager that the car was checked upon arrival and found to be undamaged except for a missing bracket constitute substantial evidence to support the jury’s verdict.
Appellant next argues the trial court erred in admitting the testimony of the Ford Motor Company car merchandising manager concerning certain business records for that particular car. The merchandising manager, located in Memphis, testified that in the ordinary course of his business he sent and received memos to various persons in Ford Motor Company concerning the vehicle to determine whether there was any record of damage to the car before it was delivered to Walt Bennett Ford. When asked what the memos revealed he stated, that “there had been no damage reported,” and that the records had been checked twice. Appellant contends that the manager was not the custodian of the records and, therefore, the testimony concerning the records should be excluded under Ark. Unif. R. Evid. 803(6) which provides that “the custodian of business records, or other qualified witness,” can testify concerning those records. Appellant objected to the manager’s testimony on the ground that he was not the custodian of the records. The trial court noted the objection but stated, “I’m going to let him testify,” apparently finding the manager an “other qualified witness.” Appellant failed to object to the testimony on the ground that the witness was not an “other qualified witness,” basing his objection on the fact that the witness was not the custodian of the records. Error cannot be predicated upon a ruling admitting evidence unless a timely objection is made stating the specific ground of objection if the ground is not clear from the context. Ark. Unif. R. Evid. 103(a)(i). See Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). Appellant is thereby precluded from raising the issue of whether the witness was otherwise qualified for the first time on appeal. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).
Appellant further argues that the trial court erred in allowing appellee to testify as to the value of her car. It is well-settled Arkansas law that an owner of personal property is qualified to give an opinion as to its value. Phillips v. Graves, 219 Ark. 806, 245 S.W.2d 394 (1952); Boston Ins. Co. v. Farmer, 234 Ark. 1007, 356 S.W.2d 434 (1962); Garrett v. Trimune, 254 Ark. 79, 491 S.W.2d 586 (1973); L. L. Cole & Son Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). Moreover, in Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980), a case with facts almost identical to those in the instant case, this Court stated, “Mrs. Smith testified that in her opinion the vehicle she paid $4,624 for was actually worth only $2,300 at the time of purchase because of the repaired damage. An owner of property may testify as to its value.” Accordingly, we hold no error was committed.
Appellant also contends the trial court erred in denying appellant’s motion for judgment n.o.v. A trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the jury’s verdict and one party is entitled by law to a judgment in his favor. McCuistion v. City of Siloam Spring, 268 Ark. 148, 594 S.W.2d 233 (1980). Since we determine there was substantial evidence to support the jury verdict, this argument is without merit.
On cross-appeal appellee maintains the trial court erred in reducing the compensatory damages from $2,000.00 to $250.00. The trial court set aside the jury determination as to the amount of compensatory damages, the difference between the value of a new vehicle and a wrecked vehicle, and substituted its own view as to these damages. In effect, this is tantamount to the trial court entering a judgment notwithstanding the verdict. We conclude that since there was substantial evidence to support the jury’s verdict, the trial court erred in reducing the amount of compensatory damages from $2,000.00 to $250.00.
Since we affirm the jury’s verdict as to the amount of compensatory damages, we do not reach appellant’s last two arguments that the compensatory damages were merely nominal and that they were unsupported by the evidence.
Affirmed in part; reversed in part.
Hollingsworth, J., concurs in part and dissents in part; Purtle, J., dissents; Hays, J., not participating. | [
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Webb Hubbell, Chief Justice.
After submitting a low bid of $239,975.00, appellee, West-Ark Construction Co., was awarded a contract to build an apartment project for appellants, Don Sellers and Carl Winn. The appellants had paid $25,000.00 for the project site and had obtained a loan to build the project from Farmers Home Administration in the amount of $260,000.00. Appellee completed the construction and was paid during the course of construction $239,975.00 plus $8,275.30 for change orders. Appellee then brought this action for fraud. He claimed that appellants had represented that if appellee would rebate appellants the $25,000.00 land cost,, appellants would pay appellee $260,000.00 for the project despite the terms of the contract. A jury awarded appellee $20,025.00 in actual damages for the misrepresentation, $25,000.00 punitive damages, and $2,000.00 for clearing the project site and spreading topsoil. Appellants urge six points for reversal. We affirm.
Appellants first argue that appellee’s deposit of a check tendered upon completion of the work in the amount of $27,055.79 and with the words “balance of contract” on its face constituted a waiver of all of appellee’s claims. Appellants contend that, based on the evidence of appellee’s acceptance of this check, the trial court erred in refusing a motion for directed verdict. Appellants also assert that the trial court erred in refusing their instruction to the effect that when a creditor cashes a check which on its face states “balance of contract,” the creditor may no longer assert his claim. In Southark Trading Co. v. Pesses, 221 Ark. 612, 254 S.W.2d 954 (1953), we said that to invoke the rule of waiver it is essential to show the defrauded party intentionally condoned the fraud, affirmed the contract, and abandoned all right to recover. See also Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). This case concerns an alleged fraud discovered after receipt of the final payment. When appellee cashed the final payment check, he did not relinquish his right to pursue his fraud claim. Moreover, waiver and release are affirmative defenses that must be pled in an answer to a complaint. ARCP Rule 8(c). The record reflects that appellants did not affirmatively plead waiver or release. Also, appellants’ motion for directed verdict was not renewed at the close of all the proof which waives the original motion. Eckles v. Perry Austen Bowling Products, Inc., 275 Ark. 235, 628 S.W.2d 869 (1982); Granite Mountain Rest Home v. Schwartz, 236 Ark. 46, 364 S.W.2d 306 (1963).
Appellants’ second argument is that the trial court erred in instructing the jury that appellee’s burden of proof was by a preponderance of the evidence. Appellants offered an instruction that would have required appellee to prove fraud by clear and convincing evidence. Clear and convincing evidence of fraud is required in equity to cancel or reform a solemn writing, but proof by a preponderance of the evidence is the proper standard in fraud cases tried to a jury. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972); Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963). The instruction given was correct.
Third, appellants assert that the trial court erroneously admitted into evidence conversations between the parties concerning and leading up to the construction contract. The parol evidence rule is a rule which prevents the admission of evidence of contemporaneous or prior oral agreements which would contradict the terms of a written contract; however, in actions founded on fraud, parol testimony is admissible to show that the making of a contract was induced by fraudulent representations. Gainer v. Tucker, 255 Ark. 645, 502 S.W.2d 636 (1973); Hamburg Bank v. Jones, 202 Ark. 622, 151 S.W.2d 990 (1941); St. Louis I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614 (1908).
Next, appellants contend that the trial court erred by excluding evidence of additional contracts between the parties after the completion of the construction project. A proffer of the contracts was never made. An objection to the exclusion of evidence cannot be considered on appeal in the absence of a showing of what the evidence would have been. Boyd v. Brown, 237 Ark. 445, 373 S.W.2d 711 (1963). When there is no proffer of evidence, we cannot say that it is prejudicial. Simmons v. McCollum, 269 Ark. 811, 601 S.W.2d 232 (Ark. App. 1980).
Fifth, appellants argue that the trial court should not have given jury instructions which permitted recovery on quasi-contract for site preparation and topsoil spreading because the written contract covered these items. The contract provided that topsoil and sodding was to be done by owner [appellants], not appellee. Although the contract did state the work included site work, the provision is not clear enough to merit an assumption that it represented a written agreement about site preparation.
Appellants assert that the contract specifically provided for the use of change orders, but the availability of change orders does not preclude a quasi-contractual obligation if the change orders were not used.
Quasi-contracts are not based on promises to pay or perform. They are obligations which are creatures of the law designed to afford justice. Downtowner Corp. v. Commonwealth Securities Corp., 243 Ark. 122, 419 S.W.2d 126 (1967). They arise where the law prescribes the rights and liabilities of persons who have not entered into any contract, but between whom circumstances have arisen which make it equitable that one should have a right and the other should be subject to a liability. Caldwell v. Missouri State Life Ins. Co., 148 Ark. 474, 481, 250 S.W.2d 566 (1921). See also Carpenter v. Josey Oil Co., 26 F.2d 442 (8th Cir. 1928).
The trial court did not tell the jury that the appellee was entitled to recover under quasi-contract, but merely authorized the jury to award damages based on quasi-contract if it found appellee entitled to recover. An instruction so given is not an incorrect declaration of applicable law. See Bates Coal and Mining Co. v. Mannon, 205 Ark. 215, 168 S.W.2d 408 (1943).
Appellants last argue error by the trial court in instructing the jury on punitive damages. The appellants did not object to the instruction. The failure to object to an instruction precludes a consideration of the issue on appeal. Willis v. Elledge, 242 Ark. 305, 413 S.W.2d 636 (1967).
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Robert H. Dudley, Justice.
Appellant, Timothy McDaniel, and Jaran Gookin were initially jointly convicted of the capital murder of Thomas Farham, Jr., We reversed, holding that appellant and Gookin were entitled to separate trials because their defenses were antagonistic. McDaniel & Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). Upon remand, appellant McDaniel was given a separate trial in which he was found guilty of first degree murder and sentenced to life imprisonment. We affirm. Jurisdiction is in this court under Rule 29 (1)(b).
Appellant initially contends that the trial court erred in admitting the testimony of Robert Merchant, a Hot Springs police officer. The same issue was raised in the first appeal and there we held that Merchant’s testimony was admissible. That holding became the Law of the Case and we will not reexamine that holding in subsequent proceedings. Turner v. State, 251 Ark. 499, 501, 473 S.W.2d 904, 905 (1971).
In order to impeach the credibility of Merchant, the appellant called a witness, Thomas Elliott, who testified that Merchant had previously made a different statement. The appellant then sought to introduce a prior consistent statement which had been written by Elliott. The court refused to allow the prior consistent written statement into evidence. The appellant contends the ruling was erroneous.
Under Rule 801 (d)(1), Unif. Rule of Evid., a trial judge has discretion in determining whether to admit a prior consistent statement. See United States v. De Vore, 423 F.2d 1069 (4th Cir. 1970). Here, the prior consistent written statement met neither of the criteria set out in Rule 801(d)(1) and was cumulative of the oral testimony Therefore the trial judge did not abuse his discretion in refusing its admission.
Appellant next urges that the trial court committed reversible error by refusing to grant a mistrial after a prospective juror commented that she could not forget what she had read about the case. The juror did not say what she read, just that she had read about the case and could not forget it. The statement, without more, did not rise to the level of manifest prejudice which would have mandated the granting of a mistrial. The trial judge did not abuse his considerable discretion by refusing to grant a mistrial. See Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983).
The next point of appeal also questions the refusal of the trial court to grant a mistrial. Prior to trial, the trial court suppressed evidence of a fight between appellant and Len Morrison. At trial, Jaran Gookin testified that after the murder he and appellant were at a nightclub, the Purity. While there, Mike Brewer told them that an informant had given the details of the murder to the police. The prosecutor then asked Gookin, “Okay, so after the Purity incident did you see the defendant again?” Gookin responded that he had seen the appellant again and the prosecutor asked when. Gookin responded, “Well, that same evening McDaniels [appellant] and this man I was referring to got in a big fight right outside the Purity.” Appellant moved for a mistrial. Before going into chambers, the trial court instructed the jury “not to consider the answer for any purpose.” In chambers the prosecuting attorney stated that he had no desire to ask about the fight and the judge commented that Gookin seemed anxious to give more information than was asked. Later, in front of the jury, the judge instructed Gookin to respond only to the questions asked. Defense counsel refused the court’s offer to again instruct the jury not to consider the answer. Appellant argues that the refusal to grant a mistrial was an abuse of discretion. As we have often said, a mistrial is a drastic remedy and will not be resorted to unless the prejudice is so great that it cannot be removed by an admonition to the jury. Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). Before Gookin volunteered the information about the fight, he had testified that on the day of the murder the appellant had: misled the victim to believe that he would pay $1,500 for a machine gun; lured the victim to a remote area in order to test fire the weapon; shot the victim in the back of the head while he was on his knees; tore out part of the victim’s throat and then hung him upside down in a tree to die. It was only after such sanguinolent testimony that Gookin stated appellant had been in the fight. Under these conditions, the statement about a fight is innocuous and the slight prejudice, if any, was not so great that it was not removed by the admonition to the jury.
Appellant next argues that the conviction must be reversed because the trial judge made a disparaging remark about appellant’s attorney. The colloquy at issue involved the direct examination of a detective by appellant’s attorney. It is as follows:
MR. TAPP [Appellant’s attorney]:
Q. Now did she make a statement about two sheets, not one?
A. Yes, sir, she did.
Q. And is it not correct she also stated that they were in the bed?
MR. CLARK [Prosecutor]: Objection, leading.
THE COURT: Sustained.
MR. TAPP CONTINUING: [Appellant’s attorney] Did you ask her whether or not her brother —
MR. CLARK: [Prosecutor] — Objection, leading. Even though characterizes whether or not. It does not make an inadmissible leading question permissible, Your Honor.
THE COURT: That is correct, sir. It’s sustained.
MR. TAPP: [Appellant’s attorney] Your Honor, I believe the rules of evidence allow leading questions on simple matters of fact, not in truth to the matter to be asserted, and that’s exactly what we’re doing here. We’re asking to read a statement.
THE COURT: Mr. Tapp, is it that you do not wish for the jury to believe the truth of what you’re eliciting from his witness?
MR. TAPP: [Appellant’s attorney] No, sir, I said, the purpose is simply to read the statement of what Mrs. Reedy said. And that is not a leading question. I’ll rephrase the question, Your Honor.
THE COURT: Maybe that’ll solve the problem.
A majority of the members of this court view the inquiry as an effort by the trial judge to understand the explanation which would have allowed appellant’s af ney to lead his witness on direction examination. However, even if the inquiry is considered as a rebuke, it would not cause reversal.
This court has decided many cases involving remarks by a judge to counsel. On one hand, we have consistently reversed where there was an unmerited rebuke which gave the jury the impression that counsel was being ridiculed. Davis v. State, 242 Ark. 43, 411 S.W.2d 531 (1967). Examples of unmerited rebukes which ridiculed counsel and caused reversal are: You are “facilitating a trial like a crawfish does, backwards;” Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924); “To grant your motion would be just silly;” and “I am not going to put up with any more of this foolishness,” McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944); “. . .these men here on the jury have something else to do besides listen to that,” Fuller v. State, 217 Ark. 679 at 681, 232 S.W.2d 988 (1950).
On the other hand, we recognize that the trial court has the responsibility for the proper conduct of the trial and we find no reversible error where the record reveals that the trial judge was merely irritated at defense counsel’s trial tactics. Rogers v. State, 257 Ark. 144, 152, 515 S.W.2d 79, 84 (1974). For example, in Rogers, supra, the defense counsel cross-examined a prosecutrix in such a manner that she began to cry. Defense counsel then stated that the prosecutrix needed a few minutes to get herself together. The judge responded, “Well, you got her this way. Why don’t you go ahead?” The judge’s inquiry in the case now before us amounted, at the most, to a showing of irritation at defense counsel’s trial tactics and did not constitute an unmerited rebuke which ridiculed the attorney.
Further, where evidence of the appellant’s guilt is overwhelming, as here, we have affirmed convictions in spite of the fact that remarks by the trial court were improper. Rogers v. State, supra: Bates v. State, 210 Ark. 1014, 198 S.W.2d 850 (1947); Tuttle v. State, 83 Ark. 379, 104 S.W. 135 (1907).
In accordance with the provisions of Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11 (f) of this court, we find there are no other rulings adverse to appellant which resulted in prejudicial error.
Affirmed.
Purtle, J., and Hollingsworth, J., dissent.
John L Purtle, Justice, dissenting. I dissent because the court ridiculed the defense attorney who was appointed to defend the appellant, commented on the evidence and failed to enforce its own ruling that the state could not bring up certain testimony.
First, the defense attorney was examining a witness when the court remarked: “Mr. Tapp, is it that you do not wish for the jury to believe the truth of what you’re eliciting from this witness?” The real meaning of the remark to the jury could be stated as follows: “Mr. Tapp, this witness is telling the truth; why don’t you want the jury to believe him?” This was a comment on the evidence and it cast the attorney in the light of one trying to make the jury believe a lie. That is worse than calling him a crawfish, foolish or silly. We have reversed and ordered a new trial for those comments. (See cases cited in the majority opinion).
To many, the second point of my dissent will no doubt seem nebulous. The court ruled in limine that the state could not bring out evidence of a fight. The state indeed brought out the prohibited testimony. The court admonished the jury but failed to rebuke the prosecutor. This is only the beginning of what I fear will become the general practice. Why make a ruling in limine if it is not to be enforced? Admittedly this was probably not prejudicial error in this particular case. Nevertheless, I would enforce the order on retrial because the case should be reversed on the comment by the trial court.
Hollingsworth, J., joins in this dissent. | [
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Robert H. Dudley, Justice.
The sole issue on this appeal is whether the trial court was right in deeming plaintiff’s requests for admissions admitted because the responses were not filed within the thirty days allowed by ARCP Rule 36 (b). We find the trial court was correct. Jurisdiction is in this court under Rule 29 (1) (c).
After the complaint and answers had been filed, the plaintiff, on September 9,1983, filed seventeen requests for admissions. At the same time, copies of the requests were mailed to the defendant’s attorney. On October 27, 1983, which the trial court found to be at least 45 days after completion of service, the defendants filed answers which were not verified. On November 3,1983, the trial court ruled that the requests for admissions should be deemed admitted and that, since no material facts were in dispute, the plaintiff was entitled to a summary judgment. Verified answers were later filed, on November 28,1983, and the defendants moved to vacate the judgment. The trial judge ruled that once requests for admissions are deemed admitted, the court is without power or discretion to permit a withdrawal or amendment of the admissions. ARCP Rule 36 (b) does give the trial court power and discretion to permit withdrawal of an admission. The rule states that “any matter admitted. . . is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”
The result, however, must be affirmed in this case. The trial court deemed the non-verified Requests for Admissions to be admitted because the response was 18 days late. The rule provides that the “matter is admitted unless, within 30 days after service of the requests, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or his attorney. . .” (emphasis added). The policy of this court through the years has been to require compliance with the rule governing responses to requests for admissions. Barnett Restaurant Supply, Inc. v. Vance, 279 Ark. 222, 650 S.W.2d 568 (1983), citing Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980); White River Limestone Products Co. v. Mo. Pac. Rd. Co., 228 Ark. 697, 310 S.W.2d 3 (1958). If the responses are not on time or are faulty for some other reason, such as not being signed by the parties or being inadequate and deficient, this court has made it a practice of deeming the requests to be admitted. Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980). However, we do examine the particular facts of each case and, when the facts warrant, require acceptance of late responses. For example, in Gatlin v. Cooper Tire and Rubber Co., 252 Ark. 839, 481 S.W.2d 338 (1972), we reversed the trial court and held that a response which was three days late should have been accepted because the complaint was amended after the request was filed. In the case at bar, however, the eighteen day delay was inexcusable and the trial court quite properly deemed the requests admitted.
Affirmed. | [
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George Rose Smith, Justice.
The petitioner, Joe Edwards, was found guilty of criminal contempt of court and was sentenced to a $500 fine and 90 days in jail. Execution of the sentence was superseded to permit Edwards to seek a review by this petition for a writ of certiorari. The controlling question is whether Edwards was given sufficiently specific notice of the charge against him. We find the notice deficient and accordingly grant the writ and remand the cause for further proceedings.
A Springdale bank brought an action in replevin against Edwards to recover hundreds of items of personal property or fixtures to which the bank had acquired title by a foreclosure against a third person and which were at least in part in a building owned by Edwards. Exhibit A to the bank’s affidavit for delivery listed the items, in 54 different categories. The court entered three preliminary orders, two of which directed Edwards not to remove from-the court’s jurisdiction, damage, conceal, or sell any of the property listed on Exhibit A. Those are the orders giving rise to the present contempt proceeding.
The bank tried to take Edwards’s discovery deposition, but he refused to say whether he had sold any of the property in issue. The bank moved for an order to compel Edwards to answer such questions. At the hearing on that motion it became apparent that Edwards may have violated the court’s preliminary orders. The facts not being clear, the trial judge asked the bank’s attorney if he had evidence that a court order had been violated. The attorney said he could subpoena a witness to make that proof. The trial judge then entered an order directing Edwards to appear on a certain date to show cause why he should not be held in contempt “for violation of the lawful orders of this Court.”
At the contempt hearing four weeks later Edwards’s attorney admitted having had a reasonable time to prepare his defense, but he objected at the outset to the absence of any pleading asking the court to hold Edwards in contempt. The bank’s attorney answered that the court’s order to show cause was sufficient under the Henderson and CarlLee cases, infra. The court overruled the defense objection, apparently considering the order to show cause to be sufficient notice. Five witnesses testified at the hearing, at the conclusion of which the trial judge announced his decision and fixed the sentence.
A citation for criminal contempt is not unlike an information filed by the prosecutor in a criminal case. Such a contempt proceeding is usually based upon a litigant’s affidavit, but it may also be initiated by the coürt’s own order. In either case the charge must be in writing and must be sufficiently definite to inform the accused person with reasonable certainty of the charge against him. Henderson v. Dudley, 264 Ark. 697, 704, 713, 574 S.W.2d 658 (1978); Howell v. State, 257 Ark. 134, 514 S.W.2d 723 (1974); Roberts v. Tatum, 171 Ark. 148, 283 S.W. 45 (1926); CarlLee v. State, 102 Ark. 122, 143 S.W. 909 (1912).
Here the only written accusation was that Edwards had violated the court’s “lawful orders.” No doubt that language incorporated the earlier orders by reference, as in Henderson, but the orders broadly restrained Edwards from removing or damaging or concealing or selling hundreds of separate items. There was no specific written charge of a particular violation of the orders. Granted that Edwards may have been on notice at the first hearing that he was suspected of having sold some unspecified items among those listed on Exhibit A, we adhere to our settled rule that in fairness there should have been a reasonably specific written charge. Here it does not appear that the trial court knew just what violation had occurred until after the second hearing, at the close of which Edwards was held in contempt. The absence of the required specific notice invalidates the court’s finding of contempt.
The trial court correctly denied the petitioner’s request for a jury trial. Such a trial is mandatory only when the possible imprisonment may exceed six months. Taylor v. Hayes, 418 U. S. 488 (1974). Here the trial judge was aware of that limitation and imposed only a 90-day sentence. We point out that the better practice in cases of criminal contempt is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed. If the judge does not contemplate the imposition of a greater sentence, a jury is not necessary; otherwise one may be demanded.
The writ is granted, reversing the trial court’s judgment, and the cause is remanded for further proceedings. | [
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Darrell Hickman, Justice.
The appellant’s convictions for first degreé battery and manufacturing a controlled substance with intent to deliver were affirmed by the Court of Appeals. Coston v. State, 10 Ark. App. 242, 663 S.W.2d. 187 (1984). Without seeking permission from this court, the appellant filed a petition for post-conviction relief in the trail court alleging ineffective assistance of counsel. After a hearing on the petition, the trial court denied relief. This is an appeal from that ruling.
We are dismissing the appeal because appellant failed to adhere to A.R.Cr.P., Rule 37.2(a), which provides:
If the conviction in the original case was appealed to the Supreme Court, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.
After the State pointed out appellant’s failure to comply with that rule, appellant responded with a reply brief and a “Motion for Permission to Proceed under A.R.Crim.P. 37, Nunc Pro Tunc.” In both he concedes that no permission to proceed was sought from us but, in his reply brief, contends that no such permission was needed since his original appeal was not to the Supreme Court. That argument reflects a strained reading of the rule and ignores the fact that once a case is appealed, the trial court’s jurisdiction is lost and cannot be regained without our permission. See Mitchell v. State, 232 Ark. 371, 337 S.W.2d 663 (1960). Rule 37.2(a) clearly limits the jurisdiction of the trial court in post-conviction proceedings. See Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). The petition to proceed is absolutely required. Knappenberger v. State, 278 Ark., 382, 647 S.W.2d 417 (1983). The petition must be reviewed by us to determine if it has merit. If it does not state grounds a hearing is not in order. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).
Nor can we consider appellant’s petition to proceed nunc pro tunc, because we cannot grant jurisdictional relief nunc pro tunc. Moreover, the petition, if we were to consider it, would be denied because it states no grounds at all for post-conviction relief. A.R.Cr.P., Rule 37.2(b); Ford v. State, 278 Ark. 106, 644 S.W.2d 252 (1982). The improperly pursued appeal, and the appeal brief which may state grounds for relief, cannot be bootstrapped to the untimely peition in order to correct appellant’s procedural errors.
The appeal is dismissed. The appellant has three years from the date of judgment to file a proper petition in this court. A.R.Cr.P., Rule 37.2(c).
Dismissed.
Purtle, J., dissents.
Dudley, J., not participating. | [
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George Rose Smith, Justice.
In 1936 A.W. Alston died intestate, survived by five children and the descendants of a deceased child. In 1937 Alston’s heirs divided his 2,943.75 acres of land in Franklin County, by agreement. The surface interest was allotted in specific shares by an exchange of warranty deeds, with Ashley Alston receiving the 708 acres involved in this suit. That part of the agreement dividing the minerals, however, was decidedly ambiguous. Several producing gas wells were drilled on different tracts from time to time, but the descendants divided the royalties amicably by signing for each well a division order by which the royalties were shared by the six branches of the family in six equal parts. Through the years almost all the 2,943.75 acres has remained in the Alston family.
In 1982 the appellees, John Harold Alston and his wife, had acquired from the other descendants of Ashley Alston their entire interest in the 708 acres allotted to Ashley (John Harold’s father). The appellees then brought this suit in equity against the members of the other five branches of the family, alleging that the 1937 agreement dividing the mineral ownership had expired by its terms or was otherwise void. The plaintiffs asked that they be declared to be the sole owners of the minerals underlying the 708 acres in question.
After an extended trial the chancellor held that the central issue had been decided in 1952 in an earlier suit, which was res judiata. The chancellor held that the 1937 agreement, as construed in the 1952 suit, had the effect (1) of vesting an undivided half of the minerals in each tract in the particular child (or the chidren of the one deceased child) who received the surface interest in that tract, and (2) of leaving the other undivided half of the mneral ownership in the entire 2,943.75 acres undisturbed, so that the Alston heirs continued to be tenants in common of that half interest. Some members of the family have acquiesced in the chancellor’s decree, but others have taken this appeal, which conies to us under Rule 29(l)(n).
We quote the pertinent language in the 1937 agreement, which was signed on the same date the deeds were exchanged and must be read together with those deeds:
An Agreement As To the Division Of Rentals And/Or Royalties
Under this agreement, each of the six heirs at law of A.W. Alston, deceased, shall share equally in all rentals derived from any lease now existing upon any part of the lands belonging to the said A.W. Alston estate, or from any future lease granted upon such lands by any one of the said six heirs. In addition, it is further agreed that any royalty which may arise in the future, shall also be equally dividing among the six heirs, whether such rentals or royalties shall be derived from oil, gas or other minerals lying in and under said lands or any part thereof.
It is further agreed that none of the said six heirs shall sell any part of the land this day divided, without reserving an undivided one-half interest in and to all oil, gas, coal or other minerals lying in or under the land conveyed, which one-half interest so reserved shall be shared in equally by all of the said six heirs. . .
The detailed 23-page 1952 decree was rendered in a suit brought by Arkansas Western Gas Company, the holder of an oil and gas lease on some of the Alston property. All the Alston descendants were parties to the case. Their various interests were determined, that being the purpose of the suit. The court found that the 1937 “Alston Agreement,” which we have quoted, was valid and was binding on all the Alston heirs. The court also found, with respect to 240 of the 708 acres new in issue, that members of the Ashley Alston branch of the family then owned “an undivided 7/12th interest” in the minerals in the 240 acres that were included in the plaintiff’s lease. (The appellees’ brief quotes the 1952 decree as having referred to an undivided “7 l/2ths” interest instead of “7/12ths,” but such an obvious typographical error, if it occurred, would properly by corrected by a court construing the language in the decree. See Murphy v. Cook, 202 Ark. 1069, 155 S.W.2d 330 [1941].)
The court’s finding in 1952 that the Ashley branch of the family owned an undivided 7/12ths of the minerals is readily understandable. The Alston Agreement provided that past áhd future royalties would be shared equally, with the further provision that thereafter none of the six heirs should sell any part of the land without reserving an undivided one-half interest in the minerals, to be shared equally by all six. A reasonable implication of that proviso, evidently accepted by the court in 1952, is that the owner of a particular tract was free to dispose of an undivided half of the minerals for his own benefit, but the other half was to belong to the six branches of the family together. Hence each one of the six surface owners had a one-half interest in the minerals within his allotted land and also had his one-sixth shdie of the family interest in the other half, making a 7/12ths Ownership altogether. All the Alston descendants having been parties to the 1952 suit, the court’s interpretation of the Agreement binds them under the principle of res judicata.
The appellants argue, however, that since the entire Alston family joined several times in the execution of division orders that impliedly recognized 100% family ownership in all the minerals rather than in only half, that practical constuction of the 1937 Agreement should be regarded as conclusive or as a basis for an estoppel. It is true, as we held in the case cited by appellants on this point, that when “a question of doubtful construction arises,” the courts will generally follow the parties’ own interpretation of the contract. Temple Cotton Oil Co. v. Southern Cotton Oil., 176 Ark. 601, 3 S.W.2d 673 (1928). Here, however, the 1952 decree settled all possible doubts by giving an exact meaning to the words in the Agreement. That interpretation is binding upon all concerned.
Affirmed. | [
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John I. Purtle, Justice.
The trial court overruled appellant’s motion to suppress evidence he alleged was obtained in violation of his Fourth Amendment rights. He was found guilty of possession of a controlled substance with intent to deliver and was sentenced to a term of forty years imprisonment. For reversal appellant argues: 1) evidence received and admitted was obtained in violation of his rights under the Fourth Amendment to the Constitution of the United States; 2) the sentence is excessive under the circumstances of this case; and 3) the court erred in failing to admonish the jury regarding inflammatory statements by the prosecutor in closing argument. We hold that the trial court erred in admitting evidence which should have been suppressed.
Sometime prior to appellant’s arrest on June 13, 1983, the Arkansas State Police and The Federal Drug Enforcement Administration had appellant’s home in Batesville, Arkansas, under surveillance because it was suspected he was dealing in cocaine. Observation and photographs produced probable cause neither for a search of appellant’s residence nor fbr his arrest. About 7:30 p.m. on June 13, 1983, Agent Jim Stepp with the DEA requested Sgt. J. R. Howard of the Arkansas State Police to go to appellant’s residence to determine if there were any illegal aliens there. Another state trooper and two deputy sheriffs joined Howard en route to appellant’s home. Upon arrival the three occupants of the house where appellant resided were outside in the yard. Appellant’s brother was in the front yard and appellant and his mother were in the back yard. Sgt. Howard encountered the brother in the front yard and other officers encountered appellant and his mother in the back yard. Although the parties at the house stated there were no more people in the house, they nevertheless consented to the officers’ entry of the house to look for other illegal aliens. Appellant’s mother and brother were determined to be in this country illegally and were turned over to the Border Patrol which was contacted after appellant’s arrest.
While the officers were in the house searching for aliens Sgt. Howard observed a set of num-chuks near a bedroom door. Stating the num-chuks were illegal weapons the officers then requested to search the house for other illegal weapons or contraband. None of the residents of the house could read or write English. Sgt. Howard then wrote out a consent to search and obtained appellant’s signature. The consent stated: “I, German Guzman, voluntarily give Sgt. J. R. Howard, Arkansas State Police, and Trooper Carroll Seaton, Arkansas State Police, permission to search my residence at 2240 Byers Street in Batesville, Arkansas.” After obtaining the written consent the officers searched the premises. In a bedroom closet they found an open box which contained a set of small scales. The scales could be used to weigh cocaine but were not manufactured for that purpose. The scales could be used for weighing gunpowder or any similar substance. A white powder was found in the cup on the scales which is used for weighing powder and other material. The officers decided the white powder was cocaine. The parties were arrested and allowed to change clothes. In the process, appellant was seen trying to conceal several packets of cocaine which weighed in the aggregate 4.5 grams.
On the date of appellant’s arrest there were several arrests of other Columbian nationals by the DEA in Little Rock as part of an ongoing investigation relating to cocaine sales. Sgt. Howard’s report of appellant’s arrest stated he had gone to the house to "investigate possibility of illegal aliens having possession of narcotics.”
If the consent to search appellant’s home was given voluntarily the evidence obtained by the search is admissible. However, if it was not voluntarily given the evidence should be suppressed. It is undisputed that appellant’s home had been observed and photographed as a part of a much larger investigation concerning Columbian nationals dealing in cocaine. No probable cause existed for appellant’s arrest nor for a search of his home. His arrest occurred on the same day other Columbian nationals in Arkansas were arrested on drug charges. Sgt. Howard’s report stated he went to appellant’s home to investigate the possibility of aliens having possession of narcotics. It is clear that if the purpose of the officers’ visit to the appellant’s home was to discover illegal aliens, such purpose ended well before the num-chuks were found. There is no evidence the num-chuks were illegal weapons.
The Fourth Amendment to the United States Constitution was to prohibit the dreaded general searches which had existed prior to the adoption of the Bill of Rights in 1791. United States v. Lefkowitz, 285 U.S. 452 (1932). In Lefkowitz it was held that an arrest may not be used as a pretext to search for evidence. There has been a tendency by the various courts, including the United States Supreme Court, to relax the exclusionary rule. However, there is no indication by any court that the rule as it relates to searches of homes is being relaxed. The United States Supreme Court held in Welsh v. Wisconsin, _ U.S. _, 104 S.Ct. 2091 (1984) that the Fourth Amendment prevents warrantless arrests in the home unless there is probable cause and exigent circumstances. In quoting from Payton v. New York, 445 U.S. 573 (1980) the Welsh Court said:
It is not surprising, therefore, that the court has recognized, as “a ‘basic principle of Fourth Amendment law [,]’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”
“A search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show . . . the presence of ‘exigent circumstances’.” Welsh, supra; Coolidge v. New Hampshire, 403 U.S. 443 (1971).
The Fourth Amendment guarantee against general searches applies to the guilty as well as the innocent. At the time of a search the suspect is presumed innocent. To decide the issue of reasonableness after the fact would render the Amendment meaningless. The right of privacy is one of the fundamentar values of our civilization. It can neither be treated lightly nor trod upon. If the Fourth Amendment is to protect the fundamental right of the people in America to remain secure in their homes there must be sanctions against the violation of this sacred right. The sanction applied for violation of this right is the suppression of evidence illegally obtained. Absent exigent circumstances the Fourth Amendment interposes a judicial officer between citizens and the police. Exigent circumstances must be compelling to override the rights of the people. This is not done to protect criminals or to allow houses to be used for illegal purposes. This restraint is imposed in order that an objective mind is utilized to weigh the reasons before one’s home is invaded by uninvited police. A man’s home is still his castle. The right to this protection is too valuable to entrust to those who are charged with the duty of apprehending criminals and whose duties also require them to locate evidence to prove the guilt of suspects. In McDonald v. United States, 335 U.S. 451 (1948), the Court stated:
Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that Constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.
The Fourth and Fourteenth Amendments require that consent to search a home cannot be coerced, explicitly or implicitly, or by threats whether implied or overt. A warrantless search of a home may be the least obnoxious or objectionable thing to some but it is generally illegal and uncontitutional. Most unlawful practices commence with slight intrusions which are usually silent and unnoticed at first but subsequently depreciate constitutional rights in a much more devastating form. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Boyd v. United States, 116 U.S. 616 (1886). In Schneckloth the Court explained the problem of reconciling the divergent interests relating to the Fourth Amendment. In considering the voluntariness of a consent to search the Court considered the totality of the circumstances when it stated:
In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. In sum, there is no reason for us to depart in the area of consent searches, from the traditional definition of “voluntariness.”
This court has been no less diligent than the United States Supreme Court in protecting the Constitutional rights of the citizens. We have held that consent to a warrantless search of one’s home must be given freely and voluntarily. Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979); King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). Our position on this issue was stated in Smith, supra, as follows:
The State, as it should, bears a heavy burden to prove that a warrantless search is voluntary... That burden is to prove by clear and positive testimony that [the] consent was freely and voluntarily given... On appeal, we made an independent determination considering the totality of the circumstances to see if the State has met its burden.
We held that the search of Smith’s home was illegal because he was arrested under pretext. The officers arrested Smith on a hot check charge but while waiting for him to dress they obtained his consent to search and almost immediately located stolen property which was the real object of their search in the first place. In the present case appellant had been under suspicion as a participant of Columbian nationals who were dealing in cocaine in Arkansas. His home had been under surveillance for several weeks but no cause for a warrant had been found. In fact it is admitted there existed no probable cause to issue a warrant at the time Sgt. Howard and three other officers were dipatched to see if illegal aliens were present at appellant’s residence. Howard’s report reflects that he went there to investigate the possibility of “illegal aliens having possession of narcotics.” Upon arrival the officers found all three occupants of appellant’s home were in the yard. They were informed by the three persons that there were no other people in the house. Still the officer obtained permission to search the house for “other aliens.” Finding no other “aliens” the officers did observe a set of num-chuks in one of the bedrooms and informed appellant they wanted permission to search for other illegal weapons. It is disputed as to whether the officers informed appellant they wanted to look for drugs also. Having no consent forms the officers wrote out a general search form as follows: “I, German Guzman, voluntarily give Sgt. J.R. Howard, Arkansas State Police, and Trooper Carroll Seaton, Arkansas State Police, permission to search my residence at 2240 Byers Street in Batesville, Arkansas.” The consent which appellant signed had no restrictions. They located a small box in a bedroom closet containing a pair of scales which could be used for weighing cocaine. The scales could also be used to weigh gunpowder or aspirin or thouands of other items which are lawful and legal. None of the Guzman family could read or write English. They conferred in Spanish in the presence of the four officers and came to the conclusion that appellant had no choice but to sign the consent to search.
The burden was upon the state to prove by clear and positive testimony that consent for the search of appellant’s home was freely and voluntarily given. When the defendant is in custody the burden on the state is particularly heavy. Consent free and clear of fear or coercion under the circumstances of this case does not occur frequently. Considering the totality of the circumstances we cannot find that exigent circumstances and probable cause existed. Therefore, we must hold that the items seized as a result of the illegal search should have been and must be suppressed.
Reversed and remanded. | [
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Jim Hannah, Chief Justice.
Appellant Frank Myers appeals the order of the White County Circuit Court finding that appellees David and Venice Yingling are the rightful owners of a tract of land situated in White County. The court of appeals certified this case to this court to resolve a significant issue concerning jurisdiction; thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b) and (d). Specifically, the court of appeals certified the following question: Does filing a notice of appeal from an unappealable order and subsequently lodging the record in the appellate court bar the circuit court from acting further until the appellate court formally dismisses the appeal? We answer this question in the affirmative.
In order to address the certified question, we must look at the procedural history of this case. The relevant facts — as related to the question of jurisdiction — involve two orders and two distinct appeals. On October 10, 2005, the circuit court entered its first order, entitled “Findings of Fact and Law,” wherein the circuit court concluded that the Yinglings had acquired certain property from Myers by virtue of acquiescence. In this order, the circuit court included the following paragraph: “Plaintiffs did not introduce a description of the area being claimed. Plaintiffs have 45 days in which to submit a description.” Myers appealed from this order on November 7, 2005, and the record was lodged with the court of appeals on February 2, 2006. Subsequently, on February 16, 2006, the circuit court entered a second order, entitled “Order and Decree” that added a particular and specific legal description of the land at issue. Myers then filed a second notice of appeal on March 6, 2006. In addition, Myers objected to the entry of the second order, on grounds that the circuit court was without jurisdiction, and filed a motion to strike with the circuit court. Myers then supplemented the appellate record with the second order and pleadings regarding the motion to strike.
We begin by looking at the first order, which, as previously stated, does not contain a legal description of the property at issue. In Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997), we stated:
Under Rule 2(a) (1) and (2) of the Appellate Procedure - Civil, an appeal may be taken from a final decree entered by the chancery court and an order which in effect determines the action and prevents a judgment from which an appeal might be taken from, or discontinues the action. We have interpreted this portion of Rule 2 to mean that, for an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Doe v. Union Pac. R.R. Co., 323 Ark. 237, 914 S.W.2d 312 (1996). The order must be of such a nature as to not only decide the rights of the parties, but also put the court’s directive into execution, ending the litigation or a separable part of it. Id.
In a long line of cases, this court has held that a chancery court’s decree must describe the boundary line between disputing land owners with sufficient specificity that it may be identified solely by reference to the decree. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993); see also Harris v. Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991); Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970); McEntire v. Robinson, 243 Ark. 701, 421 S.W.2d 877 (1967).
Petrus, 330 Ark. at 725, 957 S.W.2d at 689.
Further, we observed:
While the chancellor and the parties apparently intended to resolve the boundary lines via a future survey, the permanent record in a boundary-line decision should describe the line with sufficient specificity that it may be identified solely by reference to the order. See Harris, 306 Ark. at 261; Riddick, 313 Ark. at 712. Otherwise, leaving those lines to be established by a future survey may likely result in additional disputes, litigation, and appeals. Again, the case law that requires a chancery decree to fix and describe the boundary lines in a dispute between landowners discourages piecemeal litigation. McEntire, 243 Ark. at 704.
Id. at 726, 957 S.W.2d at 689-90.
Here, the October 10, 2005 order does not include a legal description of the property because the plaintiffs had failed to submit such a description. As such, the order is not a final, appealable order. Despite this fact, however, Myers appealed the order and subsequently lodged the record with this court on February 2, 2006.
We now turn to the second order. After the record was already lodged with this court, the circuit court entered the order dated February 16, 2006. We hold that the circuit court had no jurisdiction to enter the second order. Once the record is lodged in the appellate court, the circuit court no longer exercises jurisdiction over the parties and the subject matter in controversy. See Gore v. Heartland Cmty. Bank, 356 Ark. 665, 158 S.W.3d 123 (2004). Certainly, circuit courts have continuing jurisdiction to correct records in order to make them speak the truth; however, the circuit court loses jurisdiction to act further in the matter once the record is lodged in the appellate court. See id. (citing Davie v. Smoot, 202 Ark. 294, 150 S.W.2d 50 (1941)). In the October 10, 2005 order, the circuit court contemplated further action, as evinced by the circuit court’s directing the plaintiffs to submit a legal description of the property within 45 days. However, once Myers lodged the record on February 2, 2006, the circuit court no longer had jurisdiction to act further in the matter. Actions taken by a court without jurisdiction are null and void. Villines v. Harris, 362 Ark. 393, 208 S.W.2d 763 (2005). Thus, the circuit court’s second order, entered on February 16, 2006, is void, and an appeal from that order must be dismissed.
Appeal dismissed without prejudice.
The circuit court’s entry of a controverted legal description could hardly be described as merely ministerial, supplemental, or collateral, such that it might be allowed pursuant to Ark. R. App. P.-Civ. 6(e), which provides in relevant part: If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the circuit court before the record is transmitted to the appellate court, or the appellate court on motion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. | [
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Annabelle Clinton Imber, Justice.
Appellant Timothy Boyd brings the instant appeal from his convictions of one count of capital murder and three counts of aggravated assault. He was sentenced to life imprisonment for the capital-murder conviction and to a six-year sentence for each of the aggravated-assault convictions, to be served concurrently with the life sentence. On appeal, Boyd raises two points of error: (1) the circuit court erred in denying his directed-verdict motion because the evidence was not sufficient to prove the mens rea element of capital murder, and (2) the circuit court erred in allowing the State to mischaracterize how the transition between a charged offense and lesser-included offenses should be addressed during jury deliberations. We find no error and affirm.
Boyd and the victim, Andrea Martin, pursued a ten-year relationship from the time they were teenagers until Martin’s death. In 2003, they moved to Little Rock from their hometown of Crossett. During the summer of 2005, the relationship ended, and Martin moved out of the apartment she shared with Boyd on Reservoir Road. A few weeks later, she rented an apartment in a different complex of apartments on the same street. Just prior to the breakup, Martin’s friends and co-workers noticed she had a black eye.
On the evening of July 15, 2005, Martin threw a housewarming party at her new home and invited family and coworkers. As the party wound down, Martin’s co-workers, Jennifer Johnson and Chastity Savannah, made their way to the parking lot and began talking. Martin’s apartment was in a split-level building located on a steep slope. From the parking lot where the two women were standing, they could see into another parking lot below. After about thirty minutes, Johnson and Savannah saw Boyd pull his car into the lower parking lot and climb a flight of stairs toward Martin’s apartment. Worried about Martin’s safety, Johnson called Martin to warn her that Boyd was approaching.
A few minutes later, Johnson and Savannah heard Martin screaming and saw Boyd chasing Martin as she ran around the corner of the building. Martin tumbled down the nearby slope and began begging Boyd not to hurt her. Fie grabbed her and began beating her in the head with a pistol. He then fired one shot into the ground and began dragging Martin toward her apartment while holding a gun to her head. As he passed by Johnson and Savannah, Boyd pointed his gun at the women and ordered them to leave. Savannah left, and Johnson hid behind a nearby dumpster and called 911.
Meanwhile, Chandra Watson, who also lived in the apartment complex, came outside and tried to reason with Boyd. She had known Boyd and Martin in Crossett. Boyd told Watson that he was going to kill Martin, and he threatened to kill her also if she did not leave him alone. Boyd next proceeded to drag Martin down a flight of stairs to the level below her apartment. Shots were then fired, and Martin stopped screaming.
Within minutes, police officers arrived and converged on Martin’s apartment. As the officers approached the door to the apartment, which was open, they identified themselves and yelled for anyone inside to “come out with your hands up.” Upon hearing Boyd’s voice from the stairwell below, saying, “No, I want to call my brother,” the officers moved toward the top of the stairwell and saw Boyd crouching over Martin’s body with a pistol in one hand and a cellular phone in the other. The officers identified themselves again and asked him to drop his gun. He refused and repeated that he wanted to call his brother. The officers asked him again to drop his weapon. Instead of complying, Boyd stood up and raised his gun toward the officers, whereupon they opened fire, shooting Boyd twice.
Boyd was charged with one count of capital murder for the death of Martin and three counts of aggravated assault in connection with the threats directed at Johnson, Savannah, and Watson. At trial, the medical examiner, Dr. Daniel Konzelman, testified that Martin sustained several gunshot wounds. She died of one close-range gunshot to her face, which passed through her neck, lacerating her spinal cord. Martin also sustained two other close-range gunshot wounds to her abdomen and chest. One long-range gunshot left four wounds in her leg. In addition to those wounds, Martin suffered small abrasions and scrapes all over her body and a laceration under her chin that was caused by a blow from a blunt object, possibly a pistol.
Watson also testified for the State. She stated that a few days before the shooting, Boyd came to her work and told her that he wanted to kill Martin because she was sleeping with another man. Stacy Walker testified that she began a romantic relationship with Boyd after he and Martin broke up. Shortly before the shooting, Boyd told Walker that Martin was seeing another man, which made him want to shoot Martin and her new lover. Ebony Henderson testified that she visited Boyd on the day before the shooting because he was “suicidal.” While she was with him, Boyd allegedly told Henderson that he had a plan to go to Martin’s apartment, shoot Martin and her lover, and force the police to shoot him when they arrived.
Boyd took the stand in his defense and testified that he and Martin had a good relationship before the breakup and that he was hoping to reconcile with her. He alleged that a few days before the shooting Martin left him a voice message in which he heard her having sex with another man. Nevertheless, he insisted that he was joking when he told Watson and Walker that he planned to kill Martin.
Boyd asserted that on the night of the shooting, he had been drinking heavily at a friend’s house. Then, he was going to his sister’s home, which was located in a rough part of town, so he stopped at his apartment and picked up his gun. On the way to his sister’s, Boyd dropped by Martin’s home for a visit, but Martin became hysterical when she saw his gun. According to Boyd, Martin fell as she ran away from him, and he helped her get up. By that time, such a commotion had ensued that Boyd fired a shot into the ground in order to get her friends to be quiet. He and Martin began to walk toward her apartment, but when Boyd realized that the police were coming, he took his gun out of his pocket for the purpose of hiding it. As related by Boyd, Martin reached for the gun three times, and each time the gun fired, culminating in three separate gun shots. Boyd also testified that he did not refuse to drop his gun; rather, the police just opened fire on him without reason.
After he was found guilty on all counts, Boyd waived sentencing by the jury. The circuit court sentenced him to a term of life imprisonment for the capital-murder conviction and seventy-two (72) months for the aggravated-assault convictions, to be served concurrently with the life sentence.
Sufficiency of the Evidence
For his first point on appeal, Boyd argues that the State did not present sufficient evidence to prove that he had the requisite mens rea to commit capital murder. Specifically, he claims that Martin was shot accidentally. This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). 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.
A person commits capital murder if “[w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2006). The necessary premeditation and deliberation is not required to exist for a particular length of time and may be formed in an instant. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). This court has long acknowledged that intent can rarely be proven by direct evidence. Id. However, a jury may infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused. Id. In addition, we have affirmed capital-murder convictions when a defendant made past statements about his desire to kill the victim. See Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998).
Here, the jury heard evidence that Boyd shot Martin three times at close range and that she died of a fatal gunshot wound to the head. While Boyd asserts that the shots were fired accidentally and he did not intend to hurt Martin, the testimony of other witnesses indicates otherwise. Johnson, Savannah, and Watson testified about Boyd’s threatening behavior immediately prior to the shooting — namely, he pistol-whipped Martin and dragged her around the apartment complex with a gun to her head, and he told the witnesses he would also kill them. Furthermore, three witnesses testified that, on three separate occasions, Boyd said he wanted to kill Martin. The duty of resolving conflicting testimony and determining the credibility of witnesses is left to the discretion of the jury. Bums v. State, 323 Ark. 206, 913 S.W.2d 789 (1996). Additionally, the jury is entitled to disbelieve any portion of a witness’s testimony, including that of the accused. Winston v. State, 368 Ark. 105, 243 S.W.3d 304 (2006). Accordingly, we conclude that there was sufficient evidence to support the jury’s verdict.
Deliberation of Lesser-included Offenses
Boyd’s second point on appeal concerns a portion of the prosecutor’s remarks during closing argument in which he explained how the jury should consider lesser-included offenses during deliberations. The prosecutor said in part:
Beneath the capital murder cup is murder in the first degree. The only way that you ever look at the law or try and apply the facts to the murder in the first degree instruction is if all 12 of you decided that he’s not guilty of capital murder.
Defense counsel objected to the prosecutor’s remarks as being an improper mischaracterization of the law. He argued that the jurors were not required to reach a unanimous decision to acquit Boyd of capital murder before they could consider the lesser-included offense of first-degree murder. Instead, he claims, if any of the jurors were unable to agree on a verdict as to the charged offense of capital murder, they could proceed to consider the lesser offense.
The instruction given by the circuit court was AMI Criminal 2d 302, Lesser Included Offenses: Transitional Instruction, which states, “[i]f you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will then consider the charge of murder in the first degree.” Boyd contends that the word “you” in the instruction can be used in either a plural form, to indicate the entire jury panel, or a singular form, to indicate one juror. He asserts on appeal that the instruction in question should be interpreted as using the singular form, and, therefore, the jury is not required to reach a unanimous decision on a charged offense before considering a lesser-included offense.
In essence, Boyd argued below and now argues on appeal that the meaning of the term “you” in AMI Criminal 2d 302 is ambiguous. It was incumbent upon him to proffer an additional instruction in order to clarify a purported ambiguity in the instruction. See Ark. R. Crim. P. 34.1 (2006). Yet, Boyd failed to proffer an instruction containing what he saw as a correct statement of the law on the proper interpretation of the term “you” in AMI Criminal 2d 302. Boyd’s counsel simply challenged the prosecutor’s explanation of the instruction. This failure to proffer an additional instruction precludes us from considering Boyd’s argument on appeal. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Orsini v. State, 284 Ark. 348, 655 S.W.2d 245 (1984).
Rule 4-3(h) Review
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Boyd, and no prejudicial error has been found. Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).
Affirmed. | [
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Jim Gunter, Justice.
This appeal arises from a declaratory-judgment order from the White County Circuit Court denying a motion for summary judgment filed by appellant, White County, and declaring, pursuant to Ark. R. Civ. P. 57 (2006), that Ark. Code Ann. § 16-17-129 (Supp. 2005), as amended, is not ambiguous. On June 18, 2003, the White County Quorum Court enacted Ordinance 2003-10, which authorized the levy of an additional five dollar ($5.00) fine to help defray the expense of housing prisoners in the White County Detention Center. On appeal, White County argues that it passed the ordinance pursuant to Ark. Code Ann. § 16-17-127 (Supp. 2005). We affirm.
On June 18, 2003, the White County Quorum Court enacted Ordinance 2003-10, which authorized the levy of an additional five dollar ($5.00) fine to help defray the expense of incarceration of prisoners pursuant to Ark. Code Ann. § 16-17-129. The ordinance was enacted to alleviate the financial burden of the operation of the White County Detention Center. Appellee cities, Judsonia, Kensett, and Pangburn, are all located within White County and did not comply with Ordinance 2003-10. On August 19, 2005, White County filed a complaint for declaratory judgment to resolve the dispute as to the enforceability of Ordinance No. 2003-10 and also filed a motion for summary judgment, asking the court to declare that Ordinance 2003-10 as county law that the cities must follow.
Section 16-17-129, as originally codified in 1999, authorized only cities with populations less than 100,000 to levy and collect the $5.00 fine. Act of Apr. 12, 1999, No. 1336, 1999 Ark. Acts 5459. Act 1188 of 2003 amended this section to authorize counties to levy the same additional $5.00 fine. Act 1373 of 2005 amended this section by adding subsection (e). Qn February 27, 2006, the White County Circuit Court found that § 16-17-129, as amended, was not ambiguous and that 2003-10 did not authorize appellee cities to impose the additional $5.00 fine because the cities’ councils must first adopt the ordinance authorizing the fine. From this order, White County brings its appeal.
For its first point on appeal, White County argues that the circuit court erred in finding that ordinance 2003-10 does not authorize appellees to impose or collect the additional $5.00 fine. By Ordinance 2003-10, the White County Quorum Court ordered the district and city courts within White County to impose and collect the additional fine authorized by Ark. Code Ann. § 16-17-129. The purpose was to alleviate the financial burden of the operation of White County Detention Center. The circuit court ruled that § 16-17-129 was not ambiguous. White County agrees that the statute is not ambiguous, but disagrees with the court’s application of the statute. In response, appellees argue that while they agree with the circuit court’s ruling that § 16-17-129 does not authorize White County to order appellees to levy a $5.00 fine in their city courts, they contend the language of the statute is ambiguous. Appellees ask us to look beyond the ordinary and usually accepted meaning of the language of the code section to determine its true intent.
We review issues of statutory construction de novo, as it is for this court to decide what a statute means; thus, we are not bound by the trial court’s determination. Turnbough v. Mammoth Spring Sch. District No. 2, 349 Ark. 341, 78 S.W.3d 89 (2002). The basic rule of statutory construction is to give effect to the intent of the General Assembly. See id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. State v. Britt, 368 Ark. 273, 244 S.W.3d 665 (2006).
Ordinance 2003-10 was enacted pursuant to Act 1188 of 2003, which is codified at Ark. Code Ann. § 16-17-129 and states:
(a) In addition to all fines now or as may hereafter be provided by law, the governing body of each city of the first class, city of the second class, incorporated town, and county in this state may by ordinance levy and collect an additional fine not to exceed five dollars ($5.00) from each defendant who pleads guilty or nolo contendere to, is found guilty of, or forfeits bond for any misdemeanor or traffic violation in the municipal court or city court of the city, town, or county, or in the district court for the district in which the city or town is located.
(Emphasis added.) Act 1188 of 2003 gave counties in the state the right to levy this additional $5.00 fine. This right had been held exclusively by the cities and towns of the state since Act 1136 of 1999.
Another amendment, Act 1185 of 2003, made technical corrections to the entire body of Arkansas law in order to implement Amendment 80. Act 1185 removed the term municipal court in favor of district court because district courts became vested with the jurisdiction of municipal courts under section 19 of Amendment 80. Act 1373 of 2005 is the most recent amendment to § 16-17— 129. Act 1373 added subsection (e) stating that the fine shall apply to each charge, count, violation, or offense of defendant.
White County argues that according to the plain language of Act 1188 of 2003, it had the authority to impose the fine on appellees. White County asserts that since the municipal courts or city courts of appellees are located in White County and the $5.00 fine was levied by the Quorum Court of White County, Ordinance No. 2003-10 imposes on the municipal courts or city courts of appellees the duty to pay the additional $5.00 fine.
Appellees respond, arguing that Act 1188 of 2003 created confusion and ambiguity resulting in the present situation. Appellees rely on Attorney General’s Opinion No. 2005-017. In his opinion, the attorney general states that § 16-17-129 “authorizes a county to levy and collect, by quorum court ordinance, the additional $5.00 fine in district court only. The authority does not extend, in my opinion to city court.” Op. Att’y Gen. No. 2005-017. Appellees explain that, while it might seem at first glance that the statute authorizes the county to impose the fine on a city court, “it becomes apparent upon further analysis that ‘all courts within a . . . county in this state that has by ordinance levied the fine’ is ambiguous given the fact that a city court ordinarily is not considered a court ‘of the . . . county’.” Id. The attorney general does admit that the language of 16-17-129 could include city courts by stating: Id. The attorney general states that legislative history remains the most authoritative source on the issue, and that it is “relatively clear from the history that counties were given the same authority to levy and collect the additional fine in district (former municipal) court as was originally given to cities and towns.” Id. Appellees argue that the amendment did not authorize or expand the jurisdiction of a governing body of the county to enact an ordinance which could require an additional fine to be imposed in city courts.
I recognize in this regard that Act 1373 of 2005 restates subsection (a) of the statute as previously codified. This merely perpetuates the existing ambiguity, however, rather than resolving it. I also note that Act 1373 includes new language authorizing the fine’s imposition“[b]y all courts within a ... county...” See A.C.A. § 16-17-129(e)(2)(A), supra. While this language admittedly could encompass city courts, its broad sweep raises more questions than answers, in my opinion. It could just as easily be interpreted to mean all district courts within the county. This interpretation may be reinforced,moreover,by the title ofAct 1373, which reflects only an intent to clarify that the additional $5.00 fine applies to each offense.
We have held that attorney general opinions are not binding precedent on this court. Ark. Prof'l Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). However, we agree with appellees that the language of the statute is ambiguous. Looking at the plain language of the statute, reasonable minds could differ as to whether it limits White County to only collecting fines in district court or allows White County to collect fines in city courts as well, thereby making the statute ambiguous. See Britt, supra. The language “in the city court of the city, town, or county, or in the district court for the district in which the city or town is located” is unclear because there is no “city court of the county.” Since the statute is ambiguous, we look to the whole act including the legislative history, the language, and the subject matter involved. Ainsworth v. State, 367 Ark. 353, 240 S.W.3d 105 (2006).
Considering the act as a whole, we agree with appellees’ assertion that the legislature did not intend to authorize the governing body of a county or expand the jurisdiction of a governing body of the county to enact an ordinance which would require an additional fine to be imposed in city courts. A county is a municipal corporation. Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000) (citing City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930 (1949)). Municipal corporations are creatures of the legislature and as such have only the power bestowed upon them by statute or the Arkansas Constitution. Id. (citing Jones v. Am. Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987)). It is well settled that municipal corporations have no inherent powers and can exercise only (1) those expressly given to them by state statute or the Arkansas Constitution, (2) those necessarily implied for the purposes of, or incident to, the express powers, and (3) those indispensable, not merely convenient, to their objects and purposes. Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997). Finally, any substantial doubt about the existence of a power in a municipal corporation must be resolved against it. Id.; City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982); Town of Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (1969).
Here, it is clear that the legislature’s intent was to give counties the same authority to collect the fine in district court as the cities’ authority to collect the fine in city court. The legislature did not intend to authorize counties to collect the additional fine in city courts. We do not agree with White County’s argument that the emergency clause set out in Act 1373 of 2005 clarified the legislature’s intent for the county to collect the additional fine in city court. The emergency clause states:
It is found and determined by the General Assembly of the State of Arkansas that questions have arisen regarding the interpretation of Act 1188 of2003; that the fiscal burdens of incarcerating prisoners in city and county jails are increasing; and that this act is immediately necessary in order to provide financial relief to defray the cost of city and county prisoners. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on . . . [act was approved on March 29, 2005],
Id. This emergency clause merely states the intent of the legislature to provide financial relief to defray the cost of city and county prisoners. It does not state that counties can collect the additional fine in city court. Even with the addition of the emergency clause, we still agree with appellees that the intent of the legislature was for counties to collect the fine in district court and cities to collect the fine in city court. Keeping in mind that any substantial doubt about the existence of a power in a county must be resolved against it, we hold that the legislature did not bestow upon White County the power to collect the additional fine in appellees’ city courts, see City of Little Rock, supra, and we affirm the trial court’s ruling.
For its second point on appeal, White County argues that the circuit court erred in finding that only a local city council could authorize the collection of the additional $5.00 fine in city courts by adoption of city ordinance. Section 1 of Act 1336 of 1999 states:
In addition to all fines now, or as may hereafter be provided by law, each first class city, second class city, and incorporated town in this state may levy and collect an additional fine not to exceed five dollars... for any misdemeanor or traffic violation in the municipal court or city court of the city or town. . . The additional court fine authorized by this act shall be levied by ordinance of the governing body of the municipality where in the municipal court or city court is located.
(Emphasis added.) In Act 1185 of 2003, the above highlighted sentence was stricken and the following highlighted words added:
In addition to all fines now or as may hereafter be provided by law, the governing body of each city of the first class, city of the second class, and incorporated town in this state may by ordinance levy and collect an additional fine not to exceed five dollars ... for any misdemeanor or traffic violation in the city court of the city or town or in the district in which the city or town is located.
(Emphasis added.)
White County argues that the above amendment removed the language which gave exclusive right to the “municipality” to pass an ordinance levying the additional fine. Appellees argue that the change simplified the code section while retaining the original intent through the addition of the highlighted phrases. Appellees also assert that it would be illogical for the General Assembly to intend for some other governing body other than that specifically stated in the code section to be authorized to pass an ordinance which would require a city or town to levy this additional tax.
Act 1188 of 2003 states:
(a)(1) In addition to all fines now or as may hereafter be provided by law, the governing body of each city of the first class, city of the second class, incorporated town, and county in this state may by ordinance levy and collect an additional fine not to exceed five dollars ($5.00) from each defendant who pleads guilty or nolo contendere to, is found guilty of, or forfeits bond for any misdemeanor or traffic violation in the municipal court or city court of the city, town, or county.
(2) The additional court fine authorized by this section shall be levied by ordinance of the governing body of the municipality or county wherein the municipal court or city court is located.
(Emphasis added.) Appellees argue that it is clear that the General Assembly intended the additional fine to be levied by ordinance of the governing body of the municipality (city) or the governing body of the county wherein the municipal court (district court) or city court is located. In its reply brief, White County asserts that it does not dispute the authority of a city or town to avail itself of the revenue raising mechanism provided by the law, but argues that Arkansas counties are likewise empowered. White County argues that the Arkansas General Assembly has specifically authorized the cities to collect a $5.00 fine and the counties to collect an additional $5.00 fine. We disagree.
Ordinance 2003-10 was enacted pursuant to Act 1188 of 2003, and although we agree that this language is confusing, we hold that the intent of the General Assembly was to give counties the authority to levy and collect the additional fine in district court, the same way it gave cities the authority to levy and collect the additional fine in city court. When a statute is ambiguous, we look to the whole act including the legislative history, the language, and the subject matter involved. See Ainsworth, supra. Looking at the entire act, we hold that the intent of the statute was not to give counties the authority to levy and collect additional fines in city courts; therefore only city ordinances adopted by the appellees’ city councils could authorize the additional fine. Keeping in mind our de novo standard of review, we hold that the circuit court did not err in finding that only a local city council could authorize the collection of the additional $5.00 fine in city courts by adoption of a city ordinance. Accordingly, we affirm the circuit court’s ruling.
Affirmed.
Hannah, C.J., and Imber, J., not participating. Special Justices Hill and Mayton join. | [
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Jim Gunter, Justice.
Appellant, Marvin M. Mhoon, appeals the Drew County Circuit Court’s rulings denying appellant’s motion in limine to prohibit the introduction of his breathalyzer test results into evidence, overruling appellant’s objections to the introduction of the breathalyzer results, and refusing to take judicial notice of the Arkansas Regulations for Alcohol Testing. We reverse and remand for a new trial.
On November 24, 2003, appellant was pulled over for speeding by Officer David Wesson of the Drew County Sheriffs Department. When Officer Wesson approached Mhoon’s vehicle, he noticed that appellant had blood on his face. Officer Wesson then realized that appellant’s vehicle matched the description of a vehicle belonging to a person reportedly involved in a fight at All Star Sports Bar earlier in the evening. Officer Wesson asked appellant if he had been drinking, and appellant stated that he had consumed a few beers and played pool. After asking appellant if he needed medical attention, which appellant declined, Officer Wesson performed three field-sobriety tests on appellant. The tests administered involved: the one-legged stand test where appellant was asked to stand on one leg and count; the finger-to-nose test where appellant was asked to hold his arms to his side and touch his nose with the point of his index finger; and the reverse counting test where appellant was asked to use his fingers to count one-to-five and five-to-one until instructed to stop. Appellant failed all three tests and was taken to the county detention facility. Officer Wesson called Officer Rickey Rausch from the Monticello Police Department to administer the blood alcohol test on appellant. Appellant signed the DWI/DUI statement of rights after checking on the form that he understood all parts of the rights; that he agreed to take the breathalyzer test; and that he did not want an additional test at his own expense. Officer Wesson then observed appellant for a period of time, and in that time, appellant’s burping negated the test. Officer Wesson testified that he had to wait twenty minutes before he could resume his observation. After the observation, Officer Rausch administered the breath test to appellant. The results of the breathalyzer test showed that appellant had a blood alcohol level of 0.119%. Officer Wesson wrote a citation to appellant for speeding and DWI.
On February 23, 2006, a jury found appellant guilty of DWI in the Drew County Circuit Court. In an in-chambers hearing on the day of trial, appellant’s attorney told the court that the rights form signed by appellant was defective with regard to compliance with Ark. Code Ann. § 5-65-204(e)(2) and (3) (Supp. 2001). Appellant made a motion in limine to prevent the introduction of the breath-test results because the rights form used did not meet the requirements of Daniels v. State, 84 Ark. App. 263, 139 S.W.3d 140 (2003), an opinion delivered one month before appellant’s arrest. The State agreed that the rights form did not meet the requirements of the Daniels case, but argued that appellant’s motion was not a motion in limine, but actually a motion to suppress that must be filed no later than ten days before the date of trial. The court denied appellant’s motion, finding that it was “in the nature of a motion to suppress,” and filed untimely. Appellant now brings this appeal from the circuit court’s ruling.
When considering a denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). When reviewing a denial of a motion in limine or a refusal to take judicial notice, we use the abuse-of-discretion standard. The trial court has broad discretion in its evidentiary rulings; hence, the trial court’s findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002); Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001).
For his first point on appeal, appellant argues that the trial court erred in denying his motion in limine to prohibit the introduction of the breathalyzer test results into evidence. In response, the State argues that appellant’s motion to prohibit the introduction of the breathalyzer test was a motion to suppress and not a motion in limine. The State asserts that, because the motion made by appellant was a motion to suppress, and a motion to suppress must be filed no later than ten days before trial, the motion made by appellant was untimely.
We first turn to whether the motion made by appellant on the day of trial was a motion to suppress or a motion in limine. Appellant contends that the breathalyzer test results were not illegally obtained evidence because they were obtained pursuant to Ark. Code Ann. § 5-65-202, commonly referred to as the implied-consent law. Appellant argues that, because the results were obtained by consent, they were not illegally obtained, and his objection to their introduction was not a motion to suppress. The State argues that appellant was trying to suppress illegally obtained evidence by arguing that the breathalyzer test was illegally performed because he was not properly advised of his rights concerning the test. The State further argues that appellant’s motion was an untimely motion to suppress.
We have consistently held that courts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek. Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987). It would not be in the interest of justice and fair play to be blindly guided by the title of a motion or pleading. Id. A motion in limine to suppress the use of evidence is distinguishable from a motion to suppress. Payne v. State, 327 Ark. 25, 29, 937 S.W.2d 160, 162 (1997) (citing Jenkins v. State, 301 Ark. 20, 21, 781 S.W.2d 461, 462 (1989)). A motion to suppress evidence presupposes that the evidence was illegally obtained. Id. A motion in limine deals with the admissibility of evidence, rather than illegally obtained evidence. Id.
Arkansas Code Annotated § 5-65-204(e)(3) provides:
The refusal or failure of a law enforcement officer to advise a person of this right and to permit and assist the person to obtain a test shall preclude the admission of evidence relating to a chemical test taken at the direction of a law enforcement officer.
(Emphasis added.) Arkansas Rule of Criminal Procedure 16.2 provides as follows:
(a) Objection to the use of any evidence, on the grounds that it was illegally obtained, shall be made by a motion to suppress evidence. The phrase “objection to the use of any evidence, on the grounds that it was illegally obtained” shall include but is not limited to evidence which:
1. Consists of tangible property obtained by means of an unlawful search and seizure; or
2. Consists of a record of potential testimony reciting or describing declarations or conversations overheard or recorded by means of eavesdropping; or
3. Consists of a record or potential testimony reciting or describing a confession or admission of a defendant involuntarily made; or
4. Was obtained as a result of other evidence obtained in a manner described in subdivisions one, two, and three; or
5. Consists of the prospective in-court identification of the defendant based on an unlawful pre-trial confrontation.
The State does not dispute appellant’s contention that the rights form used in this case was identical to the one that the court of appeals found to be defective in Daniels, supra. In Daniels, the defendant was informed that he could have an additional test at his own expense, but was not advised that he would be reimbursed for the cost of the additional test if found not guilty. The court held that the rights form violated Ark. Code Ann. § 5-65-204(e) by failing to inform the accused that he would be reimbursed for the cost of an additional breathalyzer test if found not guilty and that the trial court erred in admitting the accused’s breathalyzer test results. The Daniels court considered the issue as one of admissibility. Further, in Kay v. State, 46 Ark. App. 82, 877 S.W.2d 957 (1994), the appellant moved to exclude evidence of a breathalyzer test on grounds that the officer had failed to advise appellant of his right to an additional test and to assist him in obtaining such a test. The court of appeals held that appellant’s motion was not a motion to suppress under Rule 16.2. Id. at 85, 877 S.W.2d at 959 (citing Scalco v. State, 42 Ark. App. 134, 856 S.W.2d 23 (1993) (holding that the breath test did not result from an unlawful search, seizure, or arrest)).
In the present case, appellant consented to the breathalyzer test under the implied consent law pursuant to Ark. Code Ann. § 5-65-202. Because the breathalyzer test was not illegally obtained, Rule 16.2 does not apply, and the issue is admissibility. Admissibility is covered by our rules, and with respect to proce dural issues, by statutes not in conflict. Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994). No argument has been made that a conflict exists between our rules and section 5-65-204, and we find none. Therefore, the motion made by appellant in this case to prohibit the introduction of the breathalyzer test into evidence was not a motion to suppress. Thus, we hold that the trial court erred in denying appellant’s motion.
Because we have decided Rule 16.2 does not apply, section 5-65-204 determines admissibility. Here, there is no dispute that the form used to advise appellant failed to meet the requirements of section 5-65-204, because the rights form had been found defective. See Daniels, supra. Considering the facts here in light of section 5-65-204, we hold that the trial court erred in denying the motion to prohibit the introduction of the test results.
For his second point on appeal, appellant argues that the trial court erred in overruling his objection to the introduction of the breathalyzer test results. The State responds, arguing that, even if the trial court did err in admitting the breathalyzer, appellant’s conviction must be affirmed because of his failure to perform the three field-sobriety tests. The State relies on our holding in Porter v. State, 356 Ark. 17, 145 S.W.3d 378 (2004), for the proposition that proof of a motorist’s blood-alcohol content is not necessary for a conviction ofDWI on the ground of intoxication. In Porter, the appellant argued on appeal that the trial court erred in admitting into evidence the blood alcohol test performed by the hospital because the test was not performed in compliance with Ark. Code Ann. § 5-65-204 (Repl. 1997). However, we disposed of this argument because it was not preserved below. This court’s opinion in Porter dealt solely with the appellant’s directed verdict motion challenging the sufficiency of the evidence. Therefore, Porter is inapplicable to the present case.
In the present case, the State called Officer Wesson, who testified that he asked appellant to perform three field sobriety tests: a one-legged stand, a finger-to-nose test, and a reverse-counting test. Officer Wesson testified that appellant kept putting his foot down during the one-legged stand, that appellant moved his head to his finger when asked to touch his finger to his nose, and was unable to accurately count backwards during the reverse-counting test. Dr. Randall McKiever treated appellant’s head injury a few days after the accident. Dr. McKiever testified that, in his opinion, appellant may not have been able to stand on one leg and hold his other foot six inches above the ground for thirty seconds without wavering, and that appellant would probably have been compromised after receiving the head injury. The State argues that appellant should be found guilty of DWI if he operated a vehicle while intoxicated or blew a .08 or more on the breathalyzer test, and the jury was instructed on both.
For the reasons set out in the first point, we find that the trial court erred in admitting the breathalyzer results over the objection of appellant. Even when a trial court errs in admitting evidence, we have held that when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm the conviction. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003) (citing Cobb v. State, 340 Ark. 240, 12 S.W.3d 395 (2000)). In the present case, we can neither say that the evidence of guilt was overwhelming nor that the error was slight. The jury was instructed on both the improperly admitted breathalyzer test and the other relevant evidence of intoxication. Because the jury’s verdict was general, we cannot determine how it came to its conclusion. Considering the case as a whole, we cannot say that the error in this case was harmless.
For his third point on appeal, appellant argues that the trial court erred in refusing to take judicial notice of the Arkansas Regulations for Blood Alcohol Testing (the Regulations). Appellant submits that he asked the court to take judicial notice of (1) the prescribed observation period as provided by the Arkansas Regulations for Alcohol Testing, and (2) the regulation setting the requirements for breathalyzer machines. The State responds that, at trial, appellant asked the court to take judicial notice of a superseded version of the regulations. The State argues that the trial court did not err by refusing to take judicial notice of a superseded version of the Health Department regulations or by not admitting the regulations into evidence.
During trial, appellant asked the court to take judicial notice of the Regulations. The State objected, arguing that the 1989 version of the regulations being offered by appellant was not the most recent. The State also objected on the grounds of hearsay, but the trial court stated that it was not hearsay, and that the real question was whether it was relevant to anything that the jury would decide. Appellant argued that the Regulations were relevant to the weight of the evidence on the validity of the results of the breath test. The court decided that the testimony of the officers showed that they had observed appellant for the twenty minutes required by the Regulations. Upon appellant’s request for the court to take judicial notice of the Regulations setting the requirements for breathalyzer machines, the circuit court stated that because the Regulations were confusing, it would take an expert to understand them.
Appellant relies on State v. Jones, 338 Ark. 781, 3 S.W.3d 675 (1999), to support his argument. In Jones, the State argued to the trial court that the alcohol testing in that case was conducted in a manner already approved by the State Health Department and that the standards, machinery, and certification procedures mandated for alcohol testing under the DWI statute were also applicable to testing under the BWI statute. We held that, although the trial court did not orally take formal judicial notice of the regulations, the State’s argument was sufficient to place the trial court on notice that it was relying on them. We stated:
A party is not required to formally proffer, prove, or introduce published regulations into evidence, so long as that party’s reliance on such regulations is brought to the attention of the trial court. See, e.g., Peters, supra; Mitchell, supra; Touzin, supra. This is because regulations adopted pursuant to the authority of a statute are considered part of the substantive law of this State, thus creating a presumption that the trial court judicially knows them. Manufacturer’s Casualty Ins. Co. v. Hughes, 229 Ark. 503, 316 S.W.2d 829 (1984).... An agency regulation is part of the substantive law that the trial court must determine and then apply to the facts of the case before it. Washington, supra. In Touzin, supra, we succinctly stated what is required to preserve arguments premised upon regulations for appeal:
Judicial notice may be taken of [a] regulation, but the proper procedure is for the party relying on such judicial notice to aid the court or administrative law judge by calling attention to that regulation.
Jones, 338 Ark. at 786, 3 S.W.3d at 677 (emphasis in original). Taking judicial notice of a regulation is akin to taking judicial notice of a statute or other form of law upon which the judge instructs a jury. Washington v. State, 319 Ark. 583, 586, 892 S.W.2d 505, 506 (1995).
We agree with the State’s argument that the trial court did not err by refusing to take judicial notice of the regulations or by not admitting the Regulations into evidence. Under Ark. R. Evid. 201(c), a trial court “may take judicial notice [of adjudicative facts] whether requested or not,” although under Rule 201(d), a court “shall take judicial notice if requested by a party and supplied with the necessary information.” Here, appellant did ask the trial court to take judicial notice of the Regulations, but asked the court to take judicial notice of a 1989 version instead of the current 1995 revised version. In St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980), we held that judicial notice could be taken of a Department of Health regulation requiring stricter compliance with a statute concerning admissibility of blood-alcohol tests, but the proper procedure for judicial notice is for the party relying on such judicial notice to aid the court or administrative law judge by calling attention to that regulation. Here, appellant merely called attention to a superseded version of the regulations.
The Regulations are adopted pursuant to the authority of a statute and considered part of the substantive law, thus creating the presumption that the trial court judicially knows them. See Jones, supra. In this case, if we presume that the trial court already judicially knew the Regulations, then it was unnecessary for the court to take judicial notice of them or admit them into evidence. The trial court in this case decided that the testimony of Officers Wesson and Rausch was sufficient to explain the requirements of the Regulations and whether they were complied with. Officer Wesson testified that he resumed the twenty-minute observation period after the test was negated, and there were no new occurrences to warrant restarting the observation period. The requirement stated in the Regulations that there be a twenty-minute observation period was addressed in the officer’s testimony. Therefore, we hold that the trial court did not err in not taking judicial notice of the Regulations. Accordingly, we affirm on this point.
We reverse and remand for the reasons stated above.
Affirmed in part; reversed and remanded in part.
The Arkansas Regulations for Blood Alcohol Testing are duly adopted and promulgated by the Arkansas Department of Health as approved by the Arkansas State Board of Health pursuant to the authority expressly conferred by the laws of the State of Arkansas, Act 106 of1969 as amended andAct 346 of1957 as amended, the same beingArkansas Code,Title 5, Chapter 65 andAct 518 of 1995 as amended. | [
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Paul E. Danielson, Justice.
Appellants Debbie and Elmer Cochran appeal from the order of the circuit court granting appellees Cheryl and Marshall Bentley a mandatory injunction against the Cochrans, which directs the Cochrans to remove their recently constructed shop building within 120 days from the date of entry of the order. The Cochrans assert four points on appeal: (1) that the circuit court erred in finding that the Cochrans’ building violated the 1940 restrictive covenants and in ordering it removed; (2) that the circuit court erred in enforcing the covenants and in finding that they had failed to adduce facts sufficient to sustain the defense that conditions surrounding the properties had changed since the filing of the restrictive covenants, that the covenants had not been abrogated and ignored by other landowners in the subdivision, and that they had failed to adduce facts sufficient to sustain the defenses of waiver, estoppel, or laches; (3) that the circuit court erred in finding that the restrictive covenants were clear and unambiguous and in applying the rigid and strict application and construction outlined in Clifford Family Ltd. Liability Co. v. Cox, 334 Ark. 64, 971 S.W.2d 769 (1998); and (4) that the circuit court erred in denying their posttrial motion to allow them the option, within a specified time, to renovate the structure to conform to the circuit court’s interpretation of the protective covenants. We affirm the circuit court.
On February 3, 2004, the Bentleys filed a petition for mandatory injunction with the circuit court. In it, they claimed that they were the owners of Lots 25 and 26 and that the Cochrans were the owners of Lots 27 and 28 of the Denison Heights subdivision located in Independence County. Count I of the petition stated, in part:
2. That in the spring and summer of2003, defendants, Cochranfs], constructed a separate garage, which exceeds thirty (30) feet in height, immediately adjacent to plaintiffs’ east property line, completely obstructing the sun and view that they had previously enjoyed.
Count II of the petition, which is most relevant to the instant appeal, alleged that the lots were subject to a protective covenant and that the Cochrans’ garage violated the covenant. The Bentleys then prayed that the circuit court enjoin the Cochrans from maintaining the garage; that the circuit court order the garage removed at the Cochrans’ cost; and for costs, attorney’s fees, and all other relief to which they might be entided. The Cochrans answered the petition, generally denying its allegations and pleading the affirmative defenses of waiver, estoppel, laches, and any and all other such defenses available under Ark. R. Civ. P. 8. In an amended answer, the Cochrans urged the circuit court to cancel any and all restrictive covenants applicable to their property, as the conditions surrounding their property and the Bentleys’ property had substantially changed since the filing of the restrictive covenants and as the covenants or certain portions thereof had been abrogated and ignored by other landowners in the subdivision.
While both parties filed motions for summary judgment, the circuit court denied those motions in a letter opinion filed June 10, 2005. The circuit court then held a bench trial on the matter on March 8, 2006. After hearing the testimony and the arguments of counsel, the circuit court ruled orally:
My understanding is that thereafter on occasion [Mr. Cochran] would refer to it as a shop. Whatever it is, I find as a fact that it is not a family dwelling. . . . The cases of the Clifford Family Limited Liability Company against Cox, 334 Arkansas 64, 971 Southwest Second, 769, a 1998 case, and Hays against Watson, 250 Ark. 589, 466, Southwest Second, 272, a 1971 case, necessarily control my decision in the present case. Applying the law in these two cited cases to the facts presented here today in the present case, it is my decision that the Plaintiffs must prevail. Therefore, it is my decision that the structure placed by Mr. Cochran must be removed. . . .
The circuit court then memorialized its ruling in its order granting the mandatory injunction, which was entered on March 23, 2006. In it, the circuit court found that the “structure erected on Lot 27, Denison Heights Subdivision is not a dwelling of any type and contains no kitchen, no bathing facilities and no bedrooms.” It further cited to the protective covenant and case law and found that the structure did not comply with the clear and unambiguous language of the covenant. The circuit court further found that the Cochrans had failed to adduce facts sufficient to sustain the defenses of waiver, estoppel, and laches, as well as the defenses that conditions surrounding the parties’ properties had substantially changed since the fifing of the restrictive covenants, that the covenants and certain portions thereof had been abrogated and ignored by other landowners in the subdivision, and that the applicable restrictions were ambiguous and uncertain at best and therefore unenforceable. The circuit court then directed the Cochrans to remove the structure from their lot within 120 days from the date of the order.
On March 28, 2006, the Cochrans moved to modify or amend the mandatory injunction, primarily requesting that the circuit court allow them to modify their structure to conform to the protective covenants. On April 13, 2006, the circuit court issued an order amending its order for mandatory injunction, permitting the Cochrans to postpone removal, should they appeal, until 120 days from the date of the fifing of the mandate on appeal. The Cochrans then filed their notice of appeal, posted a supersedeas bond, and moved the circuit court for a stay of the order. The circuit court entered an order staying the mandatory injunction pending appeal and permitting them 120 days from the date of the fifing of the mandate on appeal to comply with the orders of the court. The appeal is now before us.
I. Violation of the Restrictive Covenants
The Cochrans argue that the covenants at issue are too vague, ambiguous, and antiquated to be enforceable. As a result, they submit, the building in question must be permitted for any of the following reasons: it is not specifically excluded by size or other restrictions, it is an outbuilding related to residential use, or it is a detached garage permitted by the covenants. The Bentleys respond that the structure at issue is not a detached, single-family dwelling and, thus, pursuant to the plain language of the protective covenant, the structure should not be permitted to remain.
With respect to bench trials, this court has established the following standard of review:
In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a) (2002); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Sharp v. State, 350 Ark. 529, 88 S.W.3d 848 (2002). Disputed facts and determinations of credibility are within the province of the fact-finder. Sharp, supra; Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001).
Farm Credit Midsouth, PCA v. Reece Contracting, Inc., 359 Ark. 267, 271, 196 S.W.3d 488, 490 (2004) (quoting Chavers v. Epsco, Inc., 352 Ark. 65, 69-70, 98 S.W.3d 421, 423 (2003)).
A review of the record reveals that on December 16, 1940, the protective covenant for the subdivision, known as Denison Heights, was recorded. The covenant provided that all of the covenants were to remain
with the land and are binding on all parties and persons claiming under them until January 1,1960, at which time said Covenant shall be automatically extended for successive periods of ten years unless by a vote of the majority of the then owners of the lands it is agreed to change the said covenant in whole or in part.
It further provided:
2. No structure shall be erected, placed, or permitted to remain on any residential building lot other than one detached single family dwelling, not to exceed two and one-half stories high, and a private garage for not more than two cars, and other out buildings incidental to residential use of the lot. No residential structure shall be ' erected or placed on any building plot, which plot has an area of less than 14150 sq. ft. or a width ofless than 93 feet at the front building set-back line, except that a residence may be erected or placed on lots No. 1-2 and 30-A as shown on the recorded plat.
At issue in the instant case is the interpretation of the protective or restrictive covenant and whether the covenant precluded the Cochrans’ construction of the structure at issue. We hold that the covenant precluded the Cochrans’ structure.
We have observed that restrictions upon the use of land are not favored in the law. See White v. McGowen, 364 Ark. 520, 222 S.W.3d 187 (2006). Further, a restrictive covenant will be strictly construed against limitations on the free use of land. See id. Thus, all doubts are resolved in favor of the unfettered use of land. See id.
Any restriction on the use of land must be clearly apparent in the language of the asserted covenant. See id. Where the language is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the provision. See Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006). In addition, we have said that the general rule governing the interpretation, application, and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs. See Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).
We cannot say that the language of the covenant at issue is ambiguous. The language is, in fact, quite clear: “No structure shall be erected ... on any residential building lot other than one detached single family dwelling, . . . and a private garage for not more than two cars, and other out buildings incidental to residential use of the lot.” (Emphasis added.) Any structure built on the lots in the Denison Heights subdivision was required to be residential in purpose, consisting solely of a single-family dwelling and two-car garage and any outbuildings incidental to residential use.
Here, Mr. Cochran referred to his structure as “the shop building.” He testified that the building was located on Lot 27, while his home was located on Lot 28, touching Lot 29. As for its purpose, Mr. Cochran said:
Well, I had some things I needed to do, I’d retired and was about to go crazy without anything to do, so I had a party barge that was parked in Mother’s garage, or in her bam, which is still there, I haven’t got to that yet, but I wanted to rebuild it. The church bus was sitting out over at the church and I wanted a place to park it. And I built the shop tall enough to play basketball in. . . .
He further testified that he had previously put a church bus inside the building and that the building was large enough to hold two Peterbilt trucks inside of it. In addition, Mr. Cochran described the building as including the following: two levels, heating and air conditioning, two bays, an office with a telephone line, two restrooms, a tool room, and a second floor which housed a heating unit and a hot water heater.
We have previously defined “dwelling” as “a place to live in.” Holaday v. Fraker, 323 Ark. at 527, 920 S.W.2d at 7. Where, as here, the structure does not contain a kitchen, shower, or living area of some sort, it cannot serve as a place in which to live. Thus, because the Cochrans’ structure is a building other than a dwelling and a garage, or an outbuilding incidental to residential use, which are the sole permitted structures on each lot within the subdivision, its construction was prohibited by the protective covenant. Accordingly, we affirm the circuit court’s order issuing a mandatory injunction.
II. Failure to Adduce Facts
The Cochrans argue that conditions in the subdivision have changed from December 16, 1940, and that the covenants in question are outdated. They contend that none of the deeds from the past decades make reference to, or give notice of, the 1940 restrictive covenants. In addition, the Cochrans claim that the conditions surrounding the property in question have so changed and that the covenants fail to meet the general plan of development test; thus, they maintain, this court should refuse to enforce or cancel the covenants in question. They further assert that, while the construction of the structure took place over the course of four months, the Bentleys failed to take any action or make any complaint regarding it until after it was substantially completed. For this reason, the Cochrans urge, the Bentleys should be es-topped from enforcing the covenants. The Bentleys respond that the Cochrans failed to prove their affirmative defenses they raised below.
a. Change in Conditions
We hold that there has not been a change in conditions sufficient to warrant invalidation of the covenant at issue. In City of Little Rock v. Joyner, 212 Ark. 508, 206 S.W.2d 446 (1947), we observed that “equity should entertain jurisdiction to cancel a restrictive covenant in a deed where it would be oppressive and inequitable to give the restriction effect as where the enforcement would have no other result than to harass or injure the one without accomplishing the purposes for which originally made.” 212 Ark. at 512, 206 S.W.2d at 448-49. Here, we simply cannot say that it is so oppressive and inequitable to give the instant restriction effect. The requirement that structures being built on the residential lots in the subdivision consist solely of a single-family dwelling and garage and outbuildings incidental to residential use simply does not injure or harass anyone owning property subject to the covenant. Indeed, most protective covenants for residential subdivisions likely include a similar restriction. We, therefore, affirm the circuit court’s finding that the Cochrans failed to adduce facts sufficient to warrant invalidating the restriction.
b. Abrogation of the Covenants
The Cochrans further allege that, because there is no general plan of development, the instant restrictive covenants are not enforceable. They are mistaken. We have held that it is proper to consider whether a general plan of development exists when determining whether a written covenant or restriction contained in the chain of title of the party seeking to avoid the restriction remains valid. See Knowles v. Anderson, 307 Ark. 393, 821 S.W.2d 466 (1991). The test for a general plan of development is whether substantially common restrictions apply to lots of like character or similarly situated. See Harbour v. Northwest Land Co., Inc., 284 Ark. 286, 681 S.W.2d 384 (1984).
A review of the record reveals that each of the lots in the Denison Heights subdivision was clearly subject to the protective covenant filed in 1940 and all of the restrictions therein. Nor did the Cochrans put forth any evidence to suggest that the lots were not subject to the same restrictions. While certain homeowners may not have complied with all of the restrictions, that alone does not suggest that each lot, including the one owned by the Cochrans, was not subject to the restriction. For this reason, we affirm the circuit court’s finding that the Cochrans did not sustain such a defense.
c. Waiver, Estoppel, and Laches
The circuit court found that the Cochrans had failed to adduce facts sufficient to sustain the defenses of waiver, estoppel, and laches. We cannot say that the circuit court’s finding was clearly erroneous.
i. Waiver
Waiver is the voluntary abandonment or surrender by a capable person of a right known to him to exist, with the intent that he shall forever be deprived of its benefits, and it may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. See Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). Waiver is simply not applicable in the instant case. The Bentleys hardly abandoned or surrendered their rights under the restrictive covenant. They raised their concerns regarding the Cochrans’ structure to them and sought judicial relief to enforce the restrictive covenant. Moreover, as the circuit court found, the Cochrans failed to adduce facts to sustain a defense of waiver. Accordingly, we affirm the circuit court’s finding on the defense of waiver.
ii. Estoppel
The doctrine of estoppel involves both of the parties. See Anadarko Petroleum Co. v. Venable, 312 Ark. 330, 850 S.W.2d 302 (1993). The party claiming estoppel must prove he relied in good faith on some act or failure to act by the other party, and that, in reliance on that act or inaction, changed his position to his detriment. See id.
Again, as was the case with waiver, the Cochrans failed to adduce facts sufficient to sustain a defense of estoppel. Estoppel requires a showing of reliance. See Crystal Oil Co. v. Warmack, 313 Ark. 381, 855 S.W.2d 299 (1993). Clearly, the Cochrans did not rely on any action or inaction by the Bentleys, where both Debbie and Elmer Cochran testified that they would have continued to build their shop building even had they known about the restrictive covenant at issue. Because the Cochrans failed to adduce facts demonstrating their reliance, a necessary element to a showing of estoppel, the circuit court did not clearly err in finding that the Cochrans failed to establish the defense of estoppel. Thus, we affirm on this point as well.
iii. Laches
Finally, with respect to the defense of laches, we have said that the right to enforce a restrictive agreement may be lost by laches or acquiescence, especially when one incurs expenditures. See Goforth v. Smith, supra. The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. See id. It is based on the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert them, that by reason of his delay some adverse party has good reason to believe those rights are worthless or have been abandoned, and that because of a change of conditions during this delay it would be unjust to the latter to permit him to assert them. See id. Laches requires a demonstration of prejudice to the party alleging it as a defense resulting from a plaintiffs delay in pursuing a claim. See id.
In addition, the application of the doctrine of laches to each case depends on its particular circumstances. See Self v. Self, 319 Ark. 632, 893 S.W.2d 775 (1995). As was the case with estoppel, laches requires a showing of some sort that the party asserting the doctrine has suffered or changed its position as a result of the lack of diligence or delay in assertion of rights. See Crystal Oil Co. v. Warmack, supra.
Here, both of the Cochrans testified that they would have continued to build their shop even if they had knowledge of the restrictive covenant prohibiting its construction:
Counsel for the Bentleys: Now let me ask this question: Had you been made aware of the Restrictive
Covenant prior to commencing construction of the building you refer to now as the shop building.
Mr. Cochran: Yeah.
Counsel for the Bentleys: Would you not have built it?
Mr. Cochran: Not have built it?
Counsel for the Bentleys: Right.
Mr. Cochran: No, I’d built it.
Counsel for the Bentleys: You’d have built it. If you’d gone down to the courthouse and read that Restrictive Covenant that’s before the Court today, you’d have built it anyway, wouldn’t you?
Mr. Cochran: That’s right.
Counsel for the Bentleys: I put the question to [your husband] that had he done the research and had he found this Restrictive Covenant, would he have not built the garage, do you recall what his answer was?
Mrs. Cochran: He said he would built it [sic].
Counsel for the Bentleys: And is that your testimony likewise?
Mrs. Cochran: Yes.
Thus, the Cochrans’ testimony was that they did not detrimentally rely on any action or inaction of the Bentleys in deciding to continue the construction of their shop building; nor did they change their position based on any action or inaction of the Bentleys. Indeed, their testimony demonstrates that they were going to build the shop regardless of any complaint, challenge, or covenant. In addition, the Bentleys introduced evidence that Mrs. Bentley was receiving treatment for cancer and that they fre quently traveled to Little Rock for that treatment. Thus, they were out of town during much of the construction of the structure at issue.
We have held that the issue of laches is one of fact. See Self v. Self, supra. In the instant case, the Cochrans failed to show facts demonstrating the applicability of the doctrine of laches. They clearly failed to show facts demonstrating that by reason of any action or inaction on the part of the Bentleys, the restrictive covenant was worthless or abandoned. They further failed to show facts that had the Bentleys complained any earlier, they would have ceased construction. And finally, they failed to adduce facts demonstrating at what point the Bentleys should have known that the shop building was not a dwelling, was nonconforming, and was in violation of the restrictive covenants so as to demonstrate at what point the Bentleys should have first raised their objections. For these reasons, we hold that the circuit court did not clearly err in finding that the Cochrans failed to adduce sufficient facts to support their defense of laches, and we affirm the circuit court’s finding.
III. The Validity of Clifford Family Limited Liability Company v. Cox, 334 Ark. 64, 971 S.W.2d 769 (1998)
The Cochrans argue that this court should revisit what they suggest is the rigid and strict application doctrine requiring removal of offending structures set forth in this court’s opinion in Clifford Family Ltd. Liability Co. v. Cox, 334 Ark. 64, 971 S.W.2d 769 (1998). They contend that in each case using the doctrine, the offending party had actual notice of the covenants prior to construction of the offending structure and that it is undisputed that they were unaware of the covenants prior to or until the first complaint was registered by Mr. Bentley after construction was completed. They urge that the balancing of the equities, in considering the relative hardships to the parties, weighs heavily in their favor. The Bentleys submit that the Cochrans have not presented any compelling reason why such established precedent should be overruled. For that reason, they claim, the rule in Clifford should be applied to the instant case.
In Clifford, the Cliffords alleged that the chancellor erred in refusing to require the Coxes to remove a deck that they constructed on their property. While the chancellor found that the deck encroached upon the setback in violation of the protective covenants, he declined to order removal of the deck, concluding that removal would be a harsh remedy where he was unable to discern any interference with the Cliffords’ enjoyment of their property. Relying on the same rules for interpreting and enforcing restrictive covenants as are set forth earlier in this opinion, the Clifford court reversed and remanded the chancellor’s decision, holding that the language in the restrictive covenant was clear and that the chancellor erred in examining the respective properties to determine whether the encroachment by the Coxes caused any interference with the Cliffords’ enjoyment of their land. The court then remanded the matter to the chancellor to enforce the covenant by requiring the removal of the encroachment.
There is a strong presumption of the validity of prior decisions. See Council of Co-owners for the Lakeshore Resort & Yacht Club Horizontal Prop. Regime v. Glyneu, LLC, 367 Ark. 397, 240 S.W.3d 600 (2006). While the Cochrans urge this court, in essence, to overrule the strict application and construction set forth in Clifford, this court has held that it is necessary, as a matter of public policy, to uphold prior decisions unless great injury or injustice would result. See id. The policy behind stare decisis is to lend predictability and stability to the law. See id. In matters of practice, adherence by a court to its own decisions is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases. See id. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. See id.
No such point has been reached. Here, the Cochrans again argue that they did not have actual notice of the protective covenant at issue. However, a review of the record reveals that the protective covenant was filed with the clerk on December 16, 1940, and was a matter of record. Notations on the filing further reflect that the plat could be found on “page 595-A.” We have held that “a purchaser of lands takes them with constructive notice of whatever appears in the conveyance which constitutes his chain of title.” Abbot v. Parker, 103 Ark. 425, 429, 147 S.W. 70, 72 (1912). We have further observed that a landowner is bound by restrictions that appear in a properly recorded deed in his chain of title even though the instrument conveying title to him does not contain the restrictions. See McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). Accordingly, the Cochrans were charged with notice of the protective covenants and whether or not they had actual notice of the protective covenants is irrelevant. Whether the Cochrans had constructive or actual notice, they were charged with notice of the covenant and their situation in no way differs from that in Clifford. Moreover, our decision in Clifford does not dictate removal of a violating structure in every instance. Thus, we decline to revisit or overrule that decision, which clearly sets forth this court’s longstanding rules for interpreting, applying, and enforcing restrictive covenants.
IV Posttrial Motion
For their final point on appeal, the Cochrans argue that they should be given the opportunity to renovate the structure so that it does contain an adequate kitchen, bathing facility, and bedrooms, thereby complying with the circuit court’s interpretation of the covenants, instead of being forced to remove the entire structure. The Bentleys respond that because the Cochrans asserted no grounds for a new trial in their posttrial motion and no new trial was sought, the circuit court was correct in denying the Cochrans’ motion under Ark. R. Civ. P. 59. They further state that the circuit court was never asked to rule on the Cochrans’ modification remedy until all the proof was in and the judgment was entered. According to the Bentleys, the circuit court’s findings were reasonable and justified by the proof, were not clearly erroneous, and should not be disturbed.
We have not previously addressed this issue. In Holaday v. Fraker, supra, the appellants argued that the trial court clearly abused its discretion to grant injunctive relief by ordering them to remove their shop because the more equitable and appropriate remedy would have been to restrict their use of the structure. We declined to address the appellants’ argument, holding that it was not presented to the chancery court.
Nor do we find that the issue was timely raised in the instant case. Arkansas Rule of Civil Procedure 59 permits a circuit court to open a judgment once it has been entered, in an action tried without a jury:
On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
Ark. R. Civ. P. 59(a) (2006). That being said, there are only certain grounds upon which a new trial may be granted:
(a) Grounds. 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: (1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise which ordinary prudence could not have prevented; (4) excessive damages appearing to have been given under the influence of passion or prejudice; (5) error in the assessment of the amount of recovery, whether too large or too small; (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law; (7) newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial; (8) error of law occurring at the trial and objected to by the party making the application.
Ark. R. Civ. P. 59(a). The Cochrans, relying on the Michigan Supreme Court’s decision in Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496 (1925), requested in their motion for new trial that the circuit court grant them the option of modifying their structure to conform to the protective covenants.
It is well settled that a motion for new trial is addressed to the sound discretion of the circuit court, and the circuit court’s refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. See Jones v. Double “D” Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003). An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. See id. Here, the Cochrans requested that they be permitted to modify their structure, for the first time, in their motion for new trial. We have repeatedly held that an objection first made in a motion for new trial is not timely. See id. Stated differently, an issue must be presented to the circuit court at the earliest opportunity in order to preserve it for appeal. See id. For that reason, a party cannot wait until the outcome of a case to bring an error to the circuit court’s attention. See id. Because the Cochrans waited until their motion for new trial to request a chance to modify their structure, the circuit court did not abuse its discretion in denying their motion for new trial.
Nor was the Cochrans’ posttrial motion proper under Ark. R. Civ. P. 52. That rule provides in pertinent part:
(b) Amendment.
(1) Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact previously made or make additional findings and may amend the judgment accordingly. . . .
Ark. R. Civ. P. 52(b)(1) (2006). By its plain language, the rule contemplates new findings and a movant’s attempt to have those findings amended. Here, the Cochrans urged the circuit court to consider an alternative remedy, that of modification of the structure. Thus, the motion was not a true Rule 52(b) motion. See, e.g., Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998). Consequently, we cannot say that the circuit court erred in denying that portion of the Cochrans’ posttrial motion request to modify the structure to conform with the protective covenants.
With respect to the Cochrans’ arguments regarding Sanborn v. McLean, supra, we do not find the Sanborn case to be persuasive authority. In that case, the appellate court permitted the building at issue to be modified, despite its being subject to a reciprocal negative easement. In the instant case, there existed an actual protective covenant, which applied to the Cochrans’ lots since 1940, with which the Cochrans were charged notice. Moreover, the protective covenant in the instant case specifically provides that “[n]o structure shall be ... permitted to remain on any residential building lot other than one detached single family dwelling, . . . and a private garage . . ., and other out buildings incidental to residential use.” (Emphasis added.) Because we have already determined that the structure constructed on the Cochrans’ lot violates the restrictions of the protective covenant, we hold that the circuit court did not err in finding that it should not be permitted to remain and denying the Cochrans’ request for modification. For these reasons, we affirm the circuit court’s denial of the Cochrans’ posttrial motion.
Affirmed.
It was later established that the Cochrans owned Lots 27,28, and part of Lot 29.
While this standard of review differs slightly from that used in earlier restrictive-covenant cases, it is the standard used in this court’s most recent case, White v. McGowen, 364 Ark. 520, 222 S.W.3d 187 (2006).
We note that while the General Assembly took action in response to our Clifford decision, it has no bearing on the disposition of the instant case. Indeed, while the Clifford case was not specifically referenced by the General Assembly, the General Assembly did respond to this court’s decision by enacting Act 1380 of 1999. That act is now codified at Ark. Code Ann. § 18-11-501 (Repl. 2003), which provides:
Circuit judges are authorized to exercise their discretion to balance the equities between or among parties when considering whether to award injunctions or damages in cases involving encroachment of interior setback lines in residential subdivision restrictive covenants.
Ark. Code Ann. § 18-11-501 (Repl. 2003).
A plain reading of the statute reveals that it pertains only to cases “involving encroachment of interior setback lines.” Such a reading is further evidenced by an examination of the emergency clause of the act itself, which states, in pertinent part:
Recent court decisions appear to hold that any violation of such an interior setback restriction, no matter how slight, requires that the structure or part thereof built in violation of the setback restriction be removed. Such an interpretation of the law regarding interior setback restrictions in residential restrictive covenants will result in the needless destruction of property, with resultant displacement of homeowners and their families and substantial expenditures to correct setback restriction violations, which, in actuality, cause little or no damage to adjacent land owners____
Act of Apr. 13, 1999, No. 1380, 1999 Ark. Acts 5660, § 7 (emphasis added). Accordingly, the law regarding restrictive covenants, as set forth in Clifford, is still considered valid precedent of this court. See, e.g., Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006); White v. McGowen, 364 Ark. 520, 222 S.W.3d 187 (2006) (both of which cite to Clifford for its recitation of the law regarding restrictive covenants since the General Assembly’s action in 1999).
This is especially true for purposes of judicial economy and efficiency, as we question whether our circuit courts’ monitoring modification of prohibited structures subject to various restrictive covenants is good practice. | [
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Per Curiam.
Appellant John Otto Downing, Jr., by and through his attorney, has filed a motion for belated appeal. His attorney, Dick Jarboe, states in the motion that he erred in filing a notice of appeal from Downing’s entry of a conditional plea of guilty on April 6, 2006, rather than from the April 6, 2006 judgment, as required by Ark. R. Crim. P. 24.3(b) (2006). See McDonald v. State, 354 Ark. 28, 124 S.W.3d 438 (2003).
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 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.” Id. 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. Jarboe 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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Per Curiam.
Appellant Kenneth Harrison, by and through his attorney, Bill Luppen, has filed a motion for belated appeal. The clerk refused to accept the record because it was untimely. Counsel concedes in his motion for belated appeal before this court that he did not give all parties an opportunity to be heard on Harrison’s motion to extend the time for filing the transcript under Ark. R. App. P. — Civ. 5(b)(1)(C). The record thus reflects that counsel did not strictly comply with Rule 5.
We have held that Rule 5(b)(1) applies to both civil and criminal cases for the determination of the timeliness of a record on appeal. See Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006) (per curiam). Rule 5(b)(1) provides in pertinent part:
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing.
Id. We have made it clear that there must be strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality. See White v. State, 366 Ark. 295, 234 S.W.3d 882 (2006) (per curiam); Rackley v. State, 366 Ark. 232, 234 S.W.3d 314 (2006) (per curiam).
As the record before us does not comply with this rule, we remand this case to the trial court for compliance with Rule 5(b)(1)(C).
Remanded.
Although a motion for extension of time appears in the record, that motion does not bear a file-stamp from the circuit clerk’s office. | [
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Annabelle Clinton Imber, Justice.
Appellant James R. Munson was convicted of first-degree violation of a minor and sentenced to fifteen (15) years’ imprisonment. We affirmed his conviction in Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998).
On September 4, 2003, the Arkansas Department of Correction Sex Offender Screening and Risk Assessment Committee (SOSRA) assessed Munson as a level III sex offender. Munson timely filed his request for administrative review of the assessment on September 15, 2003. Following an extended exchange of correspondence between Munson and SOSRA, Munson filed a petition for judicial review of SOSRA’s assessment on July 28, 2005, and the circuit court dismissed his petition as being untimely. Fie then lodged an appeal in this court and presently has two motions pending here: (1) a motion to complete the record and (2) a motion to duplicate his briefs at the state’s expense.
As we find no merit to the appeal, the appeal is dismissed without prejudice, and Munson’s motions are moot. This court has consistently held that an appeal from 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); Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam).
Pursuant to the Sex Offender Registration Act of 1997, codified at Ark. Code Ann. §§ 12-12-901 through 12-12-922 (Repl. 2003 & Supp. 2005), the SOSRA committee shall conduct a sex offender risk evaluation and assessment to determine a sex offender’s risk level. See Ark. Code Ann. §§ 12-12-921 —12-12-922. Upon receiving a copy of the assessment, the offender can challenge the assigned risk level by seeking an administrative review. Id. § 12-12-922(b)(l)(A). The request for review must state that either the rules and procedures were not properly followed in reaching the decision of the offender’s risk level, or there is evidence that was not available at the time of the assessment, which would have bearing on the assessment. Id. § 12-12-922(b)(3)(A). A member of the committee then has thirty (30) days to review the offender’s assessment and send the offender the findings of the review by certified mail. Id. § 12-12-922(b)(6) (A) & (7)(A)(i). The offender has thirty (30) days, after he or she receives the findings, to file a petition for judicial review under the Arkansas Administrative Procedure Act. Id. § 12-12-922(b)(7)(A)(ii). Under the Arkansas Administrative Procedure Act, a person has thirty (30) days after he or she has been served with the “agency’s final decision” to file a petition for judicial review with the circuit court. Ark. Code Ann. § 25-15-212(b)(l) (Repl. 2003).
After being assessed as a level III sex offender in 2003, Munson requested an administrative review. The chair of the SOSRA committee, Billy Burris, responded to Munson’s request by a letter dated November 17, 2003. The letter in its entirety states as follows:
You have requested a review of your Risk Level Classification. Generally, review requests are based on new information unavailable at the time of the assessment, or allegations that policy and procedures governing the process was [sic] not followed. The information that you provided will be forwarded to the Sex Offender Screening & Risk Assessment [sic].
The only information to be reviewed will be that which may not have been reviewed previously. If that information was in fact reviewed, then your request for a review is not justified.
On December 3, 2003, Munson sent a letter to Burris confirming that he had received the November 17 letter. In his letter, Munson requested information regarding who would be reviewing his case, and a copy of the results of the review. Munson then proceeded to send a series of letters to Burris and Max Mobley, the secretary of the SOSRA committee, further inquiring as to whether the review had been held and about the restáis of the review.
On March 3, 2004, Mobley sent Munson a letter with a copy of the November 17 letter. In this letter, Mobley stated that the November 17 letter was Burris’s opinion on the review of Mun-son’s assessment. On March 14, 2004, Mobley sent Munson another letter stating in part “[i]n case any confusion remains, Mr. Burris completed your review on November 17th. Your level 3 was upheld.” Mobley also wrote that he had listened to the tapes of Munson’s assessment interview, found no inappropriate actions on the part of the staff, and found Munson’s presentation to the committee lacking in credibility.
On March 29, 2004, Munson sent Mobley a letter, in which he confirmed receipt of the March 3 and November 17 letters. However, he alleged that the November 17 letter did not contain any results of his review and instead the letter merely stated that his assessment had been sent to the committee for review. Then, Munson once again requested the results of the committee’s review.
On April 6, 2004, Mobley sent Munson another letter in which he summed up the November 17 letter as meaning that Burris “looked at what you sent, and found no basis for review.” Mobley also indicated that the SOSRA committee did receive a copy ofBurris’s opinion. He concluded by stating that Burris had written to Munson about the review on November 17 and reiterated to Munson “[y]our risk level has not changed, nor wál it.”
Finally, Munson filed a petition for judicial review in the Pulaski County Circuit Court on July 28, 2005. In his petition, Munson alleged that Burris and Mobley were avoiding his assessment review, and he stated that he had no knowledge of the results of the committee’s review. In response, SOSRA filed a motion to dismiss, arguing that Munson’s petition was untimely. SOSRA asserted that Munson received the results of his review in the November 17 letter and again in the March 14 and April 6 letters but failed to file his petition until several months after the thirty-day deadline had lapsed.
The circuit court entered an order granting SOSRA’s motion to dismiss. In support of its order, the circuit court found that Munson received notice of the results of his administrative review through the November 17 letter and also received confirmation, through the March 14 and April 6 letters, that the November 17 letter constituted the results of his review. Based upon those findings, the circuit court concluded that Munson’s petition for judicial review was not timely filed.
Under the Administrative Procedure Act, the judicial branch does not occupy a supervisory role by monitoring the day-to-day actions of the executive branch. Viswanathan v. Mississippi County Cmty Coll. Bd. of Trs., 318 Ark. 810, 887 S.W.2d 531 (1994). Rather, it is only the agency’s judicial functions that are subject to appellate review and then only as narrowly prescribed in the act. Id. at 812, 887 S.W.2d at 532-33. The question of whether a petition for judicial review is based upon a final agency decision is a jurisdictional matter that a court can address at anytime. See id.
We have held that final orders are needed for appellate review, including review of agency decisions in a circuit court, and we have defined a “final order” as “one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy.” McGann v. Pine Bluff Police Dep’t, 334 Ark. 352, 974 S.W.2d 462 (1998). Additionally, a final decision or order of an agency “shall be in writing” and “shall include findings of fact and conclusions of law, separately stated.” Ark. Code Ann. § 25-15-210 (b)(1) & (2) (Repl. 2002). Under the Sex Offender Registration Act, the SOSRA committee shall send an offender the findings of his or her administrative review by certified mail. Ark. Code Ann. § 12-12-922(b)(7) (A) (i) (Supp. 2005).
The circuit court here found that the November 17 letter was the SOSRA committee’s final decision on Munson’s administrative review. We disagree. The language of the letter does not clearly indicate that Munson’s right of review has been concluded. Instead, the letter is framed in terms that indicate the review was still ongoing. The letter specifically states that Mun-son’s information “will be forwarded” to the committee and “[t]he only information to be reviewed will be that which may not have been received previously.” Moreover, the November 17 letter does not contain any findings of fact or law with regard to the administrative review. The letter merely sets out the procedures that the committee members follow in performing a review. Accordingly, we hold that Burris’s November 17 letter did not constitute the SOSRA committee’s final decision on the assessment of Munson as a level III sex offender.
The circuit court also found that Mobley’s March 14 and April 6 letters gave Munson further notice that a final decision had been reached on his administrative review. As stated above, the Sex Offender Registration Act requires the SOSRA committee to send an offender the findings of his or her administrative review by certified mail. Ark. Code Ann. § 12-12-922(b)(7)(A)(i). The requirement that a final decision be sent by certified mail acts as a confirmation of the date on which the offender received the final decision and thereby determines when the thirty-day deadline expires for filing a petition for judicial review under Ark. Code Ann. § 25-15-212(b). The record before us, however, does not contain any evidence that the March 14 and April 6 letters were sent by certified mail, as required by Ark. Code Ann. § 12-12-922(b)(7)(A)(i). Thus, without proof that the March 14 and April 6 letters were properly sent to Munson, we cannot say that either of those letters constituted a final decision under § 25-15-212(b). Moreover, in the absence of any proof that Munson received those letters, much less proof of dates of receipt, the deadline for filing a petition for judicial review — thirty (30) days after the offender receives the administrative review findings — cannot be determined. Ark. Code Ann. §§ 12-12-922(b)(7)(A)(ii), 25-15-212(b).
For the reasons stated above, we hold that Munson did not receive a final decision on his administrative review from the SOSRA committee. We therefore dismiss Munson’s appeal without prejudice so that he can obtain a final decision from the SOSRA committee. Furthermore, this disposition of Munson’s appeal renders the pending motions moot.
Appeal dismissed without prejudice; motions moot.
MAY 17, 2007
Dustin McDaniel, Att’y Gen., by: Amy L. Ford, Ass’t Att’y Gen., for Petitioner. | [
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Per Curiam.
Appellant, Kedrick Darrough, by and through his attorney, Gary W. Potts, has filed a motion for rule on clerk. In the motion, Mr. Potts accepts responsibility for failing to timely lodge the record.
This court clarified its treatment of motions for rule on the 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.” McDonald v. State, 356 Ark. at 116, 146 S.W.3d at 891. There, 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. (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, Mr. Potts 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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Battle, J.
On December 31, 1903, the Southern Mercantile Company of Pine- Bluff executed to the Bank of Pine Bluff its four promissory notes for amounts aggregating the sum of $9,537, and on June 6, 1904, executed another note to the same party for $5,000, all of which bear interest at the rate of ten per centum per annum from date until paid. Before delivery to the payee they were indorsed by Ferd Havis and Wiley Jones. On the seventh day of December, 1904, Wiley Jones died, and James Jones was duly appointed administrator of his estate, and qualified as such. On the 20th day of January, 1905, the notes, duly authenticated, were presented by the Bank of Pine Bluff to the administrator for allowance against the estate of the deceased, and were disallowed by him, “notice and presentation being waived by him.” They were then presented to the probate court_ of Jefferson County for allowance, and were disallowed. The Bank of Pine Bluff then appealed to the Jefferson Circuit Court, and the notes were by it allowed, and the administrator appealed.
Appellant contends that the bank should be required to first collect of the Southern Mercantile Company all it can by process of law before its claim is allowed against the estate of Jones. This contention is not tenable. Plavis and Wiley Jones, having received no consideration in addition to that of .the notes, became, liable to the bank as joint makers with the Southern Mercantile Company. Nathan v. Sloan, 34 Ark. 524. Their obligation, according to the terms of the contract, is the same as that of the Mercantile Conipany, and as soon as the latter was in default they were likewise in default, and could be sued immediately for the whole amount due on the notes and before any proceedings against the latter. They were not liable for only so much as the owner of the notes failed to recover of the latter by process of law, nor upon that condition. Such were not the terms of the contract, and can not be imposed upon the payee as a condition of its recovery. 1 Brandt on Suretyship and Guaranty (3 Ed.), §110, and cases cited.
Judgment affirmed. | [
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McCulloch, J.
This is a suit in chancery instituted by Levee District No. 1 of Conway County, a levee district alleged to have been duly formed according to the provisions of chapter 100, Kirby’s Digest, against J. H. Overstreet and M. E. Over-street to recover assessments alleged to have been duly made and chargeable against certain lands of the defendants situated in the district for the construction of the levee.
The defendants in their answer challenge the legality of the formation of the district and the validity of the assessments. They deny (1) that the district was legally formed, (2) that their lands are benefited by the building of the levee and subject to taxation for levee purposes, and (3) that the assessments were made and raised accprding to law.
The cause was heard upon documentary and oral testimony adduced at the trial, which has been brought upon the record by bill of exceptions, and the chancellor rendered a decree in favor of the plaintiff, charging the amount of the assessment as a lien upon the lands described and ordering it to be sold in default of payment of the assessments. The defendants appealed to this court.
The court refused a decree for the statutory penalty of ten per cent, on nonpayment of the assessments within thirty days, and the plaintiff also appealed from this part of the decree.
The basis of the attack upon the order of the county court forming the levee district is that there was no notice given, as required by statute, of the intention to apply for such order. The order of the county court, however, recites that due notice had been given, there was oral testimony adduced at the trial of this cause tending to establish the fact that such notice was given, and the testimony contradicting it was of a negative character. The petition for formation of the district had been lost, and could not be produced. The evidence was sufficient to support the finding of the chancellor that the notice had been given, and the decree will not be disturbed on that ground. The order of the county court is regular on its face, and contains all the necessary jurisdictional recitals, and is at least sufficient to make a prima facie showing of regularity and' validity. Stiewel v. Fencing District, 71 Ark. 17.
Copies of the records ©f the board of directors and assessors of the district were introduced in evidence. They were competent evidence, and established a prima facie case in favor of the regularity of such assessment. Kansas City, P. & G. R. Co. v. Waterworks Improvement District, 68 Ark. 276; Stiewel v. Fencing District, supra; Ritter v. Drainage Dist. No. 1, 78 Ark. 580; State v. Kidd, 125 Ala. 413; McCrory v. Manes, 47 Ga. 90; Smith v. Scully, 66 Kan. 139; Mills v. Richland Tp., 72 Mich. 100; Pittsfield v. Barnestead, 40 N. H. 477; Grand Rapids S. F. Co. v. Grand Rapids, 92 Mich. 564; Scranton Poor Dist. v. Directors, 106 Pa. St. 446; Day v. Peasleys 54 Vt. 310; Adams v. Osgood, (Neb.), 84 N. W. 257; Bennett v. Darling (S. D.), 86 N. W. 751; 1 Desty on Taxation, p. 447.
Appellant J. JEL Overstreet in his testimony states his opinion that the assessment on the lands of appellants is excessive, but he does not show that the lands are not benefited, and his testimony fails to overturn the prima facie fairness and equality of the assessments established by the returns of- the assessors. Kansas City, P. & G. R. Co. v. Waterworks Improvement Dist., supra.
This also disposes of appellant’s contention that no meeting was held, as required by law, for the purpose of revising, and adjusting the assessments made by the assessors and reported to the board of directors. The records of the board recite that such meeting was duly held after notice had been given, and this record is sufficient to make a prima facie case until the contrary is made to appear by those questioning the validity of the assessment.
Appellants,, to impeach the assessment, introduced testimony to the effect that at a meeting of landowners O. O. Scroggins, one of the directors, told appellants that the assessment on their lands amounted to $353.50, and thereby induced them to vote for the building of the levee. The amount of the assessment is $612, as shown by assessment roll. Learned counsel for appellant insist that the levee district should be held bound by the statement of the director, or the assessment should be held to be invalid on the- ground that it was never laid before the landowners at the meeting thereof.
The statute provides that, after formation of the district and election and qualification of the board of directors, said board shall determine what work shall be necessary to be done or levees to be constructed to protect the lands from overflow and cause to be made accurate surveys and estimates of the cost of the work by suitable engineers, and that the assessors shall then make an assessment of the value of all lands in the district subject to overflow, making a record of the value of said lands as assessed without the work, and the value thereof as improved by the work.
The next three sections of the statute are as follows:
“Sec. 4941. The board of directors shall then call a meeting of all the landholders of said district at some place convenient to some part of said work, and shall give at least five days’ notice of the time and place of said meeting by written or printed handbills put up in ten public places in said district, and that the estimates of the surveyor and the list of the assessors will be submitted to said meeting for action, and requiring the owner of said lands, and the holders of any lien thereon, to show cause at said meeting why said, lands shall not be assessed with their proportional part of the cost of such work.
“Sec. 4942. At such meeting the report and the estimates of the engineers and the assessments of the assessors shall be laid before the landholders present; an estimate of the probable cost of said work and the probable rate per centum thereof on the valuation of said lands as increased by said work, as will be necessary to pay for said work, shall be made known to the landholders present; and if a majority of the landholders present, either by themselves or their agent or attorney authorized to act for them, vote for said work, the same shall be done..
“Sec. 4943. If it shall be decided at said meeting, in the manner aforesaid, to do said work, the directors shall proceed to let the same out to the lowest and best bidder; provided, said directors shall have the right to reject all bids if the same shall be deemed too high.”
The meeting provided' for in the foregoing sections was duly held on August xo, 1904, at Miller Ford in said levee district. Notice of the meeting was given, and appellant J. A. Overstreet was present. It was at this meeting that appellants say the statement was made by Scroggins concerning the amount of the assessment. Scroggins testified that he told the landowners at this meeting that the cost of the levee would approximate six and one-half per cent, of the increased valuation as assessed by the assessors, but that afterwards it was ascertained that it would require á levy of eight and one-half per cent, on the increased valuation. He also testified that the increase of two per cent, over the estimate made at the meeting of landowners was levied on all the lairds, and that no change was made in the assessment of the Overstreet land after that meeting.
It will be observed that the sections of the statute just quoted do not provide for a revision or adjustment of the assessments at this meeting. They provide only that the estimates of the engineers and assessments of the assessors shall be laid before the landowners present together with “an estimate of the probable cost of said work and the probable rate per centum thereof on the valuation of said lands as increased by said work as will be necessary to pay for said work.” So if the misrepresentation claimed to have been made by one of the directors at this meeting was in 'fact made, and if the levee district was bound by the statements of one of its directors, the statement could only be material in so far as it influenced appellants to vote in favor of building the levee; and, as their votes were not essential to the making of a majority of the landowners in favor of the improvement, the alleged misrepresentation could not affect the validity of the assessment.
But we- can not accede to the contention that one of the directors could vitiate the assessment, otherwise valid, by a misrepresentation to one of the landowners at this meeting of the amount of his assessment. The final assessment and levy was not made or raised at this meeting, and the statement said to have been made by one of the directors was unauthorized and not binding on the district. The integrity of an assessment of taxes, either general or special, can not be impeached by the unauthorized misrepresentation of a public officer concerning the amount of the assessment.
A subsequent section of the statute is as follows:
“Sec. 4948. Said' board of assessors shall make an assessment of the cost of said work upon the lands situated in said district benefited by said work and reported to said meeting of landowners upon the value of said lands as increased by said work, and shall also make a list of said lands as assessed, showing the owners’ names, the description of the land, the number of acres, the valuation thereof as increased by said work, and the amounts of the assessments thereon. Said assessors- and board of .directors shall then go carefully over said list, descriptions and valuations, and make all necessary corrections in -the description of the lands assessed, adding to said list any lands omitted and striking out any'lands improperly assessed. Notice of the time and place of such revision shall be given by written or printed handbills posted in ten public places in said district for ten days prior thereto, at which time any person feeling himself aggrieved by said assessment may appear and have his complaint heard and considered by said board of directors. Said assessor shall make all alterations and corrections in said list ordered by the board, and shall then file the same in the clerk’s office of the county court of such oounty, and shall also make a separate list thereof and deliver the same to the treasurer of the district, both of which lists shall be signed by the assessors; provided, for the purpose of ascertaining the correct, description of any lands embraced in the district, said assessors and the owners of said land shall be governed by and subject to the provisions of section 6980.” Kirby’s Digest, § 4948.
It is shown that the meeting of the directors and assessors was held on September 19, 1904, pursuant to the foregoing requirement, and the assessments were finally adjusted and raised. Appellants did not attend this meeting, but, the notice thereof having been shown to have been given, they are chargeable with information thereof. If the alleged misrepresentation had been made by the directors, there would be much more reason for holding that the district was bound thereby as to the amount of the assessment, because this was the only opportunity afforded the landowners for protest against or readjustment of the assessment of his land. It is not claimed, however, that anything of the sort occurred at this meeting. Upon the whole, we think the chancellor was right in sustaining the assessment against the lands of appellants.
He erred, however, in refusing to give a decree for the ten per cent, penalty. The statute .plainly provides that “if said assessments are not paid within thirty days, a penalty of ten per cent, shall at once attach for such delinquency, and said board of directors shall enforce the collection of the whole by chancery proceedings in a court of the county in which said lands are situated having chancery jurisdiction, and said court shall give judgment against the persons claiming to be the owners of the lands, if known to said board, for the amount of such assessment, and said penalty of ten per cent, and interest on said assessment from the end of said thirty days allowed for the collection thereof at the rate of six per cent, per annum and the cost of the proceedings.” Kirby’s Digest, § 4954.
The decree of the chancellor is affirmed except in so far as the penalty of ten per cent, is denied; as to the penalty the decree is reversed, and the 'cause remanded with directions to enter a decree for the penalty as well as the amount of the assessments, interest and cost of the proceedings. | [
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Hill, C. J.
The controlling question in this case is whether the logs in controversy had been delivered to appellee prior to the attachment of appellant.
The court gave four instructions of its own motion and the 1st and 9th requested by appellant, which instructions will be found set out in the statement of facts.
Where the property is ponderous, a symbolical or constructive delivery may be accepted as sufficient when such symbolical delivery is the usual delivery, the proper delivery, or such as the property is capable of, and evidences the change of possession. This question is fully discussed by Chief Justice Engrisi-i in Puckett v. Reed, 31 Ark. 131, which case has been frequently approved and applied.’ Trieber v. Andrews, 31 Ark. 163; Shaul v. Harrington, 54 Ark. 305; White v. McCracken, 60 Ark. 613.
There was evidence to sustain the hypothesis of the instructions given, and the facts therein supposed, if existent, made a good delivery, and there was no conflict as to the crucial matters evidencing the delivery.
The instructions given covered the law of the case necessary to have been given in order for the jury to have reached a correct verdict. The refused instructions have been carefully examined, and it can not be said that the refusal to give any of them was error.
Judgment affirmed. | [
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Wood, J.
The majority of the court is of the opinion that the allowance of alimony and attorney’s fees under the evidence is proper, regardless of whether a common-law marriage was shown or not. In the leading case of Brinkley v. Brinkley, 50 N. Y. 184, Chief Justice Folger, speaking for the court, after a careful and exhaustive review of authorities, English and American, reaches the conclusion that, “in all applications for temporary alimony and the expenses of the action, although there may be in the answer a general denial of the existence at any time of the marital relation, the court has the power, from the affidavits and other papers presented to it, to pass upon the question for the purposes of the application, and it is not bound down to the allegation of the complaint and the denial of the answer if other papers or proof are submitted to it; and, though the denial of the answer, if standing alone, would bring the case within the rule that where no marital relation is admitted or proved there is no right of alimony, yet, if the matters contained in other papers or shown by legitimate proofs before the court make out in the judgment of the court a fair presumption of .a fact of marriage, it has the power to grant alimony pending the action and expenses of the action.” This is sound doctrine, and supported, we think, by the weight of authority.
In Vincent v. Vincent, 16 Daly (N. Y.), 535, it is said “that; to authorize an allowance of alimony pendente lite, the existence of the marital relation must be shown to the satisfaction of the court, is a settled rule in the jurisprudence of this State. But, as in other preliminary contestations, the fact is not to be established with the clearness and conclusiveness exacted of proof as the basis of a final adjudication upon the rights of the litigant parties.” See other cases cited in brief of appellee.
These principles, applied to the facts of this case as developed on behalf of the appellee, leave no question as to the correctness of the court’s ruling.
Appellee follows up the allegation of marriage by her own evidence that the ceremony was performed by one authorized to solemnize it, and then shows by affidavits of others, and even by appellant, the constant cohabitation of himself and appellee for years, as husband and wife. These facts warrant the reasonable presumption that appellant and appellee were married, as .appellee swears they were, and show a strong probability that appellee would succeed on the final hearing in establishing the truth of the ¡ allegation of her marriage to appellant. Appellee also establishes in the same way the reasonable probability that there is no truth in the charge of adultery against her.
Where marriage is alleged in the complaint and denied in the answer, it is the rule in some jurisdictions that -the fact of marriage must be established by the plaintiff by a preponderance before an order of alimony can be obtained. Hite v. Hite, 124 Cal. 389, 57 Pac. 227; McKenna v. McKenna, 70 Ill. App. 340.
Even if this were the rule in our State a finding that appellee had met its requirements in this case would not be clearly against the weight of the evidence. | [
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Hill, C. J.
This appeal involves the construction -of section 3508, Kirby’s Digest, which is: “The county treasuteF ¡shall be allowed fees as follows: In all cases where the amoUht'feceived does not exceed $1,000 in any one year, four pe'r;centum;-on•'all sums over $1,000, not exceeding two per'centum', 'to‘fee;pkid cut of the respective funds.” This: legislation is pa;rt:í,ó‘f the system providing for compensation fon officers.- ¡Tt is the statute fixing the county treasu-ret’s emolumentes;' aiid iSl'no't"directedf towards any other end-.' N>> ’'-i r\- ,1 ■
It is the duty of the-treasufet-to re'ceive ’álFthé' ctíünty revenue, and pay and'disbuTséthé s'ámé bh. warrants'or‘orders'drawti by order of the>cóufitybd'ürt.'l! KHútíy’s''¿figés't,- §( ii'ijgC ÍHé'niüsí report to the'quorum'Court‘a statement* of all'-funds'received by him, “and from-'whom-add1 on what-account/’" Kirby’s■ Digest, § 1499; par; 3. ' - "■ ;'i: •' -
- ‘ ‘County" taxes' ate* payable 'in “currency 'of the' United States * or scrip' dr"' wáfráiifs' of the' ’ county. Kifby’s Digest, § 1504." When'thé'révéíiué'is received hi "whatever ‘kintr of funds, it,is at once carried to the account for which it was raised;’altid'is paid out only on order on that particular fund. Kirby’s Digest, § 1505. For these services the compensation is based on the amount received annually; four per centum on $1,000, and not exceeding two per centum on all sums over $1,000. This must be taken as referable to all the county revenue; for the statute is looking to compensation based on .annual receipts. • Upon the total revenue the salary is fixed; but in the settlement of the salary each fund must pay its own proportion, and pay in its own kind. This is manifestly fair, for some funds may all be raised in cash, some all in warrants; or the higher percentage might be taken before other funds would be received, and the burden of this salary not fall equally upon each fund. Therefore, the Legislature wisely charged this salary to the respective funds.
In this case the contest was over the compensation to be charged against the road tax, levied and collected under authority of Constitutional Amendment No. 5.
It is provided by section 7332, Kirby’s Digest, that-the treasurer shall keep a separate account with each road district, and present his accounts to the quorum court showing the funds of each road district separately. From this it is contended that each fund for which the treasurer must keep a separate account should be taken as a distinct and separate fund, in so far as the treasurer’s commission is concerned, and that each fund should be tolled 4 per cent, on the first $1,000 and 2 per cent, thereafter. The Road Tax Amendment contemplates the levying and collection of the county road tax — a single fund. Subsequent legislation required the separation of the tax according to districts (Kirby’s Digest, 7332, 7333), but this did not prevent this fund being a single fund as it came into the treasurer’s hand. Like the general revenue fund derived from the five-mill tax, it was one fund as received by him, but the county court would order it separated into many funds. The separation of funds received by ‘the treasurer is not the test of the amount of his compensation. All funds are taken to ascertain the total amount. When ascertained, then his percentage is tolled from each fund in kind; the higher pércentage 'of course chargeable proportionately to each fund, so that no fund bear a greater proportionate burden than another.
Appellant points to section 3509, Kirby’s Digest, as furnish ing a legislative construction of the rule governing the treasurer’s commission in accordance with his theory. The county treasurer is ex officio treasurer of the school fund of his county. Const, art. 7, § 46. The school fund is not a county fund, but belongs to each school district separately. Each district levies and disburses its own taxes, and the treasurer is merely the banker for all of them. The Legislature specially provided for his compensation in this other capacity in the section referred to (3509), but that section does not touch the question involved here.
The judgment is affirmed. | [
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Riddick, J.
This is an appeal by A. W. Shirey from a judgment rendered against him in favor of J. M. Whitlow for the recovery of two small tracts of land containing only a few acres. These parties own adjoining tracts of land, and the evidence tends to show that some fifteen or twenty years ago Shirey inclosed these parcels of land with othér land owned by him, cleared them and has' cultivated them continuously since under the belief that he was the owner thereof.
Whitlow brought this action against Shirey to recover possession of the land.
When a landowner, acting under a mistake as to the true boundary between his land and that of another, takes possession of land of another, believing it to be his own, incloses it, claims title to it and holds possession for the statutory period, he becomes the owner, for such possession and claim of.title, though founded on a mistake, would be adverse; but this would not be so if his intention was to claim only to the true line, wherever that may be, for then .the possession would not be adverse beyond such line. Wilson v. Hunter, 59 Ark. 628; 1 Cyc. 1037, and cases cited.
But, while the presiding judge correctly declared the law on this point, he also told the 'jury that if “the defendant within seven years before the beginning of this suit in any way recognized that the lines claimed 'by him were not the correct lines, or recognized that the land of plaintiff was in defendant’s field,” the jury should find for the plaintiff. Now, this instruction was not only incorrect, but under the evidence in this case it was misleading and prejudicial, For there was evidence tending to show that when, a short tíme before this action was commenced, the plaintiff informed defendant that he had some of plaintiff’s land inclosed with land in defendant’s field, the defendant asked him if he claimed the .rails, and afterwards offered to1 buy the land from plaintiff. This offer to purchase was to a certain extent a recognition of plaintiff’s claim, but at the time it was made the defendant had already been in possession of the land for over seven years. This continuous possession for the statutory period, if adverse, divested plaintiff and his grantor of the title, and gave it to defendant, and the mere fact that defendant afterwards in conversation with plaintiff recognized.the justness of his claim to the land did not divest the title from defendant or estop him from asserting such title. If one before the statutory period has run, and before he has acquired title by adverse possession, acknowledges or recognizes the title of the owner, such recognition will show that his possession is not adverse, and the statute of limitations will not commence to run against the owner until the adverse claimant repudiates the title of the owner. But recognition after the full statutory period has elapsed will not have that effect; for where title by limitation has become vested in the adverse claimant, a mere recognition of some other title does not revest the title acquired by adverse possession. Bradford v. Guthrie, 4 Brewst. (Pa.), 361.
Such recognition might be evidence tending to show that the possession of the claimant was not adverse, and that no title had in fact vested. But the weight to be given to such recognition would be a question for the jury, and the court could not declare, as a matter of law, that the mere fact that defendant had recognized the title of the defendant entitled plaintiff to a judgment for possession.
While it was proper for the jury to consider this evidence in determining the nature of the defendant’s possession, whether adverse or not, the fact that he had to some extent recognized the title of the defendant after the statutory period had elapsed is not conclusive against him, for, not being a lawyer, he might have done so in ignorance of the fact that adverse possession for over seven years gave him title, or he might have made the offer to purchase, nof in recognition of plaintiff’s title, but in order to buy his peace and avoid litigation. For these reasons we are of opinion that the instruction to which we have referred should not have been given..
The contention of counsel for appellant that there was no evidence that defendant fenced this land by mistake and no evidence on which to base the other instructions given by the court can not be sustained. The testimony of the' defendant himself shows that he fenced this land because he thought he owned it. But, if the last survey was correct, defendant was mistaken in believing that the land belonged to him. If he did not take it under a mistake, he took it knowingly, and committed a willful trespass. The presumption is that he acted in good faith, and fenced the land because he believed that it fell within the boundaries of his land. Taking into consideration the evidence tending to show that he did not at first dispute the right of plaintiff to hold up to the true line, we think there was enough evidence to submit to the jury. For the error indicated, the judgment will be reversed, and the case remanded for a new trial. It is so ordered. | [
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Hill, C. J.
This appeal questions the constitutionality of the act of the General Assembly approved April 1, 1901, entitled “An act to make lawful a certain kind of fence in certain portions of Miller County.” The first three sections are the ones under fire, and will be set out by the Reporter in the statement of facts.
The first point made is that the act is in contravention of section 18 of article 2 of the Constitution — the equal privileges and immunities clause. This contention was decided against the appellant in a similar case, State v. Smith, 71 Ark. 478.
The next point is that the act is repugnant to section 25, article 5, of the Constitution — the provision that no special law shall be enacted where a general law can be made applicable. From Boyd v. Bryant, 35 Ark. 69, to Waterman v. Hawkins, 75 Ark. 120, there has been a uniform holding that this provision is merely cautionary to the Legislature, and is not a provision en-forcible by the courts.
The next allegation is that the act violates section 8 of article 2 of the Constitution in regard to the due process of law therein guarantied, in that no public officer is provided or judicial proceeding to carry out the remedies which are authorized to be pursued. Practically the same argument is made against this clause that was made against a city ordinance in Ft. Smith v. Dodson, 46 Ark. 296. That argument was met by a quotation from the Supreme Court of Kansas, which is therein approved, as follows: “When nothing is attempted to be imposed upon the owner of the stock as damages or penalty, but only the reasonable cost of taking up, impounding and keeping the same, and suffi dent notice is provided for, and the ordinance authorized by the city charter, it is believed that. no court ever held the law or the ordinance founded thereon to be unconstitutional or invalid, although the sale may not be made under judicial process, although there may be no provision for a judicial investigation, except the general remedies to determine whether the law or the ordinance has been complied with, and although the notice provided for may not be a personal notice, but only a notice by publication or by posting.”
This answers every objection that is urged to this section.
Counsel attempt to differentiate the decisions sustaining the powers of cities by ordinance to impound and sell stock from the authority of the General Assembly to authorize the same in a given portion of the State, and say that, in the first place, the powers of cities is derived from section 3 of article 12 of the Constitution, and in the second place the power given to the cities and towns is an exercise of the police powers of the State, whereas the statute under consideration is not.
Section 3 of article 12 of the Constitution is a mere general delegation to the Legislature of the authority to provide by general law for the organization of cities and their classification, and incorporated towns, and restrict their powers of taxation, assessment, borrowing money and contracting debts, so as to prevent the abuse of such powers, and it does not purport to confer upon the cities any power itself, nor give the General Assembly any authority to confer greater power upon cities than it may confer elsewhere. All of the power of the State, not withdrawn by the Federal or State Constitution, rests in the General Assembly, and the fact that the General Assembly has delegated some of that power to the cities does not alter the nature of the power. These decisions, like the Dodson case and many others from other States along the same line, are decisions, not on a question of delegated power, but on a question of due process, and exactly the same reason will sustain them, whether the power is delegated to a city and exercised by it, or whether it comes from the primary source of power, the General Assembly of the State itself.
As to the second contention on this ground, that it is an exercise of the police power of the State, that depends on the definition of “police power.” Broadly speaking, the police power it all of the power of the State which has not been delegated to the general government and which is not restricted by the Constitution. While it is true that there are many definitions of that power and differentiations of the powers of the State, yet it is wholly immaterial what a power may be called, so long as it is known to exist. The General Assembly has all power for general legislation which is not delegated to the general government and which is not inhibited by the Federal or State Constitution. This is not an inhibited matter.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) 1. The uncontradi.cted proof by appellee and her witnesses shows that she was guilty of contributory negligence. She “deliberately” walked upon the track of a street railway after she had looked and knew that a car was coming. Fler only excuse was that, after she looked and saw the car, she “thought she would have plenty of time to cross,” and kept listening for the gong, but did not hear it until the car was upon' her. A more palpable case of contributory negligence it would be difficult to imagine. It was shown that her hearing was bad. This made it incumbent upon her to use the more diligently the unimpaired sense of sight, and to continue to use it until the danger had passed. St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134. Instead, after seeing and knowing that the car was approaching on the track she had to cross, she practically closed her eyes, relying upon her judgment as to the distance the car was away and the time she had to cross, and upon her imperfect hearing to. protect her in case she was mistaken. She was mistaken, and the mistake was inexcusable, and must eliminate every charge of negligence in the complaint except the “failure of the motorman to use the means at his command to stop the car after he was apprised of her perilous position.” It has been difficult for us to determine whether the evidence in favor of appellee, giving it the strongest probative force of which it is súsceptible (St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478), was sufficient to >suport the verdict on this allegation. The- testimony of the motorman himself, pertinent to this proposition, is as follows:
“I turned this way, and I saw the lady, and it seemed to me that I was fifty or sixty feet away from her at the time I saw ‘hei\ It seemed to me that she was almost standing between the two inside rails of the two tracks. I was on the right-hand side, going east, and she was in between the north track and the south track, in between the two rails, seemed to be standing perfectly still. I thought at that time she was standing to wait for the car to pass, would step hack and wait for me to pass, and as soon as I saw her she was too close for me to go at that speed; so, as soon as I saw her — my current was already turned off — the brake chain is a chain something like that (indicating) — -it is owing to how- you j erk the chain, but it generally takes a round and a half sometimes a little more, to bring the car to a stop — I tightened up the brake and slackened the speed of the car, and began ringing my bell, began tapping with this foot, and then I tied my brake, I think, and by that time I was getting pretty close to her-— it was just a matter of a few seconds — and by that time she had stepped from her original position towards my inside rail, and then I saw, whether she moved or not, I was going to strike her. She had got too close to me, and I reversed the car. I was then fifteen feet away from her when I reversed the car — I can not tell, but something like that. I reversed the car, tightened my brake a little more. The action of the current running backward, the momentum was a little greater than the current at that time, and the car slid on a little and struck her while it was sliding. It knocked her down, and then the car stopped. The platform passed on over her.”
This evidence discloses the fact that the motorman discovered the appellee when he was 50 or 60 feet from her, and he knew at. the time he discovered her that she was too close to the track for him to go at the rate of speed he was then going. He testifies that the highest rate of speed of his car, from the time he stopped to take on a little boy at Seventh Street till the accident occurred, could not have been over ten miles an hour. True, this witness says he thought appellee was going to step back, and and let his car pass. He shows that the current was turned off, and that he began tightening the brake and ringing the bell when he first saw her, and that, in a few seconds, when he was fifteen feet from her he saw that he must strike her; he then reversed the car. But the proof by one of the witnesses was that when he was about twenty feet from her he looked toward the woman, then turned and spoke to some one on the platform with him. The witnesses on behalf of the appellee say that the car was going all the way from twelve to eighteen miles per hour. No one except the motorman observed any diminution in the speed of the car from the time when the motorman says he first saw her. Only two or three sounds of the gong were heard'by any other witness, and those were very dull and faint. There was no constant tapping of the gong. One of the witnesses did not see the motorman do anything until just before the car struck appellee, when he was trying to lean over and trying to stop his car, and seemed to be hallooing.
The testimony of witnesses for appellee differs widely from the motorman’s on some points. It was for the jury to determine the facts from all the testimony. After a careful consideration of it, we have concluded that the jury might have found that appellee approached appellant’s car tracks oblivious of her danger; that appellant’s motorman discovered her peril in time, by the use of ordinary care, tc prevent running her down, and that he failed to exercise such care. The motorman from the time he saw her could have diminished the speed of his car more than he did. Indeed he might have stopped it, or reversed it. It is clear that he had observed her, and equally clear that she had not observed him. Ordinary care under the circumstances required something more to be done toward giving a warning than attempting to sound a gong that, at best, would only give forth a faint sound. When he saw that she did not hear or was not heeding the warning, he should have hallooed, put on the brakes, and reversed the car, all before he did. The verdict should be sustained under the principle, announced by this court in St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407, and cases there cited.
The instructions of the court were full and clear on every point presented by the pleadings and proof, and, in view of what we have said, it was not error for the court to refuse to take the case from the jury on account of the contributory negligence of appellee.
Affirm the judgment.
Hire, C. J., not participating. | [
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McCulloch, J.,
(after stating the facts.) The facts are undisputed. The Lawrence County Bank advanced money upon acceptances to the Culver Lumber & Manufacturing Company, while yet a going concern, which was used by the latter in paying off labor claims constituting liens upon lumber manufactured. The court decreed the debt to be a claim against the assets of the corporation with priority over the claims of other creditors. Was it proper to do so?
The indebtedness to appellee was created before the assets of the corporation passed into the hands of a receiver — how long before, it does not appear. It was no more nor less than a loan to the corporation, and, regardless of the use made of the money, created no higher grade of indebtedness than that of any other creditor of the concern. The statutes of this State give no lien for money so advanced; and, .if it be conceded that enough is shown to have entitled the alleged claims of the laborers to priority as liens, by no stretch of equitable principles can appellee enjoy the right of subrogation because the funds so advanced were used in discharging laborers’ liens. Being a voluntary loan of money, it affords no grounds for application of the equitable doctrine of subrogation.
If appellee’s contention be sound, then all claims against corporations for advances of money used in necessary operating expenses would be preferred, and the payment of equally meritorious claims prior in point of time would be postponed — the last coming first and the first last. We are not unmindful of the doctrine enforced by many courts in suits against railroad corporations to foreclose mortgages securing payment of bonds where preference is given to claims for operating expenses recently incurred. Fosdick v. Schall, 99 U. S. 235. This doctrine, even as applied to suits to foreclose mortgages on railroad property, is not without its limitations (Kneeland v. American Loan & Trust Co., 136 U. S. 89; Thomas v. Western Car Co., 149 Id. 95) ; but it has no application to the facts of this case, and will not warrant the giving of preference to appellee’s claim against the corporation for money loaned.
Reversed and remanded with directions to enter a decree not inconsistent with this opinion. | [
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McCulloch, J.
Bigelow sold and conveyed to appellant J. R. Bates a tract of land in Columbia County, containing 82 acres. The deed recited the payment of the price in full, but all of it was not in fact paid, Bates excuting to Bigelow two notes each in the sum of $50 for the unpaid part. Bates subsequently sold and conveyed to appellant W. W. Simpson this and another tract of land, his deed reciting a cash consideration paid in full. Bates’s notes to Bigelow have not been paid, and the latter brought this suit against Bates and Simpson to recover of Bates the amount of the notes with accrued interest, and te foreclose the vendor’s lien on the land. The notes have been lost, and Bates, in his answer, -alleged that they have been paid in full, but in his testimony admitted that this was not true, and that he still owed the notes.
Simpson pleaded that he purchased the land from Bates without notice of the outstanding incumbrances, and both he and Bates testified that he (Simpson) knew nothing of the outstanding unpaid notes when he purchased the land; that he purchased upon the faith of the recital of full payment in the deed from Bigelow to Bates. Bigelow testified that Simpson admitted to him that when he bought from Bates the latter informed him that the land was incumbered to the extent of about $100. Another witness whose deposition was taken by appellee testified that Simpson told him that he (Simpson) knew, when he bought the land, that the purchase money notes were outstanding, but that he had to buy the land from Bates in order to collect a debt which the latter owed. The consideration of the conveyance from Bates to Simpson was $350 of which $235 was in satisfaction of a pre-existing debt, and the balance of $115 was paid in cash.
The only point in the case is as to whether Simpson had notice of the outstanding notes and lien. The chancellor made a special finding that Simpson did have notice at the time of his purchase from Bates.
The testimony is about evenly balanced; Bates and Simpson testifying one way and Bigelow and witness Henderson the other.
The burden of proof was upon Simpson to show that he was an innocent purchaser without notice of the outstanding lien. Steele v. Robertson, 75 Ark. 228.
With this burden upon the defendants, and the testimony being so evenly balanced, we can not say that the finding of the chancellor is clearly against the preponderance of the evidence.
Decree affirmed. | [
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McCulloch, J.
The St. Louis, Iron Mountain & Southern Railway Company, appellee, instituted two suits in equity against the Board of Inspectors for the Desha Levee District of Desha County, and the Board of Inspectors for Redfork Levee District of Desha County, respectively, to restrain and prevent the enforcement of collection of levee taxes alleged to be illegally assessed for the year 1905 against its property situated in said districts.
In the complaint against the Desha Levee District it is alleged that the taxes illegally assessed and extended for the year 1905 against the railroad property amount to the sum of $3,425.50, whereas a legal assessment against said property would not exceed $986.88; and in the complaint against the Red-fork Levee District it is alleged that the taxes illegally assessed and extended against the railroad property amounts to $2,317.90, whereas a legal assessment would not exceed the sum of $542. The respective amounts of taxes alleged to be legally due were tendered to each of said defendants in the complaint, and the collection of any additional amount is sought to be prevented. Answers were filed in both cases, and the pleadings raised substantially the same question in each case. By express agreement entered of record, both cases were consolidated and heard by the chancellor upon the same evidence, and separate decrees were entered in both cases in favor of the plaintiff restraining the said defendants from enforcing the collection of taxes for that year in excess of the respective sums authorized. Both of the defendants appealed, and the. two cases have been heard together by the court.
The Redfork Levee District was created by a special act of the General Assembly at the session of 1891, and, as amended at the session of 1893, contained the following sections:
“Section 14. There shall be levied and collected in said districts annually on all alluvial lands therein that now are and would be benefited by levees, and which now are or shall become taxable for State revenue, a levee tax not exceeding two per centum of the assessed value thereof. That said board of inspectors shall ascertain in such manner as they may provide the lands in their respective districts that are subject to tax under the provisions of this act, and cause a list thereof to be filed with the clerk of the county court in the county in which said lands are situated on or before the second Monday of October of each year, and the clerks shall extend the tax levied for said district against said land.
“Section 15. It shall be the duty of the boards of inspectors at the regular October meeting to fix and determine the rate of percentage of tax necessary to be levied for the year then current, which rate of percentage shall be certified to the county court of the county in which said, lands are situated, and said courts shall 'proceed to levy the rate per cent, so certified at the time and in the manner other taxes are levied, and the same shall be by the clerk of the county extended upon the tax books of the county in a separate column to be provided for that purpose. Said board shall have power, and it is hereby made their duty, at their meeting in October to hear and determine .all questions as to whether any given tract of land is legally taxable for levee purposes under the provisions of this act, and all corrections or changes made in the list of lands subject to such tax shall be certified to the county court at the time the list is certified.” Acts 1893, p. 256.
The Desha Levee District was created by a special act passed at the session of 1893, and contained sections of precisely the same import and almost identically the same language as the two sections above quoted.
The General Assembly at the 1905 session enacted a special statute entitled “An Act to provide for the assessment of rail roads, rights of way, tramroads, roadbeds and railroad property situated within the boundaries of” the Desha Levee District and certain other levee districts therein named, which said statute contained the following sections:
“Section i. That the boards of directors of levee inspectors of Cotton .Belt District No. I, Phillips County, Arkansas, Laconia Levee District of Phillips and Desha Counties, Ark., and the Desha Levee District in Desha County, and the Linwood and Auburn Levee District, in Lincoln and Desha counties, Arkansas, be and they are hereby authorized and directed, through the proper authorities as now prescribed by law, to assess and levy annually upon the increased value of betterment estimated to accrue from the protection given against floods from the Mississippi River and its tributaries by reason of the construction and maintenance of levees in said districts and upon all lands, railroads, tramroads, rights of way, roadbeds and appurtenances in said levee districts, according to the betterment and increase in value, such tax as may be levied upon other property in said districts, and said assessment may be made per mile instead of per acre. Provided, that no error in the name and residence of the owners of railroads, or tramroads or land, or the description thereof, shall invalidate said assessment, if sufficient description is given to ascertain where the property sought to be taxed is situated.
“Section 2. That said assessment shall be made in the manner and form and by the authority now prescribed by law for the assessment of betterments on property situated in said respective districts.” • Acts 1905, c. 213.
The Redfork Levee District is not mentioned in the last-named statute, and the same has no application thereto.
The facts of both cases are practically undisputed. The Board of Inspectors of Redfork Levee failed to file with the clerk of the county, as required by the act of 1893, a descriptive list of the lands in the district ascertained to be subject to levee tax; and the Board of Inspectors of the Desha Levee District filed such list, but the same did not contain any description of the railroad property. These facts are agreed upon. The Board of Inspectors of the Desha Levee District took no action with reference to assessment of railroad property, further than.to pass and certify to the county court a resolution ordering that “a tax of eight mills be levied on each and every dollar of the assessed value of real estate, including railroad beds, subject to taxation.” Neither the number' of miles of railroad track nor description of other railroad property in the district was certified by the board of inspectors. The county clerk ascertained, according to his own method, from maps in his office, the number of miles of railroad track situated in the levee districts, and extended the same according to the rate fixed by the board of inspectors and the value per mile fixed by the State Board of Railroad Assessors. The buildings on railroad right of way and the value thereof were ascertained by the clerk in the same way, and the taxes so extended. This did not constitute a valid assessment of the railroad property. The act of 1893, hereinbefore quoted, expressly required that the board of inspectors of the levee district should ascertain what lands in the district would be benefited by the levee, and therefore subject to tax, and to cause a descriptive list thereof to be filed with the clerk of the county court in the county where the lands are situated. It does not authorize any other person or board to make such ascertainment, and the attempted ascertainment and extension of taxes by the county clerk was wholly unauthorized. The assessment as made was void and not enforcible.
Nor does the act of 1905 authorize such procedure by the clerk. 'That statute obviously contemplates some action of the board of inspectors with reference to the ascertainment of the particular property to be taxed and the value thereof. This much is certain, though the meaning of the act, so far as it is applicable to the Desha Levee District, is somewhat obscure. Without undertaking to further construe this statute — it is unnecessary to do so in this case — -we hold that there was no valid assessment of levee tax on the railroad property in the Desha Levee District, and that the act does not apply to the Redfork Levee District.
No descriptive list of railroad property subject to levee taxation having been filed by the board of inspectors in either of said districts in accordance with the provisions of the act of 1893, the assessments can not be sustained under those statutes. The decrees in both cases are affirmed. | [
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Hill, C. J.
An examination of the rejected evidence, the memorandum alleged to have been signed by 'Hickman and the final contract signed by Lower and Gann, will show that two questions have arisen:
1. Was it competent to prove an oral warranty of -the capacity of the sawmill ?
2. Was it competent to prove' that the words “sawmill cap. 20,000” on the memorandum meant a warranty that the sawmill had a capacity to cut 20,000 feet of lumber per day?
1. A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument it is incompetent to engraft upon it a warranty proved by parol. The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money or part of a transaction where there are other parts of it other than warranties. It may be a complete contract signed by both parties and comprehensive and exhaustive in detail, and contain many mutual agreements, terms and stipulations, or it may be a simple ibill of sale, or sale note evidencing the sale. The principle is the same in any of these transactions, and oral evidence of a warranty is almost universally excluded when a complete written instrument evidences the sale. It is not important that the instrument be .signed by both parties, for acceptance of the other may be equally binding, and the principle here invoked is as often applied to unilateral as to bilateral instruments. For the statement of the principles involved and the many applications thereof see: 4 Wigmore on Evidence, § 2434; and review in notes; 1 Elliott on Ev. § 580; Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510; Hanger v. Evins, 38 Ark. 339; Hooper v. Chism, 13 Ark. 496; Reed v. Wood, 9 Vt. 285; Naumberg v. Young, 44 N. J. L. 331; Diebold Safe & Lock Co. v. Huston, 55 Kansas, 104; Am. Mfg. Co. v. Klarquist, 47 Minn. 344; Miller v. Municipal E. L. & P. Co., 133 Mo. 205; McCray Ref., etc., Co. v. Woods, 99 Mich. 269; Mast v. Pearce, 58 La. 579; Grand Ave. Hotel v. Wharton, 79 Fed. Rep. 45; Buckstaff v. Russell, 79 Fed. Rep. 611; Galpin v. Atwater, 29 Conn. 93.
The evidence attempting to prove a warranty by parol was properly rejected.
2. According to the evidence of Lower and Gann, Hickman made them a verbal proposition and put into writing a statement of what constituted the mill output, and at the bottom of this list of property is added: “Sawmill cap. 20,000.” This meant, according to their testimony, that the sawmill had a capacity to cut 20,000 feet of lumber per day. The contract signed by Lower and Gann shows it is a complete contract between the parties embracing the subject-matter of their negotiations, except the capacity of the sawmill. The property listed in the contract is described with minuteness and detail, and not in general terms, as in the memorandum. The contract contains every thing in the memorandum except the capacity, and much more. It stipulates terms and times of payment, the security for payment,’ a reservation of title, the rights of possession before and after default, and that in case of default in full payment the partial payments shall be considered rent. If the capacity of the mill had been omitted from the final contract by accident, mistake or fraud, on proper proof equity would grant relief. Pickett v. Ferguson, 45 Ark. 177; Goerke v. Rodgers, 75 Ark. 72; Mast v. Pearce, 58 Ia. 579; 4 Wigmore, Evidence, § § 2413, 3416.
Antecedent propositions, correspondence, prior writings, as well as oral statements and representations, are deemed to be merged into the written contract, which covers the subject- matter of such antecedent negotiation, when it is free of ambiguity and complete. Pickett v. Ferguson, 45 Ark. 177; Richardson v. Comstock, 21 Ark. 69; McClurg v. Whitney, 82 Mo. App. 625; 17 Cyc. pp. 596, 598.
There is nothing here to impeach the integrity of the. final draft of the contract; and as it embraced everything in the prior negotiations and memorandum except the capacity of the sawmill, it must be presumed that the parties did not intend to engraft into the contract any warranty of the capacity of the mill, and it can not be engrafted upon it by parol.
The case was properly tried on the issue raised as to false representations, and in strict conformity to the last enunciation of this court upon that subject. La. Molasses Co. v. Fort Smith Wholesale Gro. Co., 73 Ark. 542.
Affirmed.
Riddick and McCulloch, JJ., dissent. | [
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Hill, C. J.
This is the third appearance of this case here. See Planters’ Mutual Ins. Co. v. Loyd, 67 Ark. 584, and Planters’ Mutual Ins. Co. v. Loyd, 71 Ark. 292. On the third trial the court directed a verdict for the insurance' company, and Loyd appealed.
It is contended that facts were brought out on the last trial not heretofore in the record which entitled appellant to go to the jury on the new issues. The matters relied upon are these: (1) That Loyd had an insurable interest in the property by virtue of being surety on a bond for the purchase price of the property; and (2) that he had an insurable interest by reason of an estate by the curtesy initiate in the property.
1. The facts regarding the suretyship brought out on the last trial were these: Kiser obtained judgment against Loyd for $74 for material going into the construction of the house covered by the insurance policy in suit, and the property was sold under it on 22d December, 1896. Loyd bougdit it in his wife’s name, and he and Kinsworthv went on the bond for purchase money. On January 25, 1897, this insurance policy was written for a term of three years, $750 on the house and $250 on the personalty, and on March 2, 1897, it was destroyed by fire. Kinsworthy paid the bond, whether before or after the fire is not disclosed.
The contention is that the suretyship on this bond gave Loyd an insurable interest in the property, for whose purchase it was given, in that he could be subrogated to the lien of the payee when he discharged it, and, the policy being entire and a valued one, the insurance had something to rest upon, and was not a “wager contract.”
Cases are cited to sustain this contention where creditors, sureties and guarantors were, under the facts of those cases, held to have an insurable interest in the property for which their obligation was incurred. These cases have been critically examined, but none has been found among them, nor in an independent research into the subject, which sustains such a remote and uncertain interest in the property as the one in question to be an insurable interest which will support a policy asserting ownership in the assured. Plere there is a bare suretyship for a debt not due when the policy was written, and the debt is only one-tenth the insured value of the house; and there is no showing of any necessity to resort to this property for indemnity in case of default by the principal; neither when the policy was written nor when the fire occurred had Loyd expended one cent by reason of his surety-ship, nor at any time since, as the bond was paid by Kinsworthy, the other surety. Loyd never had any lien upon the property, in law or equity, nor any control or custody of it as security for his liability. Instances' where sureties, guarantors and indorsers have an insurable interest in the subject-matter for which their suretyship, guaranty or indorsement was given may be found in i May on Ins. § § 80-83, and notes. The facts herein do not bring Loyd within any of the principles which give sureties an insurable interest in the subject-matter for which the suretyship was incurred.
2. Proof was made that a child was born alive of the marriage of Dr. and Mrs. Loyd, and it is argued that this created in him an estate by the curtesy initiate in his wife’s realty. At common law, and in this State until the adoption of the Constitution of 1874, this would have created such estate in the husband, and such estate is an insurable interest. 1 May on Ins. § 81 and authorities cited.
It was held in Neely v. Lancaster, 47 Ark. 175, and reiterated in Hampton v. Cook, 64 Ark. 353, that the Constitution has abolished this estate, and only left the possibility of the estate by the curtesy consummate. Other questions were pressed in oral argument, but they are not open to the court now, having been settled in former appeals.
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Wood, J.
Rule nine requires the appellant, or plaintiff in error, to file with the clerk of this .court “an abstract setting fo'rth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to this court for decision.”
The “material parts of the pleadings” are' not set forth, but only certain general deductions of counsel as .to what the pleadings show. It is impossible for us to tell whether these deductions áre correct or not. The conclusions of counsel give us no clear and adequate conception of what the issues are. The testimony is set forth in such fragmentary and disconnected way as not to enable us to understand the real merits of the controversy. Moreover, three separate findings of the court are set forth toward the latter part of the brief, but there is nothing in the entire brief to show that there were no other findings. On turning to the transcript we discover two other findings numbered 4 and 5, upon which the decree of the court might have been based. These are not abstracted, and no evidence bearing upon them. The decree itself is not abstracted. Rule nine is designed to obviate the necessity for each judge to explore the transcript of the record. It is intended to conserve the time of the court and facilitate the' disposition of causes. It is impossible to determine if there be error in this case unless the individual judges shall “go through” the transcript. . This we decline to do, and the decree is affirmed. | [
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Battle, J.
Wolfort sold to Thomas Jones and James Garrett a mule for $185, with the understanding and on condition that, if it did not suit or was not satisfactory, he would let them have' another in lieu of it. They executed to him a promissory note for the purchase money, and a mortgage to secure the payment of the same. The mule did not prove satisfactory, and they returned it, and Wolfort let them have another in lieu of it, as he agreed to do, and the latter died from ill treatment. Jones then brought suit in the Pulaski Chancery Court to require Wolfort to satisfy the note and mortgage; and Wolfort filed a cross-complaint, and asked that the mortgage be foreclosed. The court rendered a decree against Jones for so much of the note as remained unpaid, and for the foreclosure of the mortgage.
The return of the mule first sold did not. satisfy the note or mortgage. One of the terms of the sale was that it might be returned and another substituted for it, which .was done. The return did not satisfy the note or release the makers. That was not the contract. The effect of it and the substitute was to leave the parties and note and mortgage in the same condition they would have been had the second mule been sold, instead of the first, and had been the only mule sold. | [
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Battle, J.
William T. Hall, James L. Sexton, and W. G. Sexton owned certain lands as tenants in common. On the first day of January, 1888, James L. Sexton executed to Samuel M. Jarvis, as trustee for the Jarvis-Conklin Mortgage Trust Company, a deed of trust by which he conveyed to him in trust those and other lands to secure the payment of a certain note executed to the company by James L. Sexton. On the 5th day of August, 1892, W. G. Sexton died intestate, leaving his wife, Fannie Sextoh, and his two children, Nina and Curtis Sexton, his sole heirs at law, and on the 26th day of September, 1892, W. A. Cunningham was appointed administrator of his estate. On the first day of May, 1895, James L. Sexton died intestate, leaving surviving him his grandchildren, Nina and Curtis-Sexton and Boyce Hall his sole heirs at law. Letters testamentary were granted to John K. Gibson. The deed of trust and note were assigned to Alfred Crebbins. On the 27th day of June, 1895, William T. Hall brought suit against Roland R. Conklin and Joseph C. Willett, as receivers of the Jarvis-Conklin Mortgage Trust Company, Samuel Jarvis, as trustee, W. A. Cunningham, as administrator of W. G. Sexton, John K. Gibson, as executor of James L. Sexton, deceased, Fanny Sexton, Curtis Sexton, Nina Sexton, and Boyce Hall for partition of the certain lands.
Nina and Curtis Sexton being minors, H. L. Ponder was appointed their guardian ad litem, after they had been served with process. On the 10th day of March, 1896, he, as such guardian ad litem, filed an answer to the complaint of plaintiff in which he denied specifically all the allegations therein. On the same day Alfred Crebbins entered his appearance as a party defendant, and filed an answer and cross-complaint, in which he alleged that he is the owner of the note and trust deed executed by James L. Sexton, deceased; “denied that W. T. Hall is the owner of any or all of the land embraced in the complaint; alleged that James L. Sexton at the time.of his death was in possession of all the land, claiming title thereto adverse to plaintiff; that the loan by Samuel Jarvis, trustee, was made for the purpose of buying the lands in controversy; that plaintiff and W. G. Sexton, deceased, signed the application for the loan made to J. L. Sexton; that the loan was negotiated upon the application, which was part of the contract, and is yet in force; ■and that, for some cause unknown to said Jarvis-Conklin Mortgage Trust Company, W. G. Sexton and W. T. Hall failed to join in the execution of said deed of trust.” He asked that the deed be reformed, and that the suit of Hall be dismissed.
On the first day of January, 1898, Crebbins “filed an amendment to his answer and cross-complaint which alleges that the deed of trust and the note secured by it are past due and unpaid ; made copies of them and the assignment of them to Alfred Crebbins, and a copy of the renewal of the deed of trust exhibits to the amendment; and alleges that defendants Nina and Curtis1' Sexton are the heirs at law of W. G. Sexton, deceased; that Fannie Sexton is the widow of W. G. Sexton, deceased; that W. A. Cunningham is the administrator of W. G. Sexton, deceased ; that Lois Hall is the sole heir at law of the said-Hall, deceased; and that said children Curtis and Nina Sexton and Lois Hall are the sole heirs at law of J. L. Sexton, deceased, the original grantor of the said deed of trust; that there has been a guardian ad litem appointed for said minors in the original action, and asked the court to re-appoint said guardian for this cross-complaint. He asked that his deed of trust be reformed and declared a superior claim to any claim that the defendants Nina Sexton, Curtis Sexton, Fanny Sexton, W. T. Hall, J. K. Gibson, executor of the estate of J. L. Sexton, deceased, or W. A. Cunningham, as the administrator of the estate of W. G. Sexton, have in said land, that cross-complainant have judgment ordering sale of all of said lands if necessary to pay him the sum of two thousand dollars with interest.”
Ponder, the guardian ad litem of the minor defendants, never answered the cross-complaint of Crebbins.
On the 9th day of March, 1898, upon hearing the cause, the court found that there was due to Crebbins on the note and deed of trust the sum" of $2,028.30, and decreed that the deed of trust be so reformed as to embrace “all rights, title or interest of said W. T. Hall, and defendants Nina Sexton and Curtis Sexton, heirs of W. G. Sexton, deceased, and Lois Hall,” and that, “if said heirs do not pay said amount, said deed shall, upon demand of said Alfred Crebbins, or his assigns or attorney, be foreclosed, and all of said lands be sold, or so much thereof as may be necessary to satisfy said deed of trust and bond.”
At' the April, 1905, term of the Craighead Probate Court J. M. Hardin was appointed guardian of Curtis and Nina Sexton; they being then and now minors. On the 12th day of September, 1905, on application of this guardian, the clerk of this court granted an appeal to them from the decree of the court.
The court erred in rendering a decree against Curtis and Nina Sexton before they answered the cross-complaint of Crebbins. Section 6023 of Kirby’s Digest provides that “no judgment can be rendered against an infant until after a defense by a guardian,” and this court said in Pinchback v. Graves, 42 Ark. 222, that “this defense should not be a mere perfunctory and formal one, but real and earnest. Pie should put in issue, and require proof of, every material allegation of a complaint prejudicial to the infant, whether it be true or not. He is not required to verify the answer, and can make no concessions on bis own knowledge. He must put and keep the plaintiff at arm’s length.” Evans v. Davis, 39 Ark. 235; Driver v. Evans, 47 Ark. 297; Morris v. Edmonds, 43 Ark. 427; Varner v. Rice, 44 Ark. 236; Pillow v. Sentelle, 39 Ark. 61.
The appeal was properly granted by the clerk of this court. Ex parte Trapnall, 29 Ark. 60; Davies v. Nichols, 52 Ark. 554.
The decree of the chancery court is reversed as to the appellants, and the cause as to them is remanded for proceedings consistent with this opinion. | [
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McCulloch, J.
The plaintiff, James McCutchen, is the owner of a tract of land in St. Francis County across which runs the line of railroad now operated by the defendant, Chicago, Rock Island & Pacific Railway Company as lessee of the Choctaw, Oklahoma & Gulf Railroad Company; and he sues to recover damages alleged to have been sustained by reason of flooding of the land with water which prevented, during the year 1904, the cultivation of a crop.
He alleges in his complaint that the railroad company, in raising its roadbed during the year 1901, constructed an embankment which obstructed a ditch draining the surface water from plaintiff’s land, and that, “because of the failure of the defendant to keep open the said ditch, the water at that point collects and stands on plaintiff’s land, and so did collect and stand on it during the crop season of 1904 as to overflow six acres of it, and prevent plaintiff from cultivating it, or from using it for any purpose.”1
It appears from the evidence that the railroad company, in raising its roadbed for a sidetrack, obstructed the ditch so that it would not convey the water from plaintiff’s land, and allowed the water to accumulate on the land and prevent the making of a crop. The railroad was not constructed across the ditch, but a side track was raised so close to it that the dirt slides off the embankment into the ditch. The railroad company caused the ditch to be opened up several times, but allowed it to fill up again with dirt from the embankment. The plaintiff planted corn on the land in the spring of 1904, and when the corn was about waist high it was flooded with water and ruined by reason of the obstruction of the ditch.
This action was commenced March 8, 1905, and the defendant introduced in evidence and pleaded in bar of this action the record in an action commenced on February 28, 1904, by the plaintiff against the Choctaw, Oklahoma & Gulf Railroad Company to recover damages for flooding of the same tract of land by reason of. obstructing the ditch in question. The complaint in the former action contains substantially the same allegations as the complaint in the present case, and the record shows that there was a judgment by consent of parties rendered on September 9, 1904, in favor of this plaintiff for the sum of $50 damages. The defendant also pleaded the statute of limitation against plaintiff’s right of recovery.
The jury returned a verdict in favor of the plaintiff for $36 damages. Judgment was rendered accordingly, and the defendant appealed.
It is contended by appellant that the building of the embankment and consequent obstruction of the ditch was a permanent injury to plaintiff’s land, as defined by this court in St. Louis, I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360; that the judgment in the former action is a bar to further recovery; and that, the obstruction to the ditch having been caused-more than three years before the commencement of this action, the same is barred ty limitation. In the Anderson case just cited, the railroad was constructed across a natural ditch or drainway, and the railway company subsequently caused a trestle to be closed up and the drainage stopped, and the court held that the obstruction constituted a permanent injury, and that the statute of limitations began to run against an action for damages from the time the trestle was closed.
In St. Louis, I. M. & So. Ry. Co. v. Biggs, 52 Ark. 240, the court said: “Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and it may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. * * * But, when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries.” The same doctrine was applied to a similar state of facts in Railway Co. v. Cook, 57 Ark. 387, and in St. Louis, I. M. & S. Ry. Co. v. Stephens, 72 Ark. 127.
The distinction between the Anderson case and those last cited is that in the former there was a complete obstruction of the drainway, thus creating a permanent obstruction which necessarily caused a permanent injury, whilst in the latter there was only a partial obstruction which rendered the drainway insufficient at times, and made the future injury dependent upon the seasons and the quantity of rainfall. This distinction is pointed out and observed in the recent case of St. Louis S. W. Ry. Co. v. Morris, 76 Ark. 542.
Now, the testimony in the case at bar does not establish a permanent obstruction. The embankment was not built across the ditch, closing it up as in the Anderson case. The filling in of the ditch was caused by dirt sliding into the ditch from the embankment from time to time, and the negligence of the employees of the company in failing to clean it out. This could easily have been done, and this omission can not be regarded as a permanent injury to the land.
In the case of Baker v. Allen, 66 Ark. 271, where damages were sought to be recovered for an alleged permanent injury to land from the building of an embankment less than two feet high to prevent the passage of surface water, the court said: “When we consider the ease with which this small embankment could be opened or closed, and also the purpose of the tenant in closing the same, it seems clear that the act of such tenant did not constitute a permanent injury tó plaintiff’s land. * * * As the levee could easily be opened, and such prospective injury avoided, it would be unjust, as well as unreasonable, under such circumstances, to presume conclusively that the nuisance would be continual, and the injury made permanent.”
For still another reason, we think that the injury complained of in this case can not be regarded as permanent so that full compensation can and must be had in one suit. It was not caused by any wrongful act of the railroad company in building an embankment across the ditch and thus closing it up, but the injury resulted, from a negligent failure to open the ditch when obstructed by an accumulation of dirt which was allowed to fall in from the embankment. It would be unjust to presume that the negligence will continue, to the permanent injury of the land, and the owner may recover for each successive injury sustained.
We are therefore of the opinion that the right of action for the injury complained of was not barred either by the statute of limitations or by the judgment in'the former action.
Error of the court is also assigned in permitting the plaintiff to read in evidence the contract for lease of the railroad between defendant and- the Choctaw, Oklahoma & Gulf Railroad Company. It was the duty of the defendant, as lessee and operator of the road, to keep the drainway open. So the provisions of the contract were immaterial to'the issue, and the introduction of the contract in evidence was harmless.
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Jack Holt, Jr., Chief Justice.
The appellants, National Bank of Commerce, Conservator of the Estate of Linda Hoffman; Steve Hoffman; and National Bank of Commerce, Guardian of the Estate of Brett, Kent, and Allison Hoffman, minors, brought suit against the appellees, Dr. Sam Beavers and Dr. Shelby Woodiel to recover damages for injuries allegedly arising from the negligent treatment of Linda Hoffman for a condition known as temporomandibular joint dysfunction, or “TMJ.”
Appellants contend that Mrs. Hoffman’s treatment for “TMJ” consisted of two phases. It is alleged that Dr. Woodiel improperly treated Mrs. Hoffman during phase one and then negligently referred her to Dr. Beavers, who was not qualified to treat her disorder. It is contended that Dr. Beavers rendered negligent care to Mrs. Hoffman during phase two of her treatment. The jury found no negligence on the part of either Dr. Woodiel or Dr. Beavers and returned a verdict in their favor.
On appeal, appellants raise six points of error, all of which have no merit.
I. SUPPRESSION OF TESTIMONY
Appellants first contend that the trial court erred in the suppression of testimony that prevented the jury from being informed of the true facts surrounding the occurrence. They claim the jury was “only permitted to be informed of the tip of the iceberg.” This allegation appears to be based on appellants’ assertion that the suppressed evidence was admissible on the issue of punitive damages, i.e. to show wanton and willful conduct on the part of Dr. Woodiel and Dr. Beavers, a theory rejected by the trial court. See National By-Products, Inc. v. Searcy House Moving Co., Inc., 292 Ark. 491, 731 S.W.2d 194 (1987) (award of punitive damages justified only where evidence indicates defendant acted wantonly or with such conscious indifference to consequences that malice may be inferred).
In analyzing the record before us, we note that the appellants do not furnish specific arguments in support of the proffered testimony which was excluded by the trial court; rather, this court is cited, generally, to various rules of the evidence, to case law concerning the admissibility of same or similar occurrences, and to excerpts from a Delaware case discussing the admissibility of evidence where punitive damages are involved. See Strauss v. Biggs, 525 A.2d 992 (Del. Supr. 1987).
Unlike the present case, the defendant in Strauss conceded liability for compensatory damages, leaving the jury with only the amount to be determined. The plaintiffs theory in Strauss was that the defendant was running a “podiatric mill” for profit, and the plaintiff was permitted to place into evidence additional acts of negligence to show the defendant’s conduct was deliberate, thereby warranting punitive damages.
Here, appellants similarly theorize that Dr. Woodiel and Dr. Beavers were running a “dental mill” and that testimony regarding various acts of negligence and the competency of both doctors should have been admitted to show their willful and wanton misconduct surrounding Hoffman’s treatment. In support of their theory, appellants furnished to the trial court proposed testimony and numerous depositions, supported by writings labeled “’’Partial Pre-trial Brief on Subjects of (A) Punitive Damages and (B) Admissibility of Evidence of Greed and Other Infractions in Support of Punitive Damages.” In this brief, appellants name and diagram the various witnesses, their relationships to one another, and their purported testimony — all in support of their claim for punitive damages.
Before we reach a determination of admissibility of this tendered evidence in support of punitive damages, our initial, fundamental inquiry as to admissibility must be predicated on the question of whether or not it is relevant to the events in question. To be admissible, the proferred testimony must necessarily have been related to the specific treatment of Linda Hoffman. Evidence which is not relevant is not admissible. A.R.E. Rule 402. In addition, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cummulative evidence.” A.R.E. Rule 403. The trial court has broad discretion in decisions of admissibility, and we will not reverse its ruling absent an abuse of this discretion. Northwestern Nat’l Life Ins. Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990).
We further note that the jury found no negligence and, consequently, awarded no damages. Since there can be no award for punitive damages, absent an award for compensatory damages, (see Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988)), all testimony submitted, or not submitted to the jury in support of punitive damages is of no moment. Even if the trial court was wrong in the suppression of testimony on the basis of the issue of punitive damages, its actions, at most, would constitute harmless error since the jury failed to return a verdict for consequential damages. See Haseman v. Union Bank of Mena, 268 Ark. 318, 597 S.W.2d 67 (1980).
Appellants presented eleven witnesses over seven of the twelve days of trial. In addition, they asked the trial court for rulings of admissibility of deposition testimony from a score of witnesses, only some of which are being challenged on appeal. Examination of this evidence reflects that it either failed to meet the threshold test of relevancy under A.R.E. Rule 402 or, if relevant, was subject to exclusion under A.R.E. Rule 403 or that it was tendered by the appellants for the purpose of establishing the issue of punitive damages, which, as previously mentioned, is of no moment.
II. DISMISSAL OF HOFFMAN CHILDREN
In their second point for reversal, appellants contend the trial court erred in dismissing the Hoffman children from the lawsuit via summary judgment. Appellants claim the children had a valid cause of action against Dr. Beavers and Dr. Woodiel for “setting in motion a chain of events in a domino-effect fashion,” the effect of which was to cause Mrs. Hoffman to inflict physical, psychological, and emotional injuries on her children. Allegedly, Dr. Beavers’ maltreatment resulted in such pain to Mrs. Hoffman as to cause her to lose control and abuse the children, thereby requiring that they be placed under the care of a psychologist.
Appellants concede the Arkansas does not recognize a cause of action for loss of parental consortium (see Gray v. Suggs, 292 Ark. 19, 728 S.W.2d 148 (1987)) and, instead, characterize the above mentioned “domino effect” as constituting a claim for infliction of emotional distress. Notwithstanding our unwillingness to extend this cause of action as far as appellants advocate, we need not consider its merits and whether dismissal was proper since the jury’s verdict renders any potential error harmless. See Haseman v. Union Bank of Mena, supra.
The jury found that Dr. Beavers was not negligent in his treatment of Mrs. Hoffman. The children’s claim that Dr. Beavers either negligently or intentionally treated their mother improperly, and thus indirectly inflicted emotional distress on them, becomes irrelevant. Any evidence introduced by the children, in furtherance of their claims of emotional distress, would not have affected the jury’s decision with regard to the issue of Dr. Beavers’ conduct. We will not reverse for error where it is evident that such error did not affect the verdict. Insured Lloyds v. Mayo, 244 Ark. 802, 427 S.W.2d 164 (1968).
III. VOIR DIRE
Appellants next contend that the trial court erred in prohibiting their counsel, during voir dire, from reading the names of the individual members of each of the law firms representing the defendants. This claim is also without merit.
Appellants provide in their brief and appendix the following exchange with the trial court during voir dire examination:
MR. WHETSTONE:
Now the defendants here are represented by two different law firms here in town. And even though the lawyers present in this case — you may not be involved with them in any way, if you are in anywise — you or any member of your immediate family have been represented by ,or been involved in any way with any member of their firm, it would be pertinent information that we should know and properly we should know.
That being true, I’m going to call the names —
THE COURT: Mr. Whetstone, I don’t want you to go through the name of every lawyer in every law firm, sir. I’ve asked them if they know any attorneys or have ever been represented by any attorneys in those law firms and I trust this jury to know who they’re acquainted with. I just don’t want to take the time of naming off every lawyer in the law firms. That’d take a long time to do that, sir.
MR. WHETSTONE: I shouldn’t go into that any further at all?
THE COURT: No, sir. I’ve asked them and we’ve both asked them if they know any lawyers in those law firms and I trust these people to know who they know of the attorneys. It’s not like they know a lot of attorneys out there, I’m sure. I’d rather we didn’t take the time, Mr. Whetstone. I’m sorry, sir. Let’s move on.
[Emphasis added.]
In charging the trial court with error, appellants quote from Ark. Code Ann. § 16-33-304 (1987), which pertains to challenges to the trial jurors in criminal proceedings rather than Rule 47 of the Arkansas Rules of Civil Procedure. Rule 47 provides:
(a) EXAMINATION OF JURORS. The Court shall either permit the parties or their attorneys to conduct the examination of prospective jurors or itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper.
It is obvious in this instance, that the court conducted the voir dire examination in which he asked the panel whether or not they knew, or had been represented by, any of the attorneys or law firms involved in this litigation, and then determined that he did not deem it proper or necessary to permit the attorneys to supplement his inquiry.
There are no indications from the record that any of the jurors did, in fact, know any of the attorneys representing Dr. Woodiel and Dr. Beavers, nor did they identify any relationships with the attorneys’ law firms, and we think it is sufficient to say that the appellants have not demonstrated any prejudice. The extent of juror examination rests within the trial court’s discretion and, absent a showing of abuse, we will not reverse the matter on appeal. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989).
IV. IMPEACHMENT
For the fourth point of error, appellants argue that the trial court erred in permitting defense counsel to impeach Melissa Rollins through questioning of a subsequent witness, Peggy Hall, without first laying a proper foundation.
Peggy Hall, Dr. Beavers’ office manager, testified that either at the time, or after Melissa Rollins was discharged by Dr. Beavers, Ms. Rollins told Ms. Hall, “I will get Dr. Beavers.”
Appellants contend that Ms. Hall’s testimony with regard to this statement was in error of Rule 613(b) of the Arkansas Uniform Rules of Evidence, which states:
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require
Appellants argue that Ms. Rollins was not given the opportunity to explain or deny the statement before Ms. Hall was questioned about it. We disagree. Rule 613(b) is inapplicable in this situation since nothing in the record indicates Ms. Rollins ever made a remark either in accordance with, or in opposition to, the statement testified to by Ms. Hall. Therefore, no “prior inconsistent statement” was at issue, and the court’s overruling of the appellants’ objection on this basis was correct.
V. REPUTATION TESTIMONY
Appellants submit, for their fifth point of error, that the trial court erred in suppressing testimony from Dr. George Lay regarding his knowledge of Dr. Beavers’ reputation for truthfulness among his associates.
Dr. Lay, a witness for appellants, was questioned regarding his knowledge of Dr. Beavers’ reputation for honesty in the community during direct examination. When Dr. Lay stated that he had only met Dr. Beavers once, and was not aware of his reputation in the community at large, the trial court refused to allow him to testify further on this subject. Appellants objected but failed to proffer additional testimony from Dr. Lay. We will not find error on a trial court’s ruling that excludes evidence when there is no proffer. Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 687 S.W.2d 114 (1985).
VI. NEWLY DISCOVERED EVIDENCE
Finally, appellants argue that the trial court erred in refusing to grant their motion for a new trial on the basis of newly discovered evidence. The evidence consisted of a video tape and transcript of a television documentary produced by ABC’s “20/ 20,” a weekly news program. The program, which aired following the conclusion of the trial, revealed that a Dr. Owen Rogel was running a “TMJ dental mill” similar, appellants alleged, to the one being operated by Drs. Beavers and Woodiel.
Dr. Rogel was acknowledged as an expert authority by one of the appellant’s expert witnesses; however, he was neither a party nor a witness in the lawsuit, and we fail to see the relevance of the t.v. program to the present case. The granting of a new trial based on newly discovered evidence is not a favored remedy, and a trial judge is vested with great discretion in acting on such a motion. St. Louis Southwestern Rwy. Co. v. White, 778 S.W.2d 483, 302 Ark. 193 (1990). The motion was properly denied.
JANUARY 28, 1989
Bernard Whetstone, P.A., by: Bernard Whetstone and Bob Davidson, for appellant.
No response.
Appellants have asked that we reassess and retax costs. Appellants’ points relied on for reversal were vague and over-broad; we find that the appellees’ designation of the record was necessary for their response and thus decline appellants’ request.
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Jack Holt, Jr., Chief Justice.
The appellant, St. Louis Southwestern Railway Company (SSW), appeals from a decision of the Pulaski Country Chancery Court holding that for state tax purposes, SSW is required to include certain- nonbusiness income in calculating its net operating losses for 1980 and 1981. We affirm.
SSW initially brought suit in the Chancery Court of Pulaski County against the Commissioner of Revenue (Commissioner) asserting claims for refunds for the tax years 1976 and 1977. SSW later filed a second suit asserting claims for refunds for 1978 and 1979 which was consolidated with the first action.
While this litigation was pending, the Commissioner notified SSW of its disagreement with certain items contained in SSW’s tax returns filed for 1981 through 1983. Because some of the issues raised were identical to the issues pending before the court in the consolidated action, it was agreed that the court’s decisions in the consolidated action, with regard to those issues, would be controlling. The parties eventually reached a settlement agreement concerning all tax years before the court, and the chancellor entered an order dismissing the litigation.
As a result, SSW filed amended returns for the tax years in question in accordance with what it believed to be terms of the settlement agreement. The Commissioner, however, disputed SSW’s method of computing its net operating losses for 1980 and 1981. The Commissioner argued that certain nonbusiness income should be added to the gross income in calculating net operating losses which resulted in the elimination of the 1980 net operating loss carryforward and a reduction of the 1981 carryforward.
SSW filed a motion with the Pulaski County Chancery Court to reopen the case and enforce the settlement agreement or, in the alternative, to determine correct computation of net operating loss. SSW argued that reconsideration of the settlement agreement was barred by res judicata; however, the chancellor agreed with the Commissioner that because computation of net operating loss was never at issue in the previous actions but, rather, arose from the agreement itself, litigation on the merits was proper.
After consideration of the briefs in support of both arguments, the chancellor held in favor of the Commissioner. From this ruling, SSW appeals.
For reversal, SSW contends that the chancellor erred by including nonbusiness income, allocated to other states under Ark. Code Ann. § 26-51-701 through -723 (1987), in the computation of its net operating loss under Ark. Code Ann. § 26-51-427 (1987).
The pertinent part of section 26-51-427 provides as follows:
(2) As used in this section, the term ‘net operating loss’ is defined as the excess of allowable deductions over gross income for the taxable year, subject to the following adjustments:
(A) There shall be added to gross income all nontaxable income, not required to be reported as gross income, as provided by law, less any expenses properly and reasonably incurred in earning nontaxable income, which expenses would otherwise be nondeductible[.] (emphasis added)
The income items in question include rents, interest, and dividends which, as acknowledged by both parties, clearly fall within the definition of gross income. See Ark. Code Ann. § 26-51-404(a)(1) (1987). It was also agreed by both parties that the nonbusiness income items were not subject to Arkansas tax since they were allocated to other states in accordance with the Uniform Division of Income for Tax Purposes Act, (UDITPA) codified at Ark. Code Ann. § 26-51-701 through -723 (1987). (The UDITPA provides uniformity among the states in taxing the income of multi-state corporations and strives to avoid' potential taxation of the same income by providing for a fair means of assigning taxable income among the states. See Qualls v. Montgomery Ward & Co., Inc., 266 Ark. 207, 585 S.W.2d 18 (1979)).
SSW contends that section 26-51-427(2)(A) mandates a showing of two things before income can be added to gross income in calculating net operating loss: 1) the income must be “nontaxable” and 2) it must be income “not required to be reported as gross income.” SSW maintains that although it is undisputed that the income is nontaxable, the income was required to be reported as gross income under section 26-51-404 (defining gross income) and was subsequently allocated to other states; therefore, the items do not fall within the second provision of section 26-51-427(2)(A). We disagree.
The nonbusiness income items here, although clearly defined as “gross income” under our statute, were not required to be “reported as gross income” for purposes of taxation by this state, but merely for'purposes of allocation under the UDITPA. As we noted earlier, all of the income in question was allocated to other states. The income was never “reported” or taxed in Arkansas. Simply put, we cannot equate, as SSW would have us do, the reporting of gross income for taxation purposes, as required by Arkansas law, with the inclusion of income in the formula for allocation. The latter is only a method of apportioning a taxpayer’s taxable activity among the various states.
The result we reach is identical to our recent decision in Kansas City So. Ry. Co. v. Pledger, 301 Ark. 564, 785 S.W.2d 462 (1990). At issue in Pledger was certain dividend income specifically excluded from the term “gross income,” and thus nontaxable, under sections 26-51-404(b). We held that section 26-51-427 mandates inclusion of all nontaxable income in the calculation of net operating loss.
Likewise, under our reasoning above, the income at issue here was nontaxable and was not required to be reported as gross income for Arkansas tax purposes under UDITPA. The difference lies only in the statute which makes the income nontaxable and excludes it from gross income reporting.
By asserting the privilege of a net operating loss carryforward, SSW is claiming a deduction established by Arkansas law. The privilege is allowed only as a matter of legislative grace and one claiming the deduction bears the burden of proving that he is entitled to it and of bringing himself clearly within the terms of such conditions as may be imposed by statute. Skelton v. B.C. Land Co., 256 Ark. 961, 513 S.W.2d 919 (1974); Kansas City So. Ry. Co. v. Pledger, supra. Similarly, we have held in numerous exemption cases that any tax exemption must be strictly construed against the exemption and any doubt suggests the exemption should be denied. See Ragland v. General Tire and Rubber Co., 297 Ark. 394,763 S.W.2d 70 (1989). SSW has not demonstrated that it is entitled to the deduction within the terms imposed by statute. Thus, we hold that the Commissioner’s computation of SSW’s net operating loss was correct and that the nonbusiness income items must be added to gross income in calculating this loss.
Affirmed. | [
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Robert L. Brown, Justice.
Appellant Robert Shaw was tried on May 15, 1989, for attempted murder, rape, and kidnapping. He was acquitted of the attempted murder charge, and the trial judge declared a mistrial on the rape and kidnapping charges due to the inability of the jury to reach a verdict and the illness of one juror. Defense counsel did not object to the mistrial declaration at that time, but did file a motion to dismiss on double jeopardy grounds on October 24, 1989. The motion was denied.
On December 18,1989, appellant was tried a second time on the rape and kidnapping charge. He was convicted of both offenses and sentenced to ten years for each conviction with the terms to run consecutively. Appellant appeals his convictions on two grounds: 1) the trial judge terminated the first trial prematurely and without the appellant’s consent so that double jeopardy attached, and 2) the force used by Shaw in the rape was insufficient to warrant a separate conviction for kidnapping.
We affirm the conviction for rape and reverse the kidnapping conviction.
Double Jeopardy
At the first trial on May 15, 1989, the jury began its deliberation at 6:05 p.m. and advised the judge at 9:30 p.m. that it had reached a verdict on one charge, but was split six to six and nine to three on the other two charges. The judge, in a lengthy statement, advised the jury that it needed to resolve the two remaining charges; he did not, however, specifically give the Allen instruction, AMCI 6004. In his statement to the jury the judge did say: “And if the issue still remains six and six then we’ll just have to live with that.” The judge also asked about the health of one juror, Mr. Brown, who answered that he had a prostate condition but was feeling better since he had “heaved a few times.”
At 10:15 p.m. the jury was called back into the courtroom by the judge and asked about the status of its deliberations. The judge was told that the jury had “sort of come to a stop” and Mr. Brown was “having some problems.” The judge then declared a mistrial on the two remaining charges. He was told that the one acquittal was on the attempted murder charge. The judge asked, after declaring a mistrial, what the status of the two remaining charges was. The foreman said eight jurors had voted not guilty and four jurors had voted guilty on rape, and ten jurors had voted not guilty and two jurors had voted guilty on kidnapping.
The decision to declare a mistrial due to a jury’s inability to reach a verdict is discretionary with the trial judge, and that decision will stand absent abuse of discretion. See McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986). We are not prepared to say the trial judge abused his discretion in the instant case.
The law on double jeopardy is set out by statute:
A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
* * * *
(3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn. . . unless the termination was justified by overruling necessity.
Ark. Code Ann. § 5-1-112 (1987).
There is evidence in this case of “overruling necessity.” The jury had conferred for more than three hours without deciding the rape or kidnapping counts, and the foreman had said the jury “had sort of come to a stop.” The judge had also previously urged the jury to resolve the remaining counts though he did not specifically give the Allen instruction.
Equally as important as the deadlocked jury was the condition of one juror, Mr. Brown, who was physically ill. After the jury returned to the jury room at 9:41 p.m., the judge said: “I just heard that Mr. Brown was white as a sheet and it gave me concern.” When the jury came back in at 10:15 p.m., the foreman told the judge that the jury was still deadlocked on two charges and Mr. Brown was “having problems.” At that point the judge declared a mistrial.
Under Arkansas law it is well settled that either a deadlocked jury or the illness of a juror is a circumstance which qualifies as “overruling necessity.” See Potter v. State, 42 Ark. 29 (1883) (deadlocked jury); Atkins v. State, 16 Ark. 568 (1855) (illness of juror). The trial judge, who was in the best position to assess both circumstances, made his decision to declare a mistrial and the totality of the circumstances support that decision.
Kidnapping
Appellant also contests his kidnapping conviction on the basis that the state’s facts only show force associated with the rape offense and do not show independent restraint sufficient to justify an additional kidnapping conviction.
On this point appellant is persuasive, and the kidnapping conviction is reversed.
At trial, the state showed that appellant asked the victim for adateon March 10,1989. The two agreed to have dinner after the victim got off work at 4:30 on Friday afternoon, but instead of dinner the two went to a liquor store and purchased a fifth of whiskey and some soft drinks^ They had a drink of whiskey and, on the pretense that appellant was going “to purchase a part,” he drove the victim out into the country until they came to a camp site. There, they got out of the truck and turned on the radio for music. Somewhat later, appellant asked the victim if he could kiss her. She refused and he said that “he could just blow her head off and nobody’d ever find her.” When appellant said that, the victim began to walk down the road. Appellant got back in his truck, drove up beside her, and apologized. She got back into the truck and lit a cigarette. Appellant drove down the road at a high rate of speed to a dead end and told her to get out of the truck. At that point he pulled out a gun, and she fell to her knees. Appellant struck her in the face and made her stand up and take off her clothes. He then raped her on the tailgate of the truck.
Following the rape, the victim got back in the truck on her own volition, because she thought appellant was going to take her home. Appellant, however, ordered her out of the truck, according to the victim’s testimony, “so that he could get away before I went and squealed to the cops.” The victim then told appellant she knew he was going to kill her. She got out of the truck and ran into the woods with appellant firing at least one shot in her direction. Appellant may have followed her after this, but the victim by her own admission was hysterical.
To prove kidnapping the state must show that the offender has restrained another person so as to interfere substantially with her liberty with the purpose of engaging in sexual intercourse. Ark. Code Ann. § 5-11-102. Here, there was no substantial interference with liberty to warrant a separate conviction for kidnapping. By the victim’s own testimony her actions were consensual until appellant pulled a gun and forced her to take off her clothes.
These facts are distinguishable from those in a recent kidnapping case decided by this court. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986). There, the victim was pulled into a car and driven to a different county where she was raped. En route, the victim was forced to commit oral sex. The forceable abduction and the extent of the travel over a period of time fall more readily into the category of kidnapping than the facts in the instant case. The same holds true of the fact situation in a second recent case. See Vick v. State, 301 Ark. 296, 783 S.W.2d 365 (1990). In Vick, the victim was held overnight and raped several times, which again distinguishes it from the facts in the instant case due to the period of time that the victim was restrained.
Here, the force began with the gun threat after appellant drove the truck to the dead end. The rape immediately ensued, after which the victim got back in the truck voluntarily. She got out of the truck only at appellant’s insistence and what transpires from that point forward is more suggestive of attempted murder — a charge for which appellant was acquitted — than kidnapping.
The restraint used in this case did not exceed restraint or force incident to the crime of rape. See Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). The evidence is therefore insufficient to sustain a kidnapping conviction.
Affirmed in part; reversed and dismissed in part.
Hays, Glaze and Corbin, JJ., dissent in part. | [
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Jack Holt, Jr., Chief Justice.
This is a paternity case in which the appellee, State of Arkansas, County Support Enforcement Unit ex rel. Evelyn Williams (CSEU), sought to establish the appellant, Ronnie Roe, as the father of Mandie A. Williams, who’was born on April 11, 1978, to Evelyn Williams.
At a hearing in the County Court of Crawford County on October 20, 1988, Mr. Roe requested blood testing pursuant to Ark. Code Ann. § 9-10-108 (1987). The County Court granted the request and appointed National Paternity Laboratories, Inc. (NPL) of Dayton, Ohio, to perform the tests. NPL submitted a written report indicating a 97.94 % probability that Mr. Roe was the biological father of Mandie Williams. On January 27,1989, the County Court found Mr. Roe to be the father of Mandie Williams.
A timely appeal was made to the Circuit Court of Crawford County, which subsequently transferred the case to the Chancery Court of Crawford County. A de novo hearing was held on October 6, 1989, as a result of which the chancellor determined that Mr. Roe was the father of Mandie Williams and ordered that he pay child support in the amount of $45.00 per week.
Mr. Roe appeals and alleged two points of error: 1) that the chancellor abused his discretion in admitting into evidence a blood test which, by court order, was performed outside the subpoena power of the court, and 2) that the State’s evidence fails to establish that he is the father of the child. CSEU cross-appeals contending the chancellor erred in not setting support in accordance with the Family Support Chart.
DIRECT APPEAL
Initially, Mr. Roe argues that the chancellor’s admission into evidence of NPL’s report effectively denied him his right to confront and cross-examine the experts who performed the test because the out-of-state laboratory and its experts were outside the subpoena power of the court.
Arkansas Code Ann. § 9-10-108 (Supp. 1989) addresses blood tests in a paternity action and provides in pertinent part as follows:
(a) At the request of either party in a paternity action, the trial court shall direct that the defendant, complainant, and child submit in one (1) or more blood tests or other scientific examinations or tests ... to determine whether or not the defendant can be excluded as being the father of the child and to establish the probability of paternity if the test does not exclude the defendant.
(b) The tests shall be made by a duly qualified physician or physicians, or by another duly qualified person or persons, not to exceed three (3), to be appointed by the court.
(c) (1) The results of the tests shall be receivable in evidence.
(c) (2) (A) A written report of the test results by the duly qualified expert performing the test, or by a fully qualified expert under whose supervision and direction the test and analysis have been performed, certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in evidence in illegitimacy actions without calling the expert as a witness. If either party shall desire to question the expert certifying the results, the party shall have the expert subpoenaed within a reasonable time prior to trial.
(c)(2)(B) If the results of the paternity tests establish a ninety-five percent (95 %) or more probability of inclusion that the defendant is the natural father of the child and after corroborating testimony of the mother in regard to access during the probable period of conception, such shall constitute a prima facie case of establishment of paternity and the burden of proof shall shift to the defendant to rebut such proof.
* * * *
(c)(3) The experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings.
* * * *
(Emphasis added.)
Further, in Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), we held that:
. . . if a county judge is going to use a nonresident firm or individual to perform blood tests in bastardy proceedings, it is his responsibility to see that the person performing the blood test is available for trial, if the proof requires his presence, as though that person were an Arkansas resident; he must be subject to subpoena just as the statute provides.
However, Mr. Roe’s reliance on Thomas v. Pacheco, supra, and Chandler v. Baker, 16 Ark. App. 253, 700 S.W.2d 378 (1985), is misplaced. In Thomas, a non-resident expert subpoenaed by the appellant refused to honor the subpoena; the trial court ruled that under the circumstances a telephone deposition of another doctor was a reasonable alternative, and we found that the trial court abused its discretion in doing so. In Chandler, section 9-10-108 (c)(2) (A) applied only to the State Medical Examiner at the time that case was tried.
In this case, Mr. Roe requested the blood test, yet never attempted to subpoena the experts who conducted the tests at NPL. It was his sole responsibility, under section 9-10-108(c)(2)(A), to have had the experts subpoenaed within a reasonable time prior to trial. Consequently, his inability to confront or cross-examine the experts was brought about by his own inattention to our code requirement to subpoena witnesses under these circumstances. Roe’s claim is without legitimate basis.
Next, Mr. Roe claims that the State’s evidence fails to establish that he is the father of the child. Pursuant to section 9-10-108, a prima facie case of paternity exists after the establishment of test results of a 95 % or more probability of paternity and corroborating testimony of the mother regarding access during the probable period of conception.
In Aldridge v. Tyrrell, 301 Ark. 116, 782 S.W.2d 562 (1990), we noted that on appeal, we consider the evidence in the light most favorable to the appellee, and, although we try chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless it is clearly erroneous.
In this case, the test results indicated a 97.94% probability that Mr. Roe is the father of Mandie Williams. Additionally, Evelyn Williams, Mandie’s mother, testified that she had sexual intercourse with Mr. Roe in July 1977 and that she had sex with no other man besides Mr. Roe from June 1977 until she knew that she was pregnant. Although Mr. Roe highlights Ms. Williams’ opinion that conception occurred in August 1977, which would not correlate with a full-term nine month pregnancy resulting in Mandie’s birth on April 11,1978, we agree that Ms. Williams’ testimony establishes access, both in place and time, for conception. Mr. Roe’s blanket denial of having sexual relations with Ms. Williams and testimony that he was out-of-state during the period of conception is a matter of credibility of the witnesses, and we defer to the chancellor’s evaluation. Germer v. Missouri Portland Cement Co., 301 Ark. 277, 783 S.W.2d 359 (1990).
Accordingly, the chancellor’s determination that Mr. Roe is Mandie Williams’ father is not clearly erroneous.
CROSS-APPEAL
CSEU cross-appeals on the basis that the chancellor erred in not setting support in accordance with the Family Support Chart.
Arkansas Code Ann. § 9-10-109 (Repl. 1991) addresses child support following a finding of paternity and provides in pertinent part as follows:
(a) Subsequent to the finding by the chancery court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the law of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorneys’ fees, and directing payments through the clerk of the court.
* * * *
Arkansas Code Ann. § 9-12-312 (Repl. 1991) addresses child support and provides in pertinent part as follows:
(a)(2) In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.'
In this case, Mr. Roe testified that he had a net take-home pay of $468.00 per week, and he also had custody of two children from a prior marriage. The chancellor awarded Ms. Williams $45.00 per week in child support; however, in utilizing the Weekly Family Support Chart, see our per curiam In Re: Guidelines For Child Support Enforcement (February 5,1990), we are unable to determine the basis upon which the chancellor made his award, as the amount apparently is not in conformance with the presumptive figures contained in the chart.
In short, the record is insufficient for a de novo review. As there is no written or specific finding that the support amount reflected in the family support chart is unjust or inappropriate, or that there are factors, such as court-ordered support of his other children, that would require a deduction in the assessment of Roe’s weekly take-home pay, we remand to the trial court for a determination of child support in conformance with section 9-12-312 and our guidelines for child support enforcement.
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Steele Hays, Justice.
Floyd and Vanessia Sturgis appeal from a judgment awarded to The Lee Apparel Company, Inc. (Lee) for $44,038.48. Lee’s judgment was based on the amount of an insufficient check drawn on The Jean Joint of Mid-America, Inc., by Floyd Sturgis and on a balance due Lee for merchandise sold to that corporation.
On September 11, 1985, as an inducement to Lee to extend credit to The Jean Joint of Mid-America, Inc., Floyd and Vanessia Sturgis executed an agreement by which they personally guaranteed payment of all indebtedness incurred by The Jean Joint of Mid-America, Inc., owing to Lee. On May 4,1987, Floyd Sturgis wrote a check to Lee drawn on the account of The Jean Joint of Mid-America, Inc., in the amount of $20,336.41. The check was returned due to insufficient funds. Lee made demand for the payment on February 16, 1989.
When payment was not forthcoming Lee filed suit against the Sturgises for $39,703.57 ($20,336.41 due on the insufficient check and $19,367.16 for merchandise purchased on an open account). Pursuant to Act 66 of 1987 [Ark. Code Ann. §4-6-103 (1987)], Lee asked for twice the amount of the check.
The case was tried without a jury. After allowing a set-off of $18,001.50 for returned merchandise, the trial court awarded Lee a judgment which included double the amount of the insufficient check. The Sturgises have appealed, assigning error to several of the rulings of the trial court. We affirm the judgment.
The Sturgises submit that Act 66 is not applicable because the check was written in May whereas the act did not become effective until July. But this point was not preserved in the trial court and will not be considered here. The Sturgises submit that the doctrines of plain error and subject matter jurisdiction obviate the necessity of an objection before the trial court. But we do not recognize plain error [beyond the limited scope outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (Ark. App. 1980)], and we have not been shown how jurisdiction was lacking in this case. The Sturgises have offered no authority for their position and we are not aware of an instance where we have treated an improper application of a statute (alleged) as a jurisdictional issue.
Secondly, the Sturgises maintain that if the statute in question is applicable, they substantially complied by making restitution by returning merchandise purchased from Lee for which the check was given. However, the testimony supports a contrary conclusion. The returns were made before February 16, 1989, the date of Lee’s formal demand for payment, and Floyd Sturgis’s testimony supports an inference that the merchandise was returned because the stores were going out of business, not in restitution of the dishonored check. Even after the merchandise was returned, the Sturgises still had an outstanding account balance with Lee. The only way for the Sturgises to make restitution would have been to honor the check. Moreover, the restitution contemplated in Act 66 is in cash. The language is clear. After demand is made the payee has fifteen days “. . . to pay the holder of the check . . .the amount of the check. . . .” As we said in Townsend v. State, 292 Ark. 157, 160, 728 S.W.2d 516, 518 (1987), “This court has no authority to construe a statute that is plain and unambiguous to mean anything other than what it says.”
The Sturgises next argue the guaranty agreement did not extend to claims arising under Act 66. Therefore, they urge, the dishonored check should be an obligation of The Jean Joint of Mid-America, Inc., which was not made party to this action. However, we think the language of the guaranty itself answers that contention. By its terms, the Sturgises, as individuals, agreed “to make prompt payment ... of all sums owed ... on said account or accounts and of any and all other obligations of every kind and character arising or evidenced, and also of any and all renewals or extensions. . . .” (Emphasis added.)
“Although it is true that a guarantor is entitled to have his undertaking strictly construed and cannot be held liable beyond the strict terms of his contract, a guarantor is nevertheless bound by the clear wording of his agree ment.” Lindell Square Limited Partnership v. Savers Federal Savings and Loan Association, 27 Ark. App. 66, 71, 766 S.W.2d 41, 44 (1989).
Nor do we find merit in the final point. Mr. and Mrs. Sturgis owned the stock of two corporations, The Jean Joint, Inc. and The Jean Joint of Mid-America, Inc. Their personal guaranty covered only the obligations of The Jean Joint of Mid-America, Inc. They contend that while their personal guaranty secured payment of all indebtedness of The Jean Joint of Mid-America, Inc., the debts in question are debts of The Jean Joint, Inc. Granted, there was evidence that some invoices were addressed to The Jean Joint, Inc., rather than to The Jean Joint of Mid-America, Inc. But Floyd Sturgis conceded that billing invoices which once read The Jean Joint of Mid-America, Inc., were later shortened to The Jean Joint, Inc. The change in the wording of the invoices does not change the fact The Jean Joint of Mid-America, Inc. was receiving the merchandise. Floyd Sturgis also testified that all the returned merchandise came from The Jean Joint of Mid-America, Inc. Too, the check executed to pay the debts in question was drawn on The Jean Joint of Mid-America, Inc., and in a bankruptcy petition The Jean Joint of Mid-America, Inc., listed these liabilities as its own. The trial court heard this testimony and concluded that The Jean Joint of Mid-America, Inc. was the debtor. Findings of fact by trial court will not be set aside unless clearly erroneous. Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983). Floyd and Vanessia Sturgis have not shown the trial court’s findings were erroneous and therefore the judgment is affirmed. | [
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George Rose Smith, Justice.
The appellees applied to the Savings and Loan Association Board for a charter under which they would do business as the Arkansas Valley Savings & Loan Association, in Russellville. The application was opposed by two Russellville banks and by three savings and loan associations — one at Russell-ville, one at Clarksville, and one at Morrilton. After an extensive hearing, at which much testimony was heard, the Board granted the charter. The circuit court affirmed the Board’s decision. Here the appellants insist that the appellees failed to prove four of the statutory conditions to the issuance of a charter.
For convenience we will discuss together the appellants’ two principal contentions, which are interwoven. It is argued that the proof fails to show that there is a public need for the new association and that its operation will not unduly harm other financial institutions in the area. Ark. Stat. Ann. § 67-1824 (Repl. 1966). It is conceded that the substantial evidence rule governs our review in a case of this kind. Section 67-1811; Izard v. Arkansas Sav. & Loan Assn. Board, 239 Ark. 670, 393 S. W. 2d 245 (1965).
"We find an abundance of proof to show that the new association is needed. The firm will operate mainly in Pope and Yell counties. Tbe applicants’ testimony forecásts a vigorous economic growth for that part of the state. With the impending navigability of the Arkansas river cheap water transportation is in sight. The huge Dardanelle Reservoir supplies electric power, recreation, and homesites for retired citizens. The section is served by rail and by an interstate highway. Natural gas, electricity, water, and coal aré available in liberal quantities, as attractions to new industries.
There is a need for another financial institution. It is not the policy of the Russellville banks to make long-term loans, which are required in the financing of residential subdivisions. Until the present application was filed the existing savings and loan association at Rus-sellville had hardly been energetic in seeking to'expand its business. Its advertising budget was small. Its share of the local outstanding loans was materially smaller than the national average for such institutions. There is proof that at times its available lending capital was inadequate. This comparative inactivity may have been due in part to the fact that of its seven directors three were also bank directors and a fourth was a substantial stockholder in a local bank. Moreovér, both the savings and loan association at Morrilton and the one at Clarks-ville have a substantial volume of loans in Russellville despite certain inconveniences, such as the matter of appraisals, in the making of out-of-county loans.
Similar considerations indicate that the Arkansas Valley association will not unduly harm the other financial institutions. In fact, the witness Harold Neal, president of one of the protesting banks, gave his reasons for believing that savings and loan associations do- not really compete with banks. There is proof that fears similar to those now expressed by the appellants were voiced when a second bank at Dardanelle was proposed in 1958 or 1959, but it turned out that both the old bank and the new one prospered. On the whole, the record contains more than sufficient proof to sustain the Board’s findings upon the first two points.
The pi'otestants ’ third contention is that the evidence does not show that the character, responsibility, and general fitness of the persons who will serve as directors and officers are such as to warrant belief that the association will have qualified full-time management. Section 67-1824. There is really no serious question about the character, responsibility, and general fitness of the appellees. They testified that a qualified and experienced full-time manager would be employed. We do not read the statute as requiring that the manager be employed before the charter is issued. That step would not ordinarily be practical, for, as in the case at bar, a year or two may elapse between the application for the charter and the commencement of business by the association. Too, the Board' could assume that simple self-interest on the part of those investing in the new venture would make it reasonably certain that they would seek competent management.
Fourth, it is said that there is no showing that the Arkansas Valley association has filed satisfactory evidence that its savings accounts will be insured by an appropriate federal agency. Section 67-1831. The statute, however, does not require such proof before the charter is approved. It merely states that the association shall not carry on business until such evidence has been filed. Hence the appellants’ present objection is premature.
Affirmed. | [
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Conley Byrd, Justice.
This is a petition for prohibition. At issue is the question of whether the Pulaski Circuit Court dismissed cause No. 56930 therein pending, in which Vada Cowan was plaintiff and Basil Patrick and Florence Patrick, his wife, were defendants.
The docket sheet shows that Vada Cowan’s complaint for injuries arising out of an automobile collision in North Little Rock was filed on December 3, 1964. On December 18 the ease was assigned to the Second Division of Pulaski Circuit Court. Defendants’ motion for summary judgment and their answer and counterclaim were filed on December 28, 1964. On January 5, 1965, plaintiff filed her answer to defendants’ counterclaim. The next docket notation is on March 13, 1967, dismissing the canse for failure to prosecute. On April 28, 1967. the Pulaski Circuit Court entered its order setting aside the “dismissal of failure to prosecute.”
After the March 13, 1967 dismissal for failure to prosecute in the Pulaski Circuit Court, Basil Patrick et ux, on April 13, 1967, filed a complaint in the Faulkner Circuit Court for injuries arising out of the same accident. Service on this complaint was obtained on Vada Cowan in Pulaski County on April 17, 1967.
The order of dismissal of March 13, 1967, in the Pulaski Circuit Court is as follows:
“PULASKI COUNTY CIRCUIT COURT,
MARCH TERM, 1967
MONDAY, MARCH 13, 1967
“By order of the court upon its own motion after reviewing the civil docket and finding that there has been no activity in the following cases for a substantial length of time; notices having been sent in these cases and no notices having been sent in others, said cases are to be dismissed for failure to prosecute without prejudice to wit:
“VADA COWAN PLAINTIFF VS 56930 “BASIL PATRICK and “FLORENCE PATRICK DEFENDANTS”
The record does not show that the foregoing order was signed by the court.
The Pulaski Circuit Court order which was signed by the judge on April 28, 1967, provides:
“The Court finds that on March 9, 1967 it denied the motion of Florence Patrick for summary judgment, and on that same date mailed to Attorneys Guy H. Jones, Homer Tanner and Bert Barrow a letter enclosing a copy of the order denying said motion and notifying the attorneys that this court had set this case for trial on June 27, 1967.
“The Court further finds that thereafter on March 13, 1967, one of the deputy clerks of this Court inadvertently made a notation on the docket that this case had been dismissed for failure to prosecute, that this docket notation should not have been made, that it in no way constituted a dismissal of this case and that this case is now fully pending in this Court and has been continuously without interruption.
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that the entry referred to herein shall be stricken from the docket as having been inadvertently made, that this case is fully pending in this Court now, and has been continuously active and pending since its original inception, without any interruption.”
Under our holding in Oliver v. Miller, 239 Ark. 1043, 396 S. W. 2d 288 (1965), petitioners had a right to file their cause of action in the Faulkner Circuit Court IF cause No. 56930 in the Pulaski Circuit Court had been dismissed. Herein lies, under the record, a fact issue which we are unable to determine upon a writ of prohibition in this court. In Keenan v. Strait, Judge, 221 Ark. 83, 252 S. W. 2d 76 (1952), we held that prohibition did not lie where the jurisdiction of the trial court turned upon a fact issue — the remedy for correcting an erroneous ruling by the trial court being by way of appeal.
In the record before this court, there appears to be a disputed fact as to whether the cause of action No. 56930 was dismissed by the court or whether the clerk made an inadvertent or unauthorized entry of an order. Therefore the petition for writ of prohibition is denied.
Brown, J., not participating. | [
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John A. Fogleman, Justice.
This appeal questions the correctness of a decree dismissing the complaint of appellant, a captain in the Little Bock Fire Department, against the City of Little Bock and its Mayor and Board of Directors. Appellant had sought to enjoin appellees from granting promotions and increases in salaries under what is sometimes called a “merit system”. He further asked that they be directed to increase his salary to the top pay provided for captains in the Little. Bock Fire Department and for judgment for $630.00 for the difference in his salary and that top pay since the time he claims to have become entitled to it.
Captain Haynie was promoted to that rank on March 25, 1964, after having passed the required civil service examination. His salary after promotion was $425.00 per month. Some other captains were being paid $445.00 per month at that time. Subsequently his pay increased in two stages until, it reached $485.00 per month while the pay of other captains was raised to $510.00 per month.
Pay increases are given in the fire department under what the city refers to as a “pay classification schedule”. The schedule next preceding the filing of this case was adopted August , 1966. Each position in the fire department carried a “class number”, a “class title”, a “range number” and “monthly pay range”. Each job “class title” for all employees of the city carried six steps within the pay range — “A” to “F”. Under the class title, “Fire Captain”, the “pay range” was from $425.00 per month to $535.00 per month. The district fire chief “pay range” was from $485.00 per month to $610.00 per month.
On May 1, 1966 the pay of eight captains, some of whom had been promoted to the rank subsequent to ap pellant’s promotion, was advanced to the top “monthly pay grade” for captains. All of these men, including appellant, were at all times receiving a salary set forth in a current schedule of “monthly pay ranges”. No captain was paid more than the maximum or less than the minimum “monthly pay range” currently shown for the job class title. None of the salary advances mentioned, except for original promotion, was given following, or on the basis of, a competitive civil service examination. The increases in pay were given the other eight captains upon the recommendation of their superiors only.
The city contends that these pay scales were established and the increases given pursuant to its Ordinance No. 10,881 approved December 15, 1958, adopting a position classification and pay plan for the City of Little Rock. This ordinance required a grouping into classes of positions of approximately equal difficulty and responsibility, which required the same general qualifications and which could be equitably compensated “within the same range of pay under comparable working conditions”. It also required an identifying class title description of the work of the class. It was specified that titles used to indicate authority, status in the organization, or “administrative rank” might continue to be used for such purposes. The classification plan is to be used as a basis for giving examinations, fines (lines) of promotion, and determining salaries for various types of work. The city manager is made responsible for preparation and maintenance of the classification plan, with authority to amend and revise, with approval of the Civil Service Commission for civil service positions. A schedule of standard salary ranges, to be changed only by the Board of Directors of the City, prescribed fifty pay range numbers. Then an official salary plan was adopted and each job or “class title” was given a class number and a pay “range number”. Between that time and the institution of this action, the class title “Fire Captain” was advanced from “pay range” 21 to “pay range” 26 and “District fire Chiefs” from “range” 24 to “range” 29. Since § 2 of the ordinance is particularly pertinent here, we quote it in full:
“COMPOSITION OF THE CLASSIFICATION PLAN: The classification plan consists of:
A. A grouping into classes of positions which are approximately equal difficulty and responsibility, which require the same general qualifications, and which can be equitably compensated within the same range of pay under comparable working conditions.
B. A class title, descriptive of the work of the class, which identifies each class.
C. Written class specifications for each class of position, containing a description of the nature of the work and of the responsibility of the positions in the class, examples of work which are illustrative of duties of positions assigned to the class, requirements of work in terms of knowledges, abilities, and skills necessary for performance of the work, a statement of experience and training desirable for recruitment into the class, and, in certain cases, necessary special qualifications.”
It is the contention of appellant that this ordinance and plan, as applied to his “class title”, is in violation of the civil service laws of Arkansas. The increase of the salaries of the eight captains in the same pay grade within the designated pay range without civil service examination is the particular application to which he objects. It is his contention that Ark. Stat. Ann. § 19-1603 (Supp. 1965) prohibits this practice as a promotion. This is § 3 of Act 28 of 1923, our basic civil service law for first class cities. The section required each board of civil service commissioners to prescribe and enforce rules and regulations governing fire departments. One of the statutory requirements is that the rules shall provide:
“9th. For promotion based upon open competitive examinations of efficiency, character and conduct, lists shall be created for each rank of service and promotions made therefrom as provided herein, and advancement in rank or increase in salary beyond •the limits fixed for the grade by the rules of said commission shall constitute a promotion.”
The rules and regulations adopted by the board of civil service commissioners of Little Rock require open competitive examinations twice a year for creation of lists of those eligible for employment or promotion “for each rank” in the fire department. (Art. II, § 1) The use of the word “rank” in other sections of the regulations makes the conclusion that the board considered the job “class titles” as “ranks” inescapable. For example:
1. In speaking of eligibility to take examination for advancement-from a “lower to a higher rank”, an applicant must have “served at least one year in the next lower rank’’ and have “a good record in the lower ranks in which he has served”. (Art. II, § 5)
2. A probationary period is provided after each promotion during which the probationer may be “reduced to his former rank”. (Art. II, § 8)
3. For the purpose of determining eligibility to take examinations for promotion, it is specifically provided that all “holding the rank of captain shall be eligible to take the examination for promotion to assistant chief,” all “holding the rank of junior captain” to “the rank of captain”, and “all hosemen, laddermen and drivers”, to “the rank of lieutenant.” (Art. II, § 14)
4. In establishing a “Bureau of Efficiency” it is required that it be composed of members of the department with the ‘‘rank of captain or with a higher rank”. (Art. IV, § 3)
5. Discharge or reduction “in rank or compensation” is prohibited without a trial procedure. (Art. V) [Emphasis ours]
Appellant first contends that an increase in pay within a pay range is an advancement in rank under § 19-1603, requiring an examination. As a basis for this contention, he asserts that the word “in” should be construed to mean “within”. "We do not agree. We take it to be the intention of this section of the statute to define what constitutes a promotion. If appellant’s construction were used, “promotion” would not include an elevation from one rank to another and competitive examination would not be required by the Act. The expressions “in regard to”, “respecting”, “with respect to”, “as to”, are also synonyomus with the word “in”. See Rodale’s “The Synonym Finder”. The words “advancement in rank” then should denote an advance with respect to rank, or from a lower rank to a higher one. This is a common-sense construction and in keeping with the intention of the Civil Service Act.
Appellant’s next contention is that the eight other captains had received an “increase in salary beyond the limit fixed for the grade by the rules of the commission” in violation of Ark. Stat. Ann. § 19-1603. He argues that the quoted paragraph from § 19-1603 should be interpreted to mean that salary increases from one step to another within a pay range constitute a promotion and require competitive civil service examinations. This assumes that the words “the grade” in that section mean a “grade” or pay “step” within the pay range for the particular job “class title” which really designates the competitive class. On the other hand, the city and the lower court have construed the word ‘ ‘ grade ” to be synonymous with the word “rank” in the same section of the Act. We agree with the latter construction. We do not find the word used in any other place in Act 28 of 1933. We do find the words “rank” and “position” used in other parts of the Act. The word “grade” is synonymous with “rank”. Rodale’s “The Synonym Finder”. It appears that the drafter of the Act must have used the word “grade” to avoid repetitious use of the word “rank” in the same sentence for there is nothing else in the Act to which the former could relate or he related. Courts of other jurisdictions having similar language in civil service laws have held that an increase in salary does not constitute a promotion unless the resulting salary is beyond the limits fixed for the grade in which the office or position is classified. People v. Tully, 47 Misc. Rep. 275, 95 N.Y.S. 916; Stohl v. Horstman, 64 Cal. App. 2d 316, 148 P. 2d 697. It has also been said that an increase in salary is not a promotion where no top salary limit has been fixed. Mandle v. Brown, 5 N. Y. 2d 51, 152 N. E. 2d 511. We hold this rule to be sound and applicable here.
In this connection, appellant asserts a violation of the quoted paragraph of § 19-1603 in that the compensation rates and ranges for the Fire Department have been fixed by the Board of Directors of the City and not by the Board of Civil Service Commissioners. Section 19-1617 (§ 17 of Act 28 of 1933) states that the City Council or Board of Commissioners shall from time to time fix the number of employees and the :salaries to be drawn by each rank in the fire departments of their respective cities. Under Little Rock’s “city manager” form of government, all the powers and duties (except executive powers) of the Mayor and City Council under the “council” form were vested in the Board of Directors. Consequently, the Board of Civil Service Commissioners did not abdicate any authority when it stated that fixing the number of employees and the salaries to be drawn by each rank was the duty of the Board of Directors. (Art. II, § 16)
The propriety of a pay range within a rank is also in question. Under similar civil service laws, the courts of California have said that it is well settled, where a city council is empowered to fix salaries, reasonable variations therein for persons holding the same rank will be upheld. See, e. g., Banks v. Civil Service Comm., 10 Cal. 2d 435, 74 P. 2d 741; Stohl v. Horstmann, 64 Cal. App. 2d 316, 148 P. 2d 697. The courts of New York have recognized ranges of salaries for a rank with a “pay grade”. Beggs v. Kern, 284 N. Y. 504, 32 N. E. 2d 529.
If there is an inequity in the Little Rock “merit system” as provided for in the ordinance above referred to, appellant’s complaint shonld be addressed to the city officials or the general assembly. The wisdom of the policy adopted is not a judicial problem.
The judgment is affirmed.
Byrd, J., disqualified and not participating.
In some places in the record the number is given as nine. Since the actual number is immaterial, we will continue to refer to the number as eight. | [
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John A. Fogleman, Justice.
This is the second appeal in this case. In the first (241 Ark. 671, 409 S. W. 2d 825), appellant’s conviction of keeping a gambling device in violation of Ark. Stat. Ann. § 41-2008 (Repl. 1964) was affirmed. The case was there tried de novo on appeal from a conviction in the Municipal Court of Little Rock. The gambling device in question was a “pinball” machine on which appellant was found guilty of “paying off” for free games accumulated on the machine by players using it. Appellant there contended that these machines were not among the gambling de vices prohibited by the above mentioned statute. This question was resolved against appellant on the previous appeal.
The machine was ordered destroyed by the municipal court. The circuit court did not order its destruction in the judgment from which the first appeal was taken. After affirmance, the mandate of this court was issued on January 27, 1967. Thereafter the circuit court entered an order on March 1, 1967, ordering the Little Bock 'Chief of Police to forthwith cause the machine seized to be publicly burned. This appeal comes from that judgment upon the contention that the court erred in ordering the machine burned or destroyed.
The principal argument advanced by appellant is that after appellant’s conviction was appealed, the trial court lost jurisdiction over the case and, not having ordered the destruction in its judgment entered upon the jury verdict, could not do so after the transcript of the record on appeal was filed in this court.
It is true that a trial court does not have jurisdiction of its judgment or sentence during the pendency of an appeal for the purpose of modification or alteration. Fletcher v. State, 198 Ark. 380, 128 S. W. 2d 997. It is also true that the trial court has no jurisdiction to modify or vacate a judgment or sentence in a criminal case after affirmance by this court. Freeman v. State, 158 Ark. 262, 249 S. W. 582; Mitchell v. State, 232 Ark. 371, 337 S. W. 2d 663. The real purpose of the rule is to prevent the trial court from varying the judgment rendered or examining it for any purpose other than execution thereof. Fortenberry v. Frazier, 5 Ark. 200; Mitchell v. State, supra. The trial judge, however, has a continuing right to enforce appropriate orders after the filing of the mandate of this court and jurisdiction is reacquired following affirmance on appeal. Scaife v. State, 210 Ark. 544, 196 S. W. 2d 902.
It is also stated in appellant’s brief that the recitation by the trial court in its order of destruction that appellant was initially served with a warrant issued out of the municipal court directing that the machine be burned is not supported by anything in the record on either appeal. A search of the transcripts on the two appeals does not reveal any warrant. Even though the municipal court had not ordered the destruction of the machine, the absence of a warrant in the record is not necessarily fatal to the judgment from which this appeal is taken. For instance, if a seizure of the machine had been made without a warrant because it was publicly exhibited and operated, an order to destroy it would be proper. Garland Novelty Co. v. State, 71 Ark. 138, 71 S. W. 257. Provisions of the statute authorizing destruction of property used in violation of § 41-2003 have been referred to as a summary remedy in the exercise of the police power to suppress gambling, which has been declared to be a nuisance. Furth v. State, 72 Ark. 161, 78 S. W. 759; Garland Novelty Co. v. State supra. Section 41-2009 authorizes destruction of any device which is made unlawful to keep by § 41-2003. Steed v. State, 189 Ark. 389, 72 S. W. 2d 542. While some of the earlier cases indicate that only those devices which are both made and kept solely for the purpose of gambling are subject to destruction, later cases base the application of the statute on the use to which the device is put. See Burnside v. State, 219 Ark. 596, 243 S. W. 2d 736; Albright v. Karston, 206 Ark. 307, 176 S. W. 2d 421. In Albright v. Muncrief, 206 Ark. 319, 176 S. W. 2d 426, a teletype machine being used to transmit race horse information to various gambling houses, was held to be subject to destruction, even though the information was also used for other purposes. The court said that the evil effects to be suppressed were just as great in the use of instrumentalities designed for lawful use as when they were designed for the unlawful use to which they were put. This holding was partially based upon that section of the statute requiring that in construction of the “anti-gambling” statutes, the court shall adopt that construction “in favor of the prohibition and against the offender”. Ark. Stat. Ann. § 41-2017 (Repl. 1964) [Chapter 44, Div. 6, Art. 3, § 13, Revised Statutes]
Appellant does not question the status of this machine as a gambling device and that issue has been conclusively resolved against him on his former appeal. Such a device is not a lawful subject of property but has been declared contraband under the laws of this state. Bell & Swan v. State, 212 Ark. 337, 205 S. W. 2d 714. The owner of contraband. is not entitled to its return, even though the seizure was not lawful, so long as the article is held by an officer for the court or brought into court. O’Neal v. Parker, 83 Ark. 133, 103 S. W. 165; Ferguson v. Josey, 70 Ark. 94, 66 S. W. 345; Dodge v. United States, 272 U. S. 530, 47 S. Ct. 191, 71 L. Ed. 392. Even though the fact that the property procured might not be admissible in evidence because of an unlawful search, the court’s jurisdiction is based on the actual or constructive possession of the court. Strong v. United States, 46 F. 2d 257, cert. denied 284 U. S. 691, 52 S. Ct. 27, 76 L. Ed. 583. The fact that the seizure was without a search warrant and in violation of the Fourth Amendment to the Constitution of the United States would not entitle one claiming the contraband seized to its return. Trupiano v. United States, 334 U. S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663.
Ark. Stat. Ann. § 41-2009 authorizes the destruction of devices the keeping of which is prohibited by § 41-2003. This being so, a delay of destruction of such device until its character has been determined to be within the purview of the statute has been held proper. Garland Novelty Co. v. State, 71 Ark. 138, 71 S. W. 257. While it was not necessary for the trial court to have done so, it was not error to withhold the order of destruction until its determination that the keeping of the machine was prohibited by § 41-2003 had become final on appeal, for it might have been necessary to have the machine as evidence if the case should have been reversed. During all of the time the machine had been in the custody of the officers, and particularly between the affirmance of the case in this court and the order of destruction, appellant might have sought a remedy, if it were wrongfully held, in replevin or trespass. Furth v. State, 72 Ark. 161, 78 S. W. 759. Nothing in this record indicates that he did.
The judgment is affirmed.
See, e.g., Garland Novelty Co. v. State, 71 Ark. 138, 71 S. W. 257. | [
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Lyle Brown, Justice.
Appellant Leo Williams was convicted of possessing marijuana and on two counts of dispensing the drug. Williams filed a petition under our post-conviction procedure, Rule I. He alleged eight constitutional rights to have been violated in the process of arrest, arraignment, and trial. Additionally, he alleged denial of due process in that he was denied the right of appeal. The trial court found no merit in the allegations.
Only one point is argued on appeal: “The failure of the trial judge to appoint an attorney for appeal in effect denied Mr. Williams of his constitutional guarantee of due process.”
The right of an indigent defendant to appointment of appellate counsel was pronounced in the recent case of Swenson, Warden v. Bosler, 386 U. S. 258 (1967) :
“When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from the defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.”
At the post-conviction hearing, which is the basis of this appeal, Williams testified that he informed court-appointed trial counsel of his desire to appeal. He further asserted that trial counsel assured him the appeal would be taken. Trial counsel disputed those assertions and his testimony may be summarized as follows :
He had known Williams for a number of years and they were friends; he talked to Williams after the arrest but before he was appointed; when the verdict was returned “I told him at that time that if he wanted to take an appeal to let me hear from him.” On the day of sentencing “he asked me about appealing the case.” Williams did not indicate he wanted to appeal. The procedure for filing a motion for a new trial was explained to Williams and he was instructed to let the attorney know of his decision. In order to protect Williams’ right of appeal, counsel, on his own initiative, filed a motion for new trial. ('Sixteen days intervened bek veen the trial and the order denying a new trial.) Neither Williams nor his wife ever contacted the attorney.
Williams conceded that, although he was permitted to write seven letters each week, he did not write the attorney from the penitentiary. His explanation for that was that he was not permitted, according to trusties and inmates, to contact a lawyer. He instructed his wife to contact trial counsel. Williams’ wife did not testify and her absence is not explained.
The trial court believed the testimony of the attorney. The credibility of Williams’’ testimony is discounted when we examine his account of the original trial procedure. For example, he testified at the post-conviction hearing that the judge and prosecuting attorney selected the jurors who tried him. The painstaking procedure by which the jury was selected is in the transcript of that trial and is filed here with the post-conviction transcript. The same record refutation of most of Williams ’ eight points also appears in the trial transcript.
It is not contended that the trial judge had any reason to believe Williams desired an appeal. On sentencing day the trial judge inquired of Williams whether he had anything to say. Williams replied negatively.
The effect of the trial court’s adverse finding against Williams was to hold that Williams did not bring himself within the “rule of manifestation” in Swenson. We agree. Further, since Williams was advised of his right to appeal and instructed to contact the attorney, his failure to do so within sixteen days constituted a knowing and an intelligent waiver.
Although they are not argued here, the other eight points are listed in the abstract. The trial court properly made a specific finding in respect to each one. As to those findings, we hold there was no error.
Affirmed. | [
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J. Fred Jones, Justice.
Donald Wayne Ward was convicted in the Sebastian County Circuit Court on charges of burglary and grand larceny. He was sen tenced to three years in the penitentiary on the burglary charge and to two years on the larceny charge, and has appealed to this court relying upon the following point for reversal:
“The Appellant contends that the keys taken from his person after his arrest were prejudicial and inadmissible, because the Appellant was actually arrested when he was originally detained, and that the arrest was without probable cause, and that the Trial Court erred in not so finding and in not suppressing this evidence.”
About 4:00 a.m. on September 27, 1966, appellant was a passenger in an automobile driven by a Mrs. Anderson in the City of Fort Smith when the automobile was stopped by two police officers for driving too fast on Towson Avenue. Mrs. Anderson was charged with driving without a driver’s license and since the automobile bore an Oklahoma license, she was required to go to the police station and post bond. One of the officers drove Mrs. Anderson’s automobile to the station while the other .officer drove the patrol car, and Mrs. Anderson and appellant rode to the police station with a police captain who had been called to the scene. The Fort Smith Police Department had had a pickup order on the automobile and a warrant had been issued in connection with the purchase of the automobile in Arkansas with worthless checks by Mr. Anderson. The details of this transaction are not important here, but after arriving at the station, in order to prove ownership of the automobile, Mrs. Anderson permitted the police officers to search the automobile. The officers found a payment receipt and a title certificate in the automobile and in addition they found under the front seat of the automobile a motel pillowcase containing over Sixty Dollars in quarters and small change, and also found some men’s leather gloves and ladies canvas gloves, a pry bar, a screwdriver, some wire pliers and a jumper cable. Mrs. Anderson and appellant were advised that they were un der arrest for investigation for burglary and grand larceny. Appellant was then searched and the contents of his pockets, including some keys, were removed and he was placed in a jail cell.
The officers then retraced with Mrs. Anderson, the route she followed into Fort Smith, and near the place where Mrs. Anderson said she had taken a nap while appellant went for cigarettes, the officers found a pool hail that had been burglarized. The door of the building had been pried open, keys had been taken from an open cash register and money taken from pool tables and a music machine. The owner of the pool hall later identified two of the keys taken from the appellant, as being two keys taken from his cash register. The identification was made by comparing the keys, and the serial number on the keys, taken from appellant, with a duplicate set retained in the possession of the owner’s wife. These keys were offered in evidence at the trial and this appeal is based on their admission in evidence.
Prior to the trial of this case, appellant filed a motion to suppress evidence and alleged in his motion as follows:
“2. That the defendant has reason to believe that certain items of his personal belongings consisting of keys and other personal property, which are now in the possession of the State of Arkansas, will be introduced as evidence against him at said trial; that all items found as a result of search of defendant’s person at the time or immediately subsequent to his arrest should be excluded as evidence, for the reason that there was not probable cause nor warrant for defendant’s arrest, and hence said arrest was an illegal one; that said arrest and search violated defendant’s constitutional rights under the constitution of the United States of America and the State of Arkansas.”
A separate hearing was had on this motion, at which time the appellant, as well as the police officers, testified. The trial conrt overruled the motion to suppress and admitted the keys in evidence.
The evidence is clear in this case that appellant did not part with possession of the keys until after the officers had ample grounds to believe that a felony had been committed. Appellant denied that he parted with possession of any keys at all. He testified that he emptied his pockets at the officer’s request, but insists that the officers only took some finger nail clippers and handed back his keys. The officers testified that after the appellant was charged with burglary and grand larceny, they searched him and removed the keys from his pockets. There is no discrepancy in the testimony that this incident occurred after the automobile had been lawfully searched and the money in the pillowcase and the other items were found and removed from the automobile.
Appellant contends, however, that he was actually arrested when the automobile was first stopped by the officers and the driver, Mrs. Anderson, was given a citation for driving without a driver’s license, and he contends that he was still under this arrest when taken to the police station. It is appellant’s contention that his arrest was without probable cause or legal right and that if any keys were taken from his possession without a search warrant, they were obtained through an unlawful search and seizure and were inadmissible in evidence against him. Appellant argues that such search and seizure violates his constitutional rights guaranteed to him under Amendment 4 of the Constitution of the United States, and under Article 2, Section 15 of the Constitution of the State of Arkansas, which is as follows :
“The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”
The appellant very properly points out in his brief that “the law in the field of arrests, searches and seizures has been a dynamic one in federal courts and other states in this connection,” and appellant cites several federal court decisions in support of this statement. Appellant also cites our own case of Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, which involved evidence obtained in the search of a house trailer without a search warrant. Appellant urges that under the caveat announced in that case, we should adopt the federal rule that all evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in the trial of a criminal case in a state court. We have not deviated far from the caveat announced in the Clubb case in 1959, and we do not do so now. Since the 1961 decision of the United States Supreme Court in the case of Mapp v. Ohio, 367 U. S. 643, we have recognized the rule that where an accused is unlawfully arrested without cause, and searched without a warrant as a result of such unlawful arrest, the search would also be unlawful and keys or anything else seized as a result of such search, could not be used in evidence against him at his trial on a criminal charge unless waived by the accused. See Cabbiness v. State, 241 Ark. 898, 410 S. W. 2d 867. This is true not merely because of Amendment 14 and Section 15 of Article 2, supra, but because the use of such evidence so obtained, would force the accused to be a witness against himself as prohibited by Amendment 5 of the United States Constitution and in Section 8 of Article 2 of the Constitution of Arkansas.
We do, however, still measure the reasonableness of a search, and determine the lawfulness of any seizure made as a result of it, by the facts of the case before us. It might well be urged in this case that the 4th Amend ment to the United States Constitution, as well as Article 2, Section 13 of the State Constitution, protects the security of keys in the owner’s cash register where théy belonged, as well as in the appellant’s pocket where they were found, but that is not the question on this appeal.
We now come to the question of whether, or not the search of the appellant was unreasonable and the seizure of the keys was unlawful in this case.
We are of the opinion that the police officers had a right to stop the automobile in which appellant was a passenger. The officers testified that the automobile was speeding when they first observed it and this is not denied. As to whether or not the officers had reasonable grounds for arresting the appellant when the automobile was first stopped, and whether or not the appellant was actually placed under arrest at that time, the evidence is not clear. If the police officers had a warrant for the arrest of Mr. Anderson and had reasonable grounds for believing that the appellant was Mr. Anderson, no one could seriously question their authority in detaining appellant long enough to determine whether or not he was Mr. Anderson.
The record indicates that there was some question in appellant’s own mind as to whether he was arrested before the money was found in the automobile .he occupied.
“Q. Did they ever say any words such as ‘You’re under arrest’?
A. To Miss Anderson. They said that she was under arrest for driving without a license, and I just, more'or less, took it that I was under arrest for something.
# # #
At the time they brought us to the station, I knew that Mrs. Anderson — they was supposed to file a no driver’s license on her, and I, more or less, figured some charge would be filed against me.”
Neither the appellant nor Mrs. Anderson had a driver’s license and Captain Walker was called to where the automobile had been stopped in connection with driving the automobile- to the police station, and he testified at the hearing on the motion to suppress, as follows :
"Q. 8 * * Did you know whether they were under arrest when you- went to get them, Captain Walker?
A. The only thing — they didn’t have any kind of identification, they had a car. I had had a pickup on a car.”
At the hearing on the motion, Officer Balch testified:
"We proceeded up to the car, asked the lady driving if we could see her driver’s license. She stated she didn’t have any, that she had lost her purse between here and Hot Springs somewhere at a service station. At that time I asked her to step out of the car and asked the other party to step out of the car, asked him for identification and he said he didn’t have any identification either, that he had lost his billfold that day somewhere, he didn’t know where.
* # *
"I issued Patricia Anderson a summons for no driver’s license and we put them in Captain Walker’s car and brought them to the PD, and I drove the police car and Officer King drove the ’66 Ford with her permission.
# * #
“We had had a pickup on a car like this but it had a different license number than this car, and the detective were called in to investigate the car.
# * #
“Q. Did you have information as to anyone else or just the car ?
A. The car and a Marion Anderson had purchased this car in Paris, Arkansas, and had written a hot check, two hot checks to buy the car.
at # *
“Q. Did you talk to anyone on your iadio, and someone on the radio told you that that pickup had been cancelled?
A. No, sir, we hadn’t had a cancellation on it.
# # •
“Q. * * * Were you advised to bring both to the Police Station to post bond?
A. Yes, sir, we/on an out-of-state ticket they must post bond.
“Q. Now, why both? Why did you bring the defendant down to the station?
A. He was with her and he had no identification on him, and we didn’t know whether he was Marion Anderson or not.”
At the trial of the case, Officer Balch testified unequivocally that Mrs. Anderson was given a citation for driving without a driver’s license, and that he only asked appellant to step out of the automobile. He denied that the appellant was at any time under arrest prior to his arrest in the police station. He testified that appellant voluntarily went along with Mrs. Anderson to the police station. No effort was made to impeach Officer Balch’s testimony at the trial.
Certainly the officers had ample grounds for a reasonable belief that appellant had committed a felony when he was “booked” and the keys taken from his possession at the police station. Appellant does not contend that the evidence is not sufficient to sustain the conviction even if the keys had not been introduced.
We are of the opinion that the trial court did not err in denying appellant’s motion to suppress the evidence under the facts and circumstances of this case, and that the judgment of the trial court should be affirmed.
The trial court is to be commended in not only seeing that appellant received a fair trial and the service of a competent counsel, but in seeing that appellant also recognized that he had received a fair trial and the benefit of competent counsel.
Affirmed.
Brown, J., not participating.
Byrd, J., dissents. | [
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J. Fred Jones, Jnstice.
This is an appeal from the Jefferson C'onnty Circuit Court denying appellant’s motion to discharge the appellant and dismiss the information filed against him, and in overruling appellant’s subsequent motion to set aside a jury verdict and grant a new trial.
The record reveals the following facts: On April 4, 1966, informations were filed by the prosecuting attorney in Jefferson County, charging the appellant Givens, and also one Martin, with armed robbery, and a bench warrant was issued for the appellant. The warrant was served and appellant taken into custody on July 13, 1966. Appellant remained in custody, unable to make bail, until his jury trial on January 23, 1967.
On January 23, 1967, prior to trial, the appellant filed a motion for his discharge and for dismissal of the information filed against him, because he had been in jail since his apprehension and had not been permitted to enjoy the right of a speedy trial as provided in the state and federal constitutions. The motion was overruled by the trial court, the jury returned a verdict of guilty and fixed punishment at seven years in the penitentiary. Appellant waived the forty-eight hour delay in sentencing and was sentenced to seven years in the state penitentiary by order of the court entered on January 23, 1967. Appellant’s subsequent motion for a new trial was overruled and this appeal is from the orders denying the motions.
Appellant sets out two points he relies on for reversal, as follows:
“1. Defendant’s incarceration in Pulaski County jail under hold order and subsequent incarceration in Jefferson County jail, with trial passed twice over defendant’s strong objections was in violation of defendant’s civil, state, and federal rights to a speedy and public trial as guaranteed by the Arkansas and United States of America Constitutions.
‘ ‘ 2. Once such right accrued to defendant the court erred in overruling defendant’s motion to discharge the accused and dismiss the information filed herein.”
All the evidence, in the record before us, is directed to the delay in trying the case after appellant was arrested. On July 14, 1966, appellant’s attorney wrote a letter to the prosecuting attorney requesting that the case be placed on docket for an early trial. On August 9, 1966, appellant’s attorney again wrote to the prosecuting attorney calling attention to an agreement to try the case as soon as possible and requesting the prosecuting attorney to contact the trial judge in an effort to get the case set for trial. On October 21, 1966, appellant’s attorney advised the appellant that his case had been set for trial on December 1, 1966.
The record indicates that the appellant and his co-defendant may have been tried together. In any event, no motion for severance is in the record and the record reveals that an attorney was appointed by the court to represent appellant’s co-defendant, and that the court, on its own motion, passed the cases for trial on December 1, 1966, because the co-defendant’s counsel had not had time to prepare for trial following appointment. On December 7, 1966, appellant’s counsel wrote a letter to to the Circuit Judge requesting a jury trial at the earliest possible date and the case was tried on January 23, 1967.
A second postponement in the trial of the case was mentioned at the hearing on motion in chambers and is referred to in appellant’s brief, but the record is not clear as to any other specific dates the appellant’s case was set for trial except on December 1, 1966, when it was passed, and on January 23, 1967, when it was tried.
Appellant concludes his brief as follows:
“The question here is whether an incarceration from April 4, 1966, to January 23, 1967, with accused constantly demanding trial, and with trial passed over twice over defendant’s objections, despite only two trials in eight months, is a violation of appellant’s constitution guarantees of speedy trial. ’ ’
The record before us does not sustain the contention that appellant was incarcerated from April 4,1966, to January 23, 1967, on the charges for which he was tried. The sheriff’s return on the bench warrant is as follows:
“I hereby certify that I have executed the within Bench Warrant by taking the body of the within named James Givens C. M. who is now in custody subject to the orders of the Court, this 13th day of July, 1966.”
The appellant argues in his brief f at he had been held in jail for eight months awaiting trial, but he testified on the day of his trial that he had been in custody about six months.
A trial court has a great deal of discretion in the postponement of trials under Ark. Stat. Ann. § 43-1705 (Repl. 1964). This is necessarily so in the orderly conduct of the business of the courts in the various counties of a district, and the work of a trial judge in a four court district cannot be accurately measured by the number of jury trials alone, conducted in any one of the courts of the district. We find no abuse of discretion by the trial court in the case before us, and we are of the opinion that appellant’s right to a speedy trial was not violated in this case.
Information was filed, warrant issued, and the appellant taken into custody during the March 1966, term of Jefferson County Circuit Court, and appellant was tried in the following October 1966 term. (Ark. Stat. Ann. § 22-310 [Repl. 1962]).
Ark. Stat. Ann. § 43-1708 (Repl. 1964) provides as follows:
“If any person indicted for any offense, and committed to prison, shall not he brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”
and Ark. Stat. Ann. § 43-1709 (Repl. 1964) limits the time a person may stand indicted without trial while free on bail.
We do not agree with appellant’s argument that Ark. Stat. Ann. § 43-1705 “is unconscionable and not attune with recent decisions of the United States Supreme Court.” Section 43-1705 provides for postponement of trial “upon sufficient cause shown by either party” and the cases indicate that defendants have invoked the provisions of this statute far more often than the prosecution.
The United States Supreme Court case of Klopfer v. State of North Carolina, 35 Law Week 4248, cited by appellant, is not in point with the case here.
In the Klopfer case the defendant was indicted for criminal trespass on February 24, 1964. He was tried in March of 1964, but the jury failed to reach a verdict and the case was continued for the term. Prior to the April 1965, session of the court, the prosecuting attorney informed the defendant that he intended to have a “nolle prosequi with leave” entered in the case, hut instead, the prosecuting attorney moved to continue the case for another term and the motion was granted. The case was not set for trial in the August 1965 session and the defendant filed a motion to have the charge pending against him permanently concluded in accordance with the applicable laws of the state of North Carolina and the United States as soon as is reasonably possible, noting that some 18 months had elapsed since the indictment. In response to the motion, the trial judge considered the status of the defendant’s case in open court in August 1965, and at that time the prosecuting attorney moved the court that the state he permitted to take a “nolle prosequi with leave,” and the court granted the motion over the defendant’s objections.
Nolle prosequi with leave under the North Carolina practice procedure was simply a method whereby an accused was permitted to remain free under indictment indefinitely or until such time, as the prosecuting attorney in his discretion, saw fit to reinstate the case and try the accused on the charge for which he stood indicted.
North Carolina did not have a statute for the protection of the accused like our Ark. Stat. Ann. § 43-1708, supra. We are of the opinion that this statute is sufficient security in Arkansas for the speedy trial contemplated by the constitutions of Arkansas and the United States, and we find nothing in the record before us that would justify the shortening of that period by our decision in this case.
The judgment and orders of the trial court are affirmed. | [
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Cockrill, C. )• > J
This suit is similar to that of Hershy v. Rogers, ante, in all respects except as to the title of the plaintiff, who is the appellee here. His complaint alleges that he is the owner of the land. The allegations of title are denied in the answer, and the burden was upon the appellee to establish his title. The only proof in the record to sustain it is a deed purporting to be executed by the heirs and executors of John Rogers. The deed recites that it was executed by the executors under a power conferred by the will of John Rogers. But no will or other authority for the sale was shown. As this was a necessary link in the appellee’s title, it was incumbent upon him to show it. Janes v. Williams, 31 Ark., 175; Ludlow v. Flournoy, 34 Ib., 451.
It is admitted by the answer that Wood B. Rogers was one of the heirs of John Rogers, and it was his original interest in the land that the appellant sought to subject to the satisfaction of his judgment. The deed referred to was executed, not by Wood B. Rogers in person, but by a third person, who claimed authority to act for him by virtue of a power of attorney. The power of attorney was not exhibited or any proof made in reference to it. There is, therefore, no evidence that the power exercised by the attorney was conferred by Rogers, and the deed is not operative to pass his title. Carnall v. DuVal, 22 Ark., 136; DuVal v. Johnson, 39 Ib., 182; Wilson v. Spring, 38 Id., 181.
The appellee wholly failed to establish an interest in the land. He is not even shown to be in possession, and is not in a position to invoke the aid of a court of equity in his behalf. Hershy v. Rogers, ante.
Counsel have entered into an agreed statement of facts here and caused it to be filed with the clerk for our consideration, from which it appears that oral testimony was heard by the chancellor, tending to establish title in the appellee by virtue of adverse possession; but this could be brought to our notice only by bill of exceptions or by agreement of record in the trial court, and must be disregarded. Hershy v. Rogers, ante.
If there was anything in the record to indicate that oral proof was heard at the trial, we would presume that the decree is correct and affirm. Oral testimony may be heard at the discretion of the court, in chancery proceedings, but the common practice is to reduce all testimony to writing and there is nothing in the record to indicate a different practice on the trial of this case.
The decree must be reversed and the bill dismissed, but in view of the suggestion of counsel referred to, this will be done without prejudice to the rights of parties. | [
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Smith, J.
A vacancy existing in the office of circuit judge, the attorneys in attendance on the Craighead circuit court, at the spring term, 1884, proceeded on the second day of the term, being the 18th of March, to elect a special judge. The choice fell upon the Honorable J. E. Riddick, who held the term until the 28th of March, when the Honorable W. H. Cate, to whom a commission as the regular circuit judge had been previously issued, appeared in open court, was duly qualified and assumed the bench. On the 29th of March, the special judge, without any new election held, tried this cause, probably for the reason that Judge Cate was disqualified. The question is, whether the judicial functions of the special judge did not cease and determine upon the appearance of the incumbent of the office.
Art. 7, Sec. 21, Constitution of 1874, provides: “ Whenever the office of the judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge shall fail to attend, the regular practising attorneys in attendance on.said court, may meet at 10 o’clock, a. m., on the second day of the term, and elect a judge to preside at such court, or until the regular judge shall appear; and if the judge of said court shall become sick, or die, or unable to continue to hold such court, after its term shall have commenced, or shall from any cause be disqualified from presiding at the trial of any cause then pending therein, then the regular practising attorneys in attendance on said court may, in like manner, on notice from the judge or clerk of said court, elect a judge to preside at such court, or to try said causes, and the attorney so elected shall have the same power and authority in said court as the regular judge would have had if present and presiding; but this authority shall cease at the close of the term at which the election shall be made.”
Here two distinct classes of cases are contemplated, in which a special judge may be elected:
1. Where there is no judge of that circuit in commission, or where the commissioned judge is absent, the special judge elected presides during that term, or until the regular judge appears.
2. The second class of cases is where the regular incumbent is disqualified to sit, or after the commencement of the term falls ill, or dies, or is unable from any cause to hold the court. Here the authority of the special judge continues for the remainder of the term of his election.
The. present case falls under the first class, and the judicial power of the special judge terminated when Judge Cate took the bench. If the latter was disqualified to try any causes that remained undisposed of upon the docket, another election was necessary. No objection was made below to the competency of the special judge. But consent, either expressly or tacitly given, cannot impart judicial power. Dansby v. Beard, 39 Ark., 254; Gaither v. Wasson, 42 Id., 126.
The proceedings subsequent to the 28th of March, were coram non judice, and the judgment was void. The appeal is dismissed, and the case will stand for trial in the court below as it did before the supposed trial took place. | [
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Cockrill, C. J.
The appellant presented his petition to the Pulaski circuit court, for the writ of mandamus to compel the auditor of state to issue him a warrant on the treasurer in payment of services, rendered by him as attorney, in enforcing the payment of overdue taxes, under the act of March 12, 1881, in a suit authorized by the county court of Lonoke county for that purpose. The following facts, material to be known in this connection, appear from the petition and the exhibits embodied in it:
The Lonoke circuit court, by an appropriate order at its January term, 1882, fixed the basis for estimating the fees to be allowed the clerk and commissioner, the printer, and the attorney who was conducting the cause, who is now the appellant. This order fixed the attorney’s fees at the sum of $3.50 for each tract of land to be embraced in the decree of the assessed value of $xoo or less; $5 for each tract valued at more than $100 and less than $500, and $10 for each tract valued at more than $500; and the aggregate of the oth.er fees, mentioned in the order, would, perhaps, equal, if not exceed, the allowance for attorney’s fee. The same day a final decree was rendered by the court, condemning the lands to be sold for the taxes, penalties and costs of suit. The basis, fixed by the court for estimating the costs, was followed by the clerk'or attorney in drafting the decree, and the gross amount of court fees, estimated to be due upon each tract, was taxed against it as one item and designated as costs. The amounts fixed by the court for the attorney’s fees were included in these several items. The lands were sold by the commissioner, and, after the time for filing exceptions to the report of sale had expired, 'the report was confirmed by the circuit judge at chambers in vacation, the court, in the meantime, having adjourned. At the same time an order was made directing the commissioners to pay the taxes, raised by the sale, to the several officials entitled to receive the same, and to disburse the fund raised for the payment of costs pro rata among the officers of court, in accordance with the previous order; and the clerk was ordered to certify the costs due upon the lands purchased by the State to the auditor for allowance in accordance with the statute. The following day the clerk delivered the appellant two certificates of the balance due him as attorney, aggregating the sum of $4,420.25. A few days after this the judge caused an order to be entered upon the records, reciting that the aggregate of the fees allowed was in excess of what had been intended by him, and restraining further action in the matter of fees until the further order of court. Subsequently an order was made by the judge, at chambers, reducing the attorney’s fees to one dollar for each tract described in the complaint; and at the next term, as the petition alleges, all of the orders above mentioned were again made and entered in open court. The amount finally awarded the attorney is declared in the order of allowance to be “ an equitable and just” fee for the services rendered. The attorney presented to the auditor the certificate of the first allowance made him, and the auditor refused to audit the account.
A demurrer was interposed by the auditor, and upon consideration thereof the petition was dismissed, and England, the attorney, appealed.
The right to an auditor’s certificate of indebtedness (not a warrant), for services rendered under the overdue tax act, and the practice in the proceeding to enforce the right, are pointed out in the previous decisions of this court. See Files as Auditor v. Gatewood, 42 Ark., 233; Files, etc., v. Fuller, 44 Ib., 273; Basham v. Carroll, Ib., 284.
The only question presented by the appeal in this case, not determined in those cited, is as to the power of the trial court to cut down the allowance made for attorney’s fees, after the lapse of the term at which the order fixing the allowance and the final decree in the case were made. The question arises not between litigants, but between a court of equity and one of its officers, in regard to services rendered by the latter in the progress of a cause conducted before the court.
The appellant is content with citing us to the numerous decisions of this court to the effect that after the expiration of the term the circuit court loses its power to alter or amend its judgments and decrees at will. These cases -arose between parties to suits in regard to matters that had been finally and formally adjudged for or against one of them. An officer of the court, and the attorney was no more, whose fees are de- , pendent on the result of a litigation, may be interested in the suit; and may have a vested right in the fees to which he is, by law, entitled, as was held in Fuller's case, sup.; but the suit is not prosecuted for the purpose of determining the amount of his fees, and he is in no sense a party to the record. Baldwin v. Watch, 54. Me., 167.
Moreover, nothing was adjudged to the attorney in this case. The order, fixing the basis for estimating the fees of the officers of the court, was interlocutory merely. It did not undertake to award the fees to any of the officers, and was intended by the'court only as a guide to the clerk to fix a basis for raising a fund for the ultimate payment of costs. The attorney is not mentioned in the decree, and no amount is there set aside as an attorney’s fee. It is nowhere decreed that he shall have or recover any part of it.
The costs in this class of cases should not be confounded with the expenses of litigation that are sometimes authorized to be assessed in favor of the winning party against his less fortunate adversary—as where an attorney’s fee, under a former practice, was assessed against the losing party upon the dissolution of an injunction. This was an item of damages, and entered into the party’s judgment of recovery as 'such. In cases under the act in question the plaintiff has nothing to do with his attorney’s fees, as was held in Fuller’s case, sup. It is the duty of the court to fix the fee, and in arriving at the amount the judge, sitting in chancery, uses his discretion just as he does in fixing the compensation of a master, a commissioner, or a receiver, and the fee when ultimately awarded goes, not to a party to the suit for his own or the officer’s benefit, but to the officer direct. If it had been the intention of the court, at the time of entering the final decree, to fix ultimately and finally the appellant’s and other officers’ right to any specific sum, the entry should have been framed with that in view; but it was not done, for the obvious reason that it could not be foreseen with certainty that the attorney or the other officers would perform the duties yet incumbent upon them in winding up the decree, or that, through accident or neglect, it might not become necessary to employ others in their stead.
A wide range of discretion is vested in the courts exercising equity jurisdiction in matters of costs. In the complicated matters that they deal with, this has been thought necessary in order to prevent the oppression of suitors ; and where allowances not embraced in the fee bills are to be made for the benefit of any of their officers, it is the duty, as it is, without doubt, one of the incidental powers of the courts, not only to hold the officer to a rigid discharge of his obligations, but to withhold him from oppression of any suitor. The court has the same right to exercise' this authority over an attorney, when he appears in his capacity of officer, as it has over the clerk, master or other inferior officer of the court, and for this purpose its orders of allowance and other orders in reference thereto no more pass beyond its control with the lapse of a term, than the rules of practice which the court makes for its own guidance and regulation.
The circuit court in this case was in the proper exercise of this power when the first order of allowance was revoked and a reasonable compensation for its officers fixed. It had never been intended to bestow upon them the munificent sums the first order aggregated, and the earliest opportunity was seized after the inadvertence was discovered to rectify it. The amounts had not been paid or the claims audited, and the matter had not passed beyond the court’s control. The previous enjoin ing order of the court served as a sufficient notice to the attorney of the court’s intention to modify the first order.
In the case of State, ex rel. Clinton County, v. Hannibal & St. Louis R'y Co., 78 Mo., 575, the court, in aid of an attorney in an overdue tax case where he had neglected to have his fee taxed as costs, assessed his fee after the term and after the judgment had been paid. See, too, Harris v. Fortune, 1 Binn., Pa., 125.
Affirm. | [
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Smith, Justice.
The appellant, a licensed keeper of a dram-shop, was indicted, under Section 1594 of Gantt’s Digest, for permitting gaming to be carried on in his place of business. He interposed a general demurrer, which was overruled; and afterwards standing mute, the court ordered a plea of not guilty to be entered for him. Upon the trial of the issue thus raised, he was convicted and adjudged to pay a fine.
As the judgment cannot be said to be unsupported by the evidence, we shall consider only the question whether the indictment sufficiently charges the offense. The indictment begins thus: “The grand jury accuse W. F. Farmer of the crime of permitting gaming in his dram-shop.” And the charging part is that the defendant, having a license under the laws of the ¿otate, to keep a dram-shop in Perry county, “ did within the house of him the said W. F. Farmer, knowingly and unlawfully permit and suffer ” certain parties to bet money on a game of cards there played.
The indictment is substantially a copy of that in Brockway v. State, 36 Ark., 629. The objection is that it does not certainly appear in what house of the defendant’s it was intended to charge that the gaming took place—that it might have been in his dwelling-house, or any other out-house owned or occupied by him, as well as in his drinking saloon, though detached or distant therefrom.
The offence is a statutory misdemeanor. And as the indictment follows the language of the statute, and apprises the defendant, with reasonable certainty, of the nature of the accusation against him, so as to enable him to prepare his defence, and to plead the judgment in bar of a subsequent prosecution for the same offence, it is sufficient. State v. Witt, 39 Ark., 216.
Under the indictment it would devolve upon the State to prove that the gaming took place in the saloon, or upon the premises connected therewith. And the testimony in the case satisfies this requirement.
Affirmed. | [
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Smith, J.
Frank Jones was in the employment of a contractor for building bridges on a branch road, which the defendant company was constructing, in the year 1882, from Knobel down Crowley’s Ridge in the direction of Forrest City. His office was at Knobel and his principal duties were to receive consignments of timber and materials, that came to Knobel for his employer, and re-ship them down the branch roads to points where they might be needed. On an afternoon in June, of that year, a freight train, with one flat-car laden with lumber for Jones’ employer, stopped at the depot of Knobel. This car of lumber was at the head of the train, next to and immediately in rear of the engine and tender. The conductor alighted from the train and went ■ into the depot building to deliver his bills of lading and transact other necessary business with the station agent. Before this flat-car had been detached from the train and placed upon the side-track, Jones mounted upon it at its rear end. None of the train hands observed him, except a brakeman, who ordered him to get off, as it was against the rules of the company for freight trains to carry persons unconnected with the train. But Jones refused to get down, and the brakeman went to another part of the train to attend to a hot box. The train-men then proceeded to switch off this flat-car on to the side track. This was done by uncoupling the car and taking it with the locomotive past the switch target, and, when the switch was opened, backing it on the side track. Then, when the locomotive was well under way in its backward movement, the pin which held this flat-car to the tender was pulled out, the engine was reversed and returned to the main track, and the car, by the impetus acquired by the parting kick, was sent off in the desired direction. In this case the engine was backing with considerable speed, and great, and perhaps unnecessary, force was used in sending off the detached car; for it rolled on until it collided with another car standing on the side track; and the draw-heads of both cars were stove in. As the engine was passing the switch another brakeman warned Jones to look out, as the car upon which he was riding was about to be set out on the siding. He replied that he knew what he was about and that he was too old a hand at the business to be in any danger. But about the time the collision took place, he endeavored to climb up on top of the pile of lumber and was thrown under the wheels of the car, which passed over him, inflicting injuries from which he died.
His administrator brought this action against the railroad company, alleging that his death was caused by the negligent operation of its trains, and recovered a verdict for $2000.
The'proof was that the presence of Jones on the car was in fact unknown to all of the train hands except the two brakemen. Some bystanders, who witnessed the accident, testified that the engineer might have seen Jones if he had looked back; but they were ignorant whether he did look back. The engineer and fireman both swore that they had no reason to suspect that any person was on that car; and that it was impossible, on account of the intervening tender and lumber, to see Jones at the end of the car from their places without leaning over at the side of the cab. It is quite possible that the spectators were deceived into the belief that Jones was visible to the er. gineer from the fact that both parties were in plain view of themselves.
Upon this evidence the jury were charged, in substance, that although Jones may have been unlawfully upon the car, yet if the engineer in charge had knowledge of his presence, and was guilty of negligence in the transfer of the car from one track to the other, in consequence of which Jones lost his life, the defendant would be liable. And the court refused the following request, and similar ones embodying the same idea:
“The jury are instructed, that a person who has no lawful right to be, upon a vehicle, whether a railroad car or other vehicle, and is there without the consent of the carrier or his duly authorized agent, is a trespasser, and cannot recover damages for any injuries happening to him, unless the said injury was caused by wilful and intentional negligence on the part of the carrier, occurring after the latter has had notice of such person’s presence on the vehicle.
“ If, therefore, the jury find, from the evidence, that the deceased was on the defendant’s flat-car, at the time loaded with lumber, without the consent of the conductor of said train, the court tells you that he was there as a trespasser, and you will find for the defendant in this action; unless you further find, from the evidence, that the injury was caused by wilful and intentional negligence or carelessness of the defendant’s engineer after he knew deceased was on the said car.”
The first and most material inquiry is, what right had Jones to be on the car, and what corresponding obligation rested upon the company to provide for his safety. For, when it is said that it is the duty of a railway- company to operate its trains with care, this is in reference to those who are in a position to complain of its neglect. It cannot be expected to run its freight trains with a constant view to the probability that unauthorized persons may be secreted or lurking about the trains. Thus, the tramp, who steals a ride, cannot recover damages for a personal injury suffered by him in consequence of defective machinery, or an insecure road-bed, of the negligence of the company’s servants; because in these matters the company owes him no duty.
Now, Jones was not a passenger; he was not an- employe of the company; he had no sort of connection with the train; no invitation or inducement was extended to him to get on the car. Whatever may have been his motive, we may' be sure that it was for his own pleasure or convenience that he acted. He had no right to meddle with the lumber until it was delivered to him by the station agent, and that could only be after the car upon which it was loaded was at rest upon the side track and separated from the train. He had no authority to direct at what point this car should be left, for the train-men take their directions from the conductor, who in such matters receives his directions from the station agent. Consequently he was a mere intruder and trespasser, who had, of his own choice and without the slightest necessity, placed himself in a situation where he was liable to be injured. He was a man thirty-five years old, and presumably of sufficient discretion to understand that he incurred some peril. Moreover, he was twice warned that he had no business there and that it was dangerous. He voluntarily took whatever risks were incident to his situation while the car was in course of being shifted from the main track to the side track. Ynd the servants of the company were not bound to conduct that operation with any special reference to his safety. They had the right to presume that no one was on the car; for no one had any business to be there. And the only duty that the defendant corporation owed him was the negative duty not to injure him wantonly, or wilfully, or by such gross and reckless negligence in the management of the car, after the discovery that he was upon it, as would be equivalent to intentional mischief. Cooley on Torts, 660; 1 Thomps. on Negligence, 448-9, and cases cited; Severy v. Nickerson, 120 Mass., 306; S. C. 21 Am. Rep., 514; Johnson v. B. & M. Railroad; 125 Mass., 75; Morrissey v. R. R., 126 Mass., 380; Railroad Company v. Norton, 24 Pa. St., 465; Beam v. R. R. Co., 49 Ind., 93.
If the jury found, as they must have found under the directions, that the engineer was aware of the presence of Jones, their verdict was without evidence to rest upon. But even if he knew this fact, and was negligent in handling his engine.and this car, it would not follow that the company was liable in this action. For, it could not be foreseen, as a probable consequence, that Jones would be thrown under the wheels by the force of the collision.
The uncontroverted facts of the case show contributory negligence in the plaintiff’s intestate. And there is certainly nothing in the circumstances from which a jury could infer that the hurt was intended, or contemplated as a probable result, by any person connected with the train.
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Smith, J.
In November, 1877, Ferguson & Hampson, merchants and partners, trading at Memphis, in Tennessee, accepted from Mrs. Pickett and her husband a lease of the plantation, Nodena, lying in Mississippi county, Arkansas, for the term of five years, to begin on the first of January then next ensuing. They stipulated to pay, on the first of -December in each year, a certain rent for each acre of tillable land, the area to be determined by an actual survey, and to repair the fences and buildings. They were to enjoy free of rent any land which they should themselves clear and put into cultivation; but Mrs. Pickett was not to be charged with the value of any improvements. According to the survey, made about the same time, the rents reserved amounted to $3510 per annum.
At the time this lease was executed, the plantation was incumbered by a deed of trust, the debts secured thereby aggregating about $2*>,ooo, and a decree of foreclosure had been rendered by the circuit court of t-he proper county; but the cause was pending in this court, on appeal. Soon after-wards a decision was reached, which is reported in 32 Ark., 3‡6, under the style of Pickett v. Merchants National Bank. And pursuant to that decree the clerk and master of this court sold the premises on the 28th of February, 1879, to Louis Hanauer, for the price of $18,001. The sale was approved and a deed executed to the purchaser.
Mrs. Pickett was, at the date of the lease and of the sale, the owner of the equity of redemption. Her lessees were not parties to the foreclosure suit, but coming in. pendente lite were •chargeable with constructive notice and had, besides, actual notice of the pendency and status of the litigation. The rent for which they were liable for the year 1878 remained unpaid. And they had also, about the 21st of May, 1878, collected ^536.33 of insurance money belonging to Mrs. Pickett, which they refused to pay over. She accordingly brought her action in the circuit court of Shelby county, Tennessee, against them to recover this rent. and insurance money. The defendants ■claimed, to recoup the damages they had sustained by their eviction under the foreclosure sale. The jury returned a verdict of $3000 for the plaintiff. Mrs. Pickett having moved for ■a new trial, the court declared the verdict to be too small, and gave the defendants their option, either to consent that the amount of recovery be increased to $3850 or to submit to another trial. As they refused to raise the verdict, a new trial was granted. Mrs. Pickett now dismissed her action at law and filed her bill in the chancery court of Shelby county against them and Hanauer. In the trial of the action at law, it had been developed that Hanauer’s purchase was made at the instance and for the benefit of Ferguson & Hampson, and that he had subsequently quit-claimed to them, they remaining all the time in possession. The theory of Mrs. Pickett’s bill is, therefore, that Ferguson & Hampson w<gre the real purchasers, at the foreclosure sale, and that, by reason of the relation they sustained to her, their purchase enured to her benefit. She prays to redeem, upon the terms of refunding the purchase money actually advanced by Hanauer, less the amount due her by Ferguson & Hampson for insurance collected by them and not accounted for, and less, also, the rents of the place that-accrued both prior and subsequent to the sale.
Process was duly served upon Hanauer and Hampson, but. there was no service upon Ferguson, except constructive service-by publication in a newspaper, nor did he appear to the suit. He had, long before the bill was filed, removed his family from. Memphis and had taken up his permanent residence on the plantation, and had become a citizen of Arkansas. His connection with the firm of Ferguson & Hampson still continued, and down to the time of filing the bill he was in the habit of visiting Memphis frequently, but thereafter he systematically avoided going into Tennessee, for the avowed purpose of preventing the service of process upon him.
While the cause was still pending in the chancery court of’ Shelby county, Tennessee, Mrs. Pickett filed a substantial copy of her bill in the circuit court of Mississippi county in this, state. She charges that the original agreement between her and her tenants had been that they should make their rent notes payable to her order, so that she might sell or. hypothe cate them in the market, and thus raise funds to pay off the decree against Nodena; but that this stipulation was not inserted in the lease, because the acreage was not then certainly known, and the lessees had afterwards fraudulently refused to give their notes, with a view to cripple her resources and precipitate a sale, to the end that they might themselves become the purchasers. She avers that she also owned a valuable residence property in Memphis, which one of the beneficiaries in the trust deed had offered to take in satisfaction of his claim, amounting to $8508.58; and that, if her tenants had not thwarted her purposes, she could have satisfied the other creditors and have averted a sale. The prayer was that the bill might be retained until the final determination of the suit in Tennessee, to the end that if the plaintiff should be successful there, she might, by appropriate supplemental pleadings, enforce her equities thus ascertained by a decree here operating directly on the title of the lands, and if she should be defeated there, upon any grounds not concluding the merits, as for example, on account of the absence of Fergusqn, then she might be permitted to prosecute her bill as an independent suit for redemption; and in the event that she failed to establish her right to. redeem, she prayed to recover of Ferguson & Hampson her insurance money and the rents for 1878.
To this bill the three defendants filed a joint answer, which was made a cross-bill. They denied that Ferguson & Hampson were' the real purchasers at the foreclosure sale; but admitted that Hanauer had bought at their suggestion, and for their protection against irreparable injury, they having expended several thousand dollars in the year 1878 in repairs, fencing and clearing land, and in preparations for planting during the term of their lease, and being in danger of losing the benefits of these improvements and outlays by the impending sale, which Mrs. Pickett was powerless to prevent, she being, as it was alleged, utterly insolvent. They further admitted that Hanauer, about one year after the sale, had resold and conveyed the plantation to his co-defendants for $22,541, of which sum $9000 were paid in cash, and for the remainder, notes secured by a mortgage on the place were given, which were still unpaid. They denied that Ferguson & Hampson had ever agreed to make their notes for the rent. They admitted the non-payment of the insurance money and rent for 1878, but justified the detention of those sums to reimburse themselves for the loss of their term by the constructive eviction of themselves and determination of the tenancy by the foreclosure sale. They denied Mrs. Pickett’s right to redeem upon any terms, and alleged that since the purchase they had expended $25,000 in improvements, consisting of a- fine steam gin, thoroughly equipped with machinery of the latest pattern, the erection of a barn, two store houses and more than fifty tenant houses, the building, of a levee along the Mississippi river three-quarters of a mile long, the clearing and fencing of seven hundred acres of land, etc. And because the Tennessee court was unable to do complete justice in the premises for the want of jurisdiction over the person of Ferguson, and litigation there was likely to result in casting a cloud upon the title, it was prayed that Mrs. Pickett a.nd her solicitors might be enjoined from prosecuting that suit. A temporary injunction was awarded; but it was disregarded, after knowledge that it had issued, and the cause in Tennessee was pressed to a decree. Mrs. Pickett was accordingly adjudged to be in contempt. She afterwards offered to file a plea to the jurisdiction of the court, alleging her residence in Tennessee and that she had not been served with a subpoena to answer the cross-bill; but the court declined to entertain her plea until she had purged her contempt by procuring the decree in Tennessee to be set aside. She then asked leave, successively, to file a demurrer and answer to the cross-bill, and a motion for a continuance, and finally to dismiss her bill without prejudice. But the court refused to hear her, or to permit her to take any further steps in the cause until she obeyed the injunction. On the final hearing Mrs. Pickett was not permitted to introduce any evidence; but the opposite side read all of the records, papers and depositions, taken in behalf of both parties, that were used on the trial of the case in the chancery court of Shelby county. Mrs. Pickett’s bill was dismissed and upon the cross-bill it was decreed that the order restraining Mrs. Pickett from prosecuting her suit in Tennessee be perpetuated and that the title of Ferguson to the lands in controversy be quieted as against her claims. No decree was made in favor of Hampson or Hanauer on the cross-bill, presumably for the reason that the Tennessee court had retaliated by an order restraining the prosecution of the suit in Arkansas, and they, being subject to that jurisdiction, did not desire to fall under the displeasure of the court. From this decree Mrs. Pickett has appealed.
The case involves several questions of practice, which we have found to be more difficult of solution than the merits of the controversy. And first, as to the restraining a party from proceeding in the courts of another state; this is a matter of very great delicacy, almost inevitably leading to distressing conflicts of jurisdiction. For this reason the courts of some states, notably those of New York, have declined to interfere in such cases. But the jurisdiction is established by the clear weight of authority, as well as by the necessity of interposition under special circumstances where the foreign suit appears to be ill calculated to answer the ends of justice. Sto. Eq. Jur., Secs. 899-900; 1 High on Injunction, and cases cited; Bushley v. Munday, 5 Madd. Chy., 184; French v. Hay, 22 Wall, 250; Dehon v. Foster, 4 Allen, 545; Carron Iron Co. v. McLaren, 5 H. L. Cas., 416, 438; 2 Lead. Cas. in Eq., 4 Am. Ed., 1396.
The fact that the real estate, which is the subject of controversy, was situate in Arkansas, was not an insuperable obstacle in the way of doing complete justice by the Tennessee court. But as a court of equity in such cases acts in personam, it must have jurisdiction over the parties in order to administer the cause. Ferguson, an indispensable party to the litigation, was absent. Mrs. Pickett .was .thus forced to seek the assistance of the courts of this state. The two suits involve precisely the same questions between the same parties. The defendants to the suit last instituted in effect say: “ The property is here. The matter in controversy depends on the laws of Arkansas. The parties are all now before the court, which is not the cáse in the Tennessee suit. We insist that the whole controversy shall be settled here, and Mrs. Pickett be required to stay proceedings in Tennessee, as a vexatious harassment of us for the same cause of action, when it is evident that the result there will not finally conclude the rights of all the parties.” Acting upon these suggestions, the circuit court construed the filing of the bill to be an election by Mrs. Pickett to transfer the whole litigation to this forum. Such was , not in reality her intention, but only to affect any purchaser of the property with notice by a lis pendens, and possibly to acquire undoubted jurisdiction over Ferguson. She therefore filed what her counsel styles an auxiliary bill, to • hold the property until the determination of the suit in Tennessee, and then to carry the decree into effect if it should be favorable to her. But we are not aware of any precedent for such a bill. Between the courts of the several states there is no connection or dependence so as to render them subservient to each other. It is only such rights as have been ascertained by a concluded litigation that the courts of other states undertake to enforce. The court below properly assumed jurisdiction over the entire controversy. Mrs. Pickett had voluntarily submitted her rights to its determination and had invoked its aid. The very act of filing the bill implied this and could legally mean nothing less.
And there was an equity to restrain the prosecution of the suit in Tennessee, since it appeared that the court there had no jurisdiction over the person of Ferguson and could make no decree which would bind him.
But it is said that'the punishment visited upon Mrs. Pickett 1 A for her contumacy was excessive, extending to a deprivation of her status in court and of her right to defend against the cross-bill ; and the utmost the court could lawfully do in that behalf was to deny all applications addressed to the favor of the court, and not matters of common right. A court of equity has the power to refuse to hear a party, when he is in contempt for disobeying its order. Walker v. Walker, 82 N. Y, 260, and authorities cited. It is indeed rarely exercised, for it is seldom necessary to go so far.
In Casteel v. Casteel, 38 Ark., 477, the plaintiff being in contempt, his bill was dismissed and the cause was heard on the cross-bill alone.
But whatever errors the court below may have fallen into in this respect may be corrected here. All of the pleadings, papers and motions which Mrs. Pickett proposed, but was not allowed, to file, have been brought up by bills of exceptions. And although she was refused the privilege of adducing testimony, yet the opposite side read all of the evidence that had been taken in behalf of either party in the Tennessee suit. This evidence was quite voluminous, covering more than one thousand pages. And it was conceded on the oral argument that it embraced all of the evidence materially bearing upon the case that was accessible. The depositions of all the witnesses who were in a situation to know any of the facts likely to affect the decision were taken at great length, and under circumstances most favorable to elicit the whole truth; and some of the more important witnesses were repeatedly examined. So we feel assured that we are as completely in possession of the facts of this case as it is possible to be in any case of like nature where the facts are disputed. And it is our invariable practice not to remand chancery causes for further proceedings and proofs, where we.can plainly see what the rights and equities of the parties are, but to render such decree here as should have been rendered below.
In her answer to the cross-bill, Mrs. Pickett contended and now contends, that, the decree pronounced by the chancery court of Shelby county, Tennessee, after the filing of the cross-bill, was a conclusive adjudication between the parties to this suit, settling their respective rights in the premises, and forever estopping the plaintiffs in the cross-bill to aver or prove anything to the contrary in any other court where the same matters might be brought into question. Laying out of consideration the fact that this decree was entered up on the motion of her solicitor, in violation of the injunction from the Arkansas court, and looking at it as if no such injunction had issued, the conclusiveness of the decree will depend on the jurisdiction of the court which rendered it. It is not our purpose to inquire what effect the failure to get Ferguson before the court had upon its jurisdiction to proceed to a final determination as to the remaining defendants. No affirmative relief was granted in the present suit to Hampson or to Hanauer, and they have not appealed. Now, as Ferguson was neither personally summoned, nor voluntarily appeared in the Tennessee suit, and was not even a citizen of that state, no court sitting there could render any judgment against him which would be recognized elsewhere as of any validity. Such a judgment is treated in other jurisdictions as a mere nullity. Nor does it alter the case that Ferguson was a member of a commercial partnership whose situs was in Tennessee. Iglehart v. Moore, 16 Ark., 46; D'Arcy v. Ketchum, 11 How., 165; Public Works v. Columbia College, 17 Wall., 521; Pennoyer v. Neff, 95 U. S., 714.; St. Clair v. Cox, 106 U. S., 350.
The court was right in refusing Mrs. Pickett leave to dismiss her bill without prejudice, after the answer, in the nature ■of a cross-bill, had been filed. Allen, v Allen, 14 Ark., 666.
This brings us to the merits. And here it must be conceded, we think, that the purchase of Nodena by Hanauer was, in legal effect, a purchase by Ferguson 8c Hampson. Hanauer, it is true, used, his own money in paying for the place. Indeed, the evidence shows that it was entirely beyond the power of Ferguson & Hampson to- raise so considerable a-sum of money within so short a time. They were a young firm in good credit and excellent commercial standing; byt their capital was extremely limited. And this was ’ probably the chief reason why the purchase was made in the name of another, and not a desire to conceal their interest in it on account of any supposed incapacity on their part to bid owing to their relations with Mrs. Pickett. Hanauer was a wealthy merchant, closely connected with Hampson by family ties, and with the firm by business ties. He was willing to assist these young men out of the predicament in which they had involved themselves by taking a long lease of a mortgaged plantation, that was now advertised for peremptory sale, and to furnish the money to buy it. But he must have security. The plantation itself was a sufficient security, and one which it would not embarrass Ferguson & Hampson to give. , So he takes the legal title in his own name. Perhaps they might never be .in a condition to take, the land off his hands. In that event he would simply have made an investment. Thus, without any very definite understanding as to the terms upon which Ferguson & Hampson were to have the benefit of his purchase, Hanauer bought Nodena. Perhaps no trust arose to them out of this purchase which a court of equity would enforce. Perhaps a refusal by him to convey would have been a mere violation of a parol agreement; Perry on Trusts, Sec. 134.; Williard v. Williard, 56 Pa. St., 119. Still, the fact remains, that he purchased for them and not for himself. He did not expect to hold the land, but to resell to them. And he did afterwards convey to them! True, he charged them an advance of some $4500. But this was only a bonus for the accommodation, or a compensation for his risk and the use of his money.
We must then look at the case as if Ferguson & Hampson had been the bidders at the judicial sale. Now it is claimed that they, being tenants to Mrs. Pickett, could not bid, and that if the property was stricken off to them, they would be held in equity as trustees, and could only hold the title as security for the reimbursement of the amount expended.
Judge Story, in discussing the subject of constructive frauds practised by persons standing to each other in confidential relations, enumerates “the cases which arise from the relation of landlord and tenant, of partner and partner, of principal and surety, and various others, where mutual agencies, rights and duties are created between the parties by their own voluntary acts, or by operation of law.” Eq. Jur., Sec. 323. And in Perry on Trusts, Sec. 210, it is said: “ The relation of landlord and tenant, partner and partner, principal and surety, and tenants in common, may create such influences of trust and confidence that courts of equity will construe a trust to arise out of their contracts, or will decree such contracts to be set aside.”
But none of the cases cited in support of these sections were cases between landlord and tenant. *
In Scott v. Levy, 6 Lea., 662, where a sub-lessee purchased the lease-hold estate at an execution sale against his lessor, Mr. Justice Cooper, speaking for the court, says: “Besides, Moses Levy, at the time, by reason of his possession of the lease-hold property under his sub-lease, occupied such a fiduciary relation to his lessors, that he could not acquire a valid title against them by reason of the purchase of the property under an incumbrance. All he could do, would be to hold his lessors liable, under the covenant for quiet enjoyment, or warranty of title, for the amount expended in removing the incumbrance.” But as it had already been decided that there was no judgment in evidence to support the execution, and as, moreover, proof seems to have been offered of a contract between Levy and his lessor, that he should hold his purchase only as security for repayment, we cannot regard this as anything more than the expression of an opinion, by a very great judge in equity, that a ténant cannot buy his landlord’s title unT der execution and hold it for any other purpose except security.
There is, however, one case—Lansman v. Dralos, 10 Neb., 172 —which goes to the full length contended for by Mrs. Pickett’s counsel. That case asserts that, if a tenant in possession purchases the leased premises without surrendering his lease, or notifying his landlord, it will be presumed the purchase was made to protect his possession, and the landlord may redeem.
These are all the authorities on this point, favorable to Mrs. Pickett, that the industry of her counsel has been able to collect. On the other hand, it is settled law in this state that a tenant, who is under no obligation to pay the taxes, may purchase at tax sale the lands of which he is in possession and may set up such title, and the sale, if otherwise valid, extinguishes the landlord’s title and cuts off the lease. Bettison v Budd, 17 Ark., 546; Ferguson v. Etter, 21 Id., 160. See also Higgins v. Turner, 61 Mo., 249. And in Brittin v. Handy, 20 Ark., 381, it was ruled that unless some fraud can be shown to have been perpetrated, one tenant in common may purchase at forced sale the moiety of his co-tenant, and may retain and assert the title thereby acquired, as fully as if he were a stranger to the defendant in the judgment. The same principle is announced in Freeman on Co-Tenancy and Partition, Sec. 165.
So it is laid down in the text-books, and has been frequently decided, that a tenant may purchase the demised premises at an execution or judicial sale against the landlord, and that in any subsequent controversy between the parties relating to the possession, or the payment of rent, it may be shown that the landlord’s title has expired and the estate become vested in the tenant. 1 Wash. Real Estate, 3 ed., 361; Taylor’s Landlord & Tenant, Sec. 705; Wood on Same, Sec. 236; Bigelow on Estoppel, 2 ed., 374; Nellis v. Lathrop, 22 Wend., 121; Hetzie v. Barber, 69 N. Y., 1; Ryder v. Mansell, 66 Me., 167; Elliott v. Smith, 23 Pa. St., 131; Wolf v. Johnson, 30 Miss., 513; Camley v. Stanfield, 10 Texas, 546.
And in none of these cases is it intimated that while at law the tenant may purchase, yet in equity he cannot hold against the landlord’s option to redeem. On the contrary, in Casey v. Gregory, 13 B. Mon., 595,—a chancery case—it is said that the landlord has no more right to redeem in such a case than if the purchase had been by a stranger.
The obligations of a tenant are to pay his rents and to surrender possession at the expiration of his term. He cannot dispute the title under which he entered. He cannot buy in an outstanding title and set it up against his landlord. He cannot use his possession as a basis to acquire title as an actual settler, and thereupon found a claim hostile to his landlord: And any title which .he obtains in his own name, by means of hís personal residence, he holds for the benefit of his landlord. Waggener v. McLaughlin, 33 Ark., 195; Chavinger v. Reiman, 3 W. & S., 486. The foundation of the rule is an enjoyment by permission. And as the estoppel begins by permissive possession, it continues only so long as possession is retained by permission. If the tenant is evicted, he no longer owes allegiance to one who does not protect him. Consequently, if the landlord, by the determination of his title after demise, loses the power to permit possession, the tenant owes him no duties for the future. Bigelow on Estoppel, 351.
Now, the reasons which prevent a tenant from purchasing and asserting an adversary title have no application when it is ,the landlord’s own title that he buys. • In this case he does not deny the landlord’s title, but affirms it. There is no doubt he may buy of the landlord at private sale. What considerations then of law or public policy prevent his bidding when his landlord’s title is exposed at an involuntary sale? What duty, inconsistent with his right to purchase, does he owe his landlord ? The bidding is open to all the world and the injury to the landlord is no greater than if any other person had bought; if, indeed, that can be called injury which happens by operation of law, and by the act, consent or neglect of the judgment defendant.
But it is claimed that the sale was brought about by the failure and refusal of Ferguson & Hampson to perform .the duties which they owed to Mrs. Pickett—that if they had paid her what was due her by contract and had made their rent notes, she, with the aid of her Memphis property, would have been able to relieve Nodena from the encumbrance. At the date of the foreclosure sale, the mortgage debts amounted to more than $20,000. The Memphis property was totally unavailable for Mrs. Pickett’s purposes. The creditor whom she
was trying to induce to take it for his claim, consented to do so ■only» upon the exhibition of a clear title.- Upon investigation it turned out that the legal title was not in Mrs. Pickett, but in a trustee for her and that the trustee was dead. A bill was filed for the appointment of another trustee. But it seems that the original trustee was invested with a large discretion in consenting, or refusing to consent, to any disposition of the corpus of the estate which the beneficiary might propose to make. And the question arose whether the court could clothe the new trustee with the same powers and discretion which the creator of the trust had vested in a trustee of his own selection. This •question, as we understand, the chancery court of Shelby county answered in the negative. And although it is shown that the ■decree was afterwards reversed by the supreme court of Tennessee, yet the reversal came after the master had sold Nodena.
Then as to the agreement to give notes, the lease itself, which is the best evidence of the terms of the contract, con-' tains no such stipulation, and this is not a bill for reformation. The suggestion of the reason for its omission, that the acreage was unknown, is not at all satisfactory; because if that were a term of the contract, it might have been expressed in six words, though the number of acres might require to be ascertained by a subsequent survey. The evidence is very conflicting upon the point whether such an agreement was ever in fact made. Certainly it would have been a. very foolish thing to do, knowing, as Ferguson & Hampson did, that Mrs. Pickett was a married woman, whose ability to respond in damages was not great, even if she were liable at all; and that the plantation was under mortgage, to foreclose which, proceedings were then pending. It would have been to put themselves completely in her power and at her mercy. For what security would they have that the money raised upon the notes would be applied to the payment of the mortgage debts ? If made, the notes would belong to Mrs. Pickett; she might negotiate them and apply the proceeds to any purpose she saw fit. Thus the tenancy might be determined by an eviction and yet the tenants remain liable to pay the notes. And Ferguson & Hampson had been advised by counsel not to incur this risk.
But whatever the agreement on this point may have been, our opinion is that parol evidence of its terms was inadmissible in this suit. The parties have deliberately reduced their' engagements to writing. There is no averment that owing to fraud, accident or mistake, the writing does not fully express the concurrent intentions of the parties. And “all antecedent propositions, negotiations and parol interlocutions on the same subject are to be deemed merged in” the written contract.
Ferguson & Hampson had, however, no just cause or legal excuse to withold from Mrs. Pickett her insurance money and the overdue rents. They claimed to do this to cover their damages from an apprehended eviction. There is in the lease _ no express covenant for quiet enjoyment; but doubtless such a covenant is implied in every mutual contract for leasing land. But a tenant cannot set up apprehended difficulties of this character to defeat the payment of his rents. These sums amounted to more than $4000. But there is no reason to suppose that, if they had been paid' promptly into her hands, as they should have been, Mrs. Pickett could have averted the sale of Nodena. Hence that sale can not be said to have been occasioned through the fault of the lessees. And in not providing in its decree for the payment to Mrs. Pickett of these several sums, with interest, the circuit court committed an error to her prejudice.
A personal judgment will be entered here in favor of Mrs. Pickett against Ferguson & Hampson for $536.33, with six per cent interest per annum from May 21, 1878, and for the further sum of $3510.10, with a like rate of interest from December 1, 1878. Mrs. Pickett will recover her costs in this court. | [
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Hon. Sol. F. Clark, Special Judge.
In September, 1875, Bernard McLeod, a resident of Lee county, died intestate, leaving considerable estate in personal property and in lands, leaving a widow, Emma McLeod, and three children, Bettie, Kate and Mamie, his sole heirs at law, and the latter two (Kate and Mamie) infants under the age of twenty-one years.
Letters of administration were granted to the appellant, 'Geo. W. McLeod, who was a brother of the deceased, on the 22d day of September, 1875, and having given bond, with the defendants, Emma Griffis, H. N. Hutton, B. B. Nunnally, F. M. Hill, J. H. Warfield, W. J. Gellaen, J. H. Fowlkes, J. D. Lounsbery and C. W. Hickey, as his securities, proceeded to '.■administer and settle up the estate. On the 6th of November, ■1875, he filed in the probate court of that county an appraisement of the personal property, together with a statement of the aggregate amount of dioses in action (notes and accounts) ■estimating such choses in action at their face value.
The administrator filed no inventory separate and distinct from such appraisement list. So appraised and estimated, the personal estate amounted to the'sum of $33,627.65. On the 27th of January, 1877, he filed his first annual account current, in which he is charged with a balance in his hands of $5608.29. On November 19,'1877, he filed a second account current, in which he is charged with a balance in his hands of $7795.17. And on the 7th of January, 1879, he filed his account for settlement; in which accounts were balanced. ' To none of these accounts, or settlements was there any exception, and they were in regular and. due course confirmed-by the probate court, and the administrator and his securities were fully discharged. Upon-the final settlement the administrator reports that the whole amount of personal assets, including rents of real estate, which had been disbursed by him, was the sum of $46,461.84. •
After the granting of letters to said Geo. W. McLeod, the widow, Emma, intermarried with the appellee,'R. D. Griffis, and Griffis having been appointed guardian of the said two minor children, Kate and Mamie, on the 29th of September, 1879, filed his complaint in equity in the case, as such guardian, against the appellant and the sureties on his administrator’s bond, in which, after alleging the facts above stated, he charged the administrator with extensive frauds and mistakes in his management of the estate and in his settlements, consisting not only of false charges, but of fraudulent omission to charge himself with assets which came to his hands, and after such specific charges of fraud, covering most of the items in the administrator’s accounts and involving an estimated amount of $8726.11, alleged to be due the estate on a proper statement of accounts, further alleges that the Complainant has reason to believe and does believe that there are other gross frauds in such settlement accounts covered up in such a manner as to defy detection without the aid of a court of chancery; and prays that the said defendant may be required to produce a full list of all sums received or paid out, from whom or what source received, and to whom paid and for what purposes; and that the accounts be referred to a master to be examined and re-stated; and that the plaintiff might have judgment of the chancery court for the sum of $8726.11, as was so found to be due, and such further sum as might be shown to be due upon final hearing, etc.
Among the numerous other charges of mistakes and frauds in the complaint is the charge that the notes and accounts due the estate were only inventoried and set out in the aggregate.
To this complaint the administrator and the other defendants, his bondsmen, (except the widow Emma, wife of complainant, who was on the administrator’s bond,) put in an answer and a demurrer, and attempt to make the answer a cross-petition.
In this answer they admit that the administrator’s accounts are very defective, inartificially made up, and contain many errors and deficiencies, but they deny all actual or intentional fraud on the part of the administrator; and in regard to many of the charges as to specific items they admit the truth of the allegations in the complaint, but attribute it to error and inadvertence; and they admit that the notes and accounts should have been specifically set out.
By way of cross-matter defendants claim that many items of charges against the administrator, in his accounts as settled, •are erroneous; that he has not taken credit in many instances where he was entitled to do so ; and admit that the accounts covering the whole administration ought to be re-stated, alleging that if properly re-stated the estate would be found to be indebted to the administrator in a large amount, and they expressly submit to the jurisdiction of the chancellor to re-state the account and render a final decree.
The cause set out in the demurrer to complaint was a want of parties, alleging that Bettie McLeod had inter-married with Frank Bedford, that she and her husband were necessary parties, and resided in Tennessee.
By exhibits the answer and cross-complaint set out specifically what purport to be all the notes and accounts charged to be omitted in the inventory and settlements of the administrator, swelling the record to a great length.
Frank Bedford and wife were made parties by order of publication. An amended complaint and answer to the cross-complaint was put in; and other motions and pleadings not material here to be mentioned.
The chancellor, on the 6th of November, 1880, granted an order, founded expressly upon the consent of both parties, submitting it to John M. Parrott, as master in chancery, to restate the accounts of the administrator, directing the master to charge him with all the assets of the estate which came to his hands, and to give him credit with all disbursements properly made and for all desperate debts which could not be collected, and with the maximum commissions allowed by law.
The accounts were accordingly re-stated by the master, who filed his report at the April term, 1882, setting out his account in full, and in which the administrator is charged with the sum of $51,174.18 and credited with the sum of $46,259.44, leaving a balance due the estate from the administrator of $4914.74. To this the master added interest at six per cent, from the 7th of January, 1879, to the date of final settlement, January 7, 1882, a term of three years, a sum of $884.65, making the aggregate of $5799.39.
To this account exceptions were filed by both parties, some of which were sustained and others overruled, and the court, as a result, rendered a decree against the administrator and his sureties in which the court determines that the total assets with which the said administrator was chargeable was the sum of $52,067.93, and the total credits to which he was entitled was the sum of $46,096.99, showing a balance of $5970.94, and to this the court added interest at six per cent, to the date of the decree, making the aggregate sum of $7533.33, which was decreed to be paid by the administrator and his bondsmen to the clerk of the court, who was made commissioner of the court to receive the same, within sixty days from the rendition of the decree, or that execution should issue as at law.
The first and most important question for our consideration is whether the chancery court exceeded its jurisdiction, or rather its judicial powers, in its proceedings and decree in the case.
This court has repeatedly held that a court of chancery has . . 1 no original or appellate jurisdiction m matters of probate and the administration of estates. The Constitution of 1874, in parceling out to the several courts and defining their jurisdiction, has bestowed this branch of jurisprudence upon the probate courts, and their decrees cannot be reviewed or reversed in a collateral proceeding in chancery. The orders, of that court upon allowing claims and 'confirming accounts and settlements of administrators are judgments of a court of competent jurisdiction, and ample provisions have been made for appeals from such orders and decrees to the circuit and supreme courts for any mere errors and irregularities in their proceedings; and the mode of redress for any such errors and irregularities is through such appeal to the tribunals constitutionally authorized to review such proceedings and correct such errors. A court of chancery can only inquire into such orders and proceedings in the same manner and upon the same grounds that it may investigate the judgments and proceedings of any and all other courts, i. e., upon charges of fraud, accident or mistake, and the correction of such frauds and mistakes is the extent of their constitutional power. See the cases of Osborne, et al., v. Graham, 30 Ark., 66; Reinhardt v. Gartrell, 33 Ark., 727; Mock v. Pleasants, 34 Ark., 63; Nathan v. Lehman, et al., 39 Ark., 256; Trimble v. James, ad'r, 40 Ark., 393; Dyer, et al., v. Jacoway, et al., 42 Ark., 186.
In the case of Reinhardt v. Gartrell, which in most points resembles this case, this court, by Justice Eakin, delivering the opinion, used this language:
“We think the chancellor should have found the particular points in which the fraud consisted, and have confined the reference to the correction of the settlement as to those points where the errors originally occurred, and where they entered into subsequent statements; and this finding should itself be always upon the allegations of the bill pointing out the fratid and not upon vague and general charges. General assertions of fraudulent intent add nothing to the strength of a bill unless made applicable to specific acts or declarations.”
And in the later case of Dyer v. Jacoway this court, in further defining the limit of this ground of juiisdiction, said:
“The jurisdiction of courts of chancery to interfere with the proceedings for the settlement of estates in the probate courts rests upoir the same grounds with their interference with the judgments and proceedings of any other courts whatever. It does not rest upon any jurisdiction of the original subject matter, but upon this broad principle, that courts of equity will not allow the proceedings of any other courts to be made the means of perpetrating successful frauds, or will relieve against accident or mistake which other courts could neither prevent nor cure, but which, unrelieved, would cause irreparable wrong and injustice.”
It is manifest that if the chancery court be permitted to assume a general jurisdiction to review the proceedings of the probate courts in the matter of the settlement of estates, or to set aside or disregard their proceedings, and to proceed by virtue of any original ground of jurisdiction in itself to re-adjudicate the matters involved in those courts, there is no good reason why it should not assume the same jurisdiction with regard to the proceedings of the circuit courts, or the supreme court, or any other court. It may be conceded that the chancery court has an ancient jurisdiction, in matters of account and over administrators as trustees and their estates as trust property, and that it has not, and never had, any such jurisdiction over subjects within the cognizance of circuit courts and other 'courts of law. But the provisions of the Constitution have effectually deprived these courts of this branch of their ancient jurisdiction, and, as we have said, bestowed it upon the probate courts. And under these constitutional provisions the relation of these courts to the probate court and its powers has become the same as its relation to other courts. We cannot disregard these constitutional provisions. To do so would not only be to obliterate the boundary lines between the powers of the several courts, as established by' the Constitution, but it would be effectually to usurp the powers and duties of the probate courts, and render them utterly useless. For what would be the use of these courts and their proceedings, if another tribunal, with constitutional power to enforce its decrees, might treat them as nullities and adjudicate the same subject matters over again at the instigation of any of the parties? Doubtless, the argument that without the exercise of such jurisdiction in the chancery court, minor heirs, incapable of watching the proceedings in the probate court, often suffer through the faithlessness of their trustees and guardians, is very cogent and impressive, and appeals strongly to our sympathies. But such arguments address themselves, not to our judicial understandings, but to our feelings as men. The judicial mind is compelled to disregard them as appertaining to the field of political or legislative policy.
A glance, however, at the foregoing statement of the proceedings in this case will show that the chancery court did not confine itself to. its constitutional limits, as thus defined here and in the repeated decisions of this court referred to. On the contrary, without regard to any charges or any proof of any frauds or accidents or mistakes in the orders or proceedings of the probate court, the court referred the case to the master to re-state the accounts of the administrator, and the same were by the master so re-stated, as well the items and matters upon which no issue of fraud was made, and the regularity and justice of which were not questioned, either by the charges or the evidence, as those that were. The orders and proceedings of that court are entirely disregarded and treated as nullities. It is manifest that to sustain these proceedings of the chancery court, we must hold that the orders and judgments of the probate courts import no verity whatever, and that the couits of chancery have original jurisdiction to settle the accounts of administrators, unless we can find some ground upon which such proceedings can be sustained as an exception to , these general principles. And it has been very ably argued by the learned counsel for the appellees, that the court here had authority and jurisdiction for its proceedings by consent of the defendants; and they urge that, while denying any intentional frauds, they have admitted great irregularities and errors in the settlements in the probate court. That in their answer they do not even deny the specific facts, constituting the charges of fraud, except as to the intention of the administrator, and fully consent that the account might be re-stated. That by a cross-bill they have alleged that such errors and mistakes were mainly to the detriment of the administrator himself, and that upon a corrected statement the estate would be found indebted to him, and prayed a decree in his behalf for any balance which might be found due him upon such restatement. All of which is very true. And they present for our consideration two questions; one as to how far consent of parties can give jurisdiction, and the other as to how far the jurisdiction of the court may be enlarged by the cross-complaint.
The former question we will first consider. It has been stated as a rule that consent can give jurisdiction over parties, but not over the subject matters of litigation. But this rule is by no means universally true, for the subject matter often depends upon the pleadings; and generally consent can enlarge the jurisdiction of the court to such subjects as are within the constitutional or judicial power, but no consent can confer jurisdiction over the subject matter where none is given by law. See Dudley v. Mayhew 3 N. Y., 9; Beach v. Nixon, 9 N. Y., 36; Avards v. Rhodes, 8 Exch., 312; Lawrence v. Wilcox, 1 Ad. & E., 941.
And in Wilson v. Mason, 3 Ark., 494, this “under the Constitution of this S*tribunals cannot a subject matter over which another has the exclusive original cognizance.”
We are clear, therefore, that the consent of the defendants could not give to the chancery court any power or authority to inquire into the proceedings of the probate court, farther than to determine how far they were vitiated or affected by fraud, accident or mistake. To this extent'the jurisdiction could be extended by the consent of the parties. See Strout's Ex’r v. Van Zandt, 30 Ark., 89.
By this, however, we mean to say that had the administrator denied all frauds, accidents and mistakes in his accounts in his answer and objected to a reference of the case to a master, the inquiry of the court would have been limited to the items specifically charged to be fraudulent, and the circumstances of the fraud, accident or mistake alleged must have been so alleged as to be capable of proof. In other words, the plaintiff must have stated a case which, if true, would have entitled him to relief. The consent of the defendants enlarged the jurisdiction to an inquiry into any and all frauds, accidents or mistakes in the records of the case in the probate court, and entitled the plaintiff to recover for any of those which he could establish by proof, for the constitutional power of the court extended thus far and no farther; and this without regard to the specific allegations in the complaint. No agreement or consent on the part of the defendants could go farther.
To the extent that the orders and decrees of the probate court were not thus impeached, they should have been allowed to stand. No consent of parties could confer power to disregard them, as we have seen the court did.
The next question is, has the defendant by his cross-comitled himself or the plaintiff to have the proceedings further than to inquire into the tion whether the administrator can be allowed, either by cross-complaint, as in this case, or by original bill, to have his accounts, after the assets have been fully disbursed and the administration closed, opened and re-stated so as tc obtain a ■decree for a balance in his behalf. But as we regard this point immaterial in this case, we express no opinion upon it. We think there is no ground set up in the cross-complaint, much less proved by the evidence, which could entitle the defendant to any affirmative relief, or any right which would not be available to him under his response to the bill; for the cross-complaint admits more errors in the proceedings against the administrator than those in his behalf.
In the case of Trimble and wife v. James, adm'r, 40 Ark., 393, we held that the administrator, without any cross-complaint, was entitled to be credited with all errors or mistakes found in his behalf, on the ground that the plaintiffs seeking equity were bound to do equity. And in the equitable jurisdiction over accounts this is a principle as old as the chancery courts.
We do not think, therefore, the court, by reason of anything in the cross-complaint, acquired any additional power to inquire into the proceedings of the probate court. It may be, and often is, no doubt, a matter of great difficulty for the chancellor, upon the charges and evidence before him, to distinguish in a matter of complicated accounts what is fraudulent or the result of accident or mistake, from what is mere error, remediable only on appeal. But this is a difficulty inherent in the subject, and must be met by the patient exercise of the discriminating power of the chancellor. A vast amount of ■evidence has been taken in this case, very much of which has no tendency to prove either fraud, accident or mistake prejudicial to the estate. But we cannot say there is no sue1, •evidence in the record; and the disposition, which we fee' .strained to make of the case, will render it unnecess." particularize what, among the accounts and be regarded as within the cognizance of the court, as shown by such evidence.
It is proper to state, however, that the failure to file an inventory 0f personal assets, an appraisement list having been filed, or the failure to itemize the list of notes and accounts, would not be a fraud within the jurisdiction of the court unless shown to result in a loss to the estate. If the assets, including the notes and accounts (choses in action), were subsequently duly administered and accounted for, such omissions would be only irregularities not remediable in this collateral proceeding.
An omission to account for moneys or other assets actually , J received by the administrator has been held by this court to be a legal fraud, which the court will correct whether the omission was intended or by mistake. Mistakes of which the court will take cognizance must be such acts or omissions as were unintended by the administrator, and resulted in loss to the estate.
The proceedings of the administrator to dispose of a stock of goods at private sales at retail, according to the ordinary course of merchandising, under the orders of the court, though not a regular proceeding by law, would not be per ^ fraudulent, but any loss to the estate, proved to be the result of such proceeding, will authorize the inquiry into the bona fides of the administrator in making such sales.
So the purchase of a stock of goods, belonging to the estate, by the administrator, although done under the orders of the probate court, is forbidden by law, and it is fully competent in this proceeding to surcharge the administrator with any loss which can be shown to have resulted therefrom.
within the discretion of the probate court to allow the or to convert one class of assets into another, such, ber, in order to obtain a sale and disposition thereof, the administrator accounting in good faith for the proceeds and gains of such transaction. The bona fides of the administrator, in such proceeding, can only be inquired into.
A strong appeal is made to us to sustain the jurisdiction, on the ground that to set aside all the proceedings of the administrator and re-state his accounts was indispensable to the object of administering justice; that the rights of the parties could not be reached in any other way; and we are not disposed to deny that this is, in a general sense, true, and that, in such general sense, the proceedings and decree of the court below have done justice to the parties.
But what is right and just in a moral sense in the breast of the chancellor is not the standard by which his powers are to be exercised, but by what the law prescribes. Justice is supposed to be centered in the remedies which the law has provided, and the courts are not at liberty to depart from the letter of these provisions to enforce moral convictions of right and wrong.
It follows that the decree of the court below must be reversed and set aside, and the cause remanded for further proceedings as herein directed. Let the case be again referred to the master to state an account upon the principles herein announced, using for the purpose the pleadings, exhibits and proof in the record, charging the administrator with such losses to the estate as the proofs show to be the result of intentional or legal fraud, or as occurred through accident or mistake, and crediting him with such mistakes or errors as are shown to be in his favor, and charging him with legal interest on any balance against him from the date of his final settlement in the probate court.
Hon. W. W. Smith did not sit in this case. | [
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Smith, J.
The appellants, plaintiffs below, were dealers in second-hand machinery in Chicago, Illinois; Bocage & Co. were practical machinists at Pine Bluff. In the month of March, 1883, a correspondence took place between the parties in regard to a compound shaper, a machine used in planing brass. The price of such a tool, when new, is $400 or $500. But the plaintiffs stated that they had one in stock, which had been recently overhauled, was in good condition and almost as good as new, for which they would take #250. A minute description and a photograph of the planer were enclosed. In April another photograph of the machine was sent and the plaintiff stated that it was in good working order, with the exception of certain specified defects, and it was suggested that the defendants delegate some person in Chicago to examine it. In reply the defendants say, in substance: “If your machine is in No. 1 order, no lost motion in any of its working parts from wear, and is clean and bright, you may ship it to us and we will pay $100 in cash and give our note for $150, payable September 1, 1883.” The machine was accordingly shipped and the defendants notified by letter, in which a note was enclosed, for their signature, “after they had examined the tool.”
The defendants received the tool and paid freight, amounting to some $42.05, and after setting it up and working it, expressed dissatisfaction and wrote to the plaintiffs to know what they should do. Upon .receipt of this, the plaintiffs directed them to send the machine back to Chicago and collect the freight charges of the railroad; the custom in such cases being, as the plaintiffs .testify, for the railroads to advance the charges and hold the property for repayment. This the defendants declined to do, but proposed to keep the machine if the plaintiffs would deduct out of the cash payment the aforesaid sum of $42.05, freight, which the defendants had expended. This proposition was accepted; and the defendants, after having had the machine in their possession for more than a month, remitted $57.95, and made the note for $150, upon which they are now sued. The note matured in September and was allowed to go to protest. The plaintiffs wrote a sharp remonstrance, threatening an action. The defendants excused themselves on account of financial depression in the country, the result of short crops; complained that the machine had not answered their expectations; but added, “That does not figure in the debt; we owe it and will pay.”
However, they did not pay; and when sued set up by way of defense fraudulent representations by the plaintiffs in regard to the condition of the machine when sold, breach of warranty and damages in consequence.
The cause was tried without the intervention of a jury and the circuit court found the facts to be that the defendants purchased the property under false representations as. to its character, and have sustained damages by reason of said purchase to the extent of $100, and are entitled to have the same repaid before returning the machine. Upon this finding judgment was entered that the defendants return to the plaintiffs the said shaper upon the payment, by plaintiffs, of the sum of $100, expended by the defendants.
This is a singular result. Without stopping to criticise the a rr ° f°rm the judgment, there is nothing in the testimony to support the finding'of the court. A purchaser takes the risk of the quality of an article sold unless there be fraud or warranty. Now, here was certainly no express warranty. And in a sale of chattels, while there is an implied warranty of title, there is none of quality. Mere representation is not warranty, the relation of buyer and seller not being a confidential one. Hence all that was said in the earlier part of the correspondence about the machine being nearly as good as new, and about its being in good working order, was but the ordinary language of puffing and commendation—a mere expression of opinion not calculated to deceive any man of common prudence. Whitaker v. Eastwick, 75 Pa. St., 229; Berman v. Woods, 38 Ark., 351; Hanger v. Evins, Ib., 334.
When the defendants had received the machine, had set it up and put it into operation, and were disappointed in its workings, they might well have declined to take it upon the terms proposed and might have held possession of it until they were reimbursed for the charges they had advanced. For they only ordered its shipment in case it was in a certain condition. But after they had examined it and discovered its defects, or some of them, they offered to pay a reduced price and their offer.was accepted. The antecedent representations made by the sellers as an inducement to the purchase, but forming no part of the contract as concluded, were not in the nature of warranties. Benjamin on Sales, 4 Am. Ed., Sec. 610. The means of knowledge were equally available to both parties, or if there was a difference in this respect, it was in favor of the defendants. For Bocage, the manager of the firm, testified that he was a machinist of forty years’ experience—that he knew all about machinery and could build an engine complete. The .subject of purchase was open to inspection; and if the defendants did not avail themselves of their opportunities, and did not, in point of fact, ascertain that the machine was incurably defective until October,'1883, they cannot be heard' to say, in impeachment of the contract of sale, that they were deceived by the plaintiffs’ misrepresentations. Slaughter’s Adm’r v. Gerson, 13 Wall., 379.
The plaintiffs were guilty of no fraud; they were not the manufacturers of the machine; the buyers had ample opportunities of inspection, and exacted no express warranty. The maxim caveat emptor applies and the defendants are liable for that part of the price remaining unpaid, notwithstanding the machine may have turned out to be totally worthless and fit only to go into the furnace as scrap iron. Barnard v. Kellogg, 10 Wall., 383. And all of the evidence, going to show defects in the planer, was inadmissible; for these the defendants knew, at the time of purchase, or, what amounts to the same thing, had the means of knowledge. All that occurred, to the final consummation of the trade, may be safely left out of view. But we have looked carefully through the entire correspondence, the negotiations having been by letters, all of which are set out, and the parties never having met in person; so that we are enabled to see the whole transaction as it transpired.
The findings and judgment should have been for the plaintiffs. And because they were not, the judgment is reversed, and a new trial awarded. | [
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Cockrill, C. J.
On the trial the appellee was allowed to introduce testimony tending to prove that the rent reserved for the land was much less than the amount recited in the contracts of lease between the appellants and their tenants. The contention was that the appellants had added store accounts, due them for a previous year by their tenants, to the amount actually reserved- as rents, and called the whole amount rent. The appellee claimed under a mortgage, executed before the written contracts of lease, and as his title was thus anterior to the date of the reciting deeds, he was not bound,by their terms. For this reason, if no other, the court was right in permitting him to show the true consideration of the leases. Talbot v. Wilkins, 31 Ark., 411; Carver v. Jackson, 4 Pet., U. S., 4, 82; 1 Greenl. Ev., Sec. 21, n. 1.
It was not competent for the landlord and tenant to bind a prior mortgagee of the crop, by an agreement between themselves to include in their rent contracts an amount due the landlord on another and different account, merely by designating the whole amount “rent.” Varner v. Rice, 39 Ark., 344. What was actually due as rent took precedence over the mortgage by virtue of the statutory lien, and the mortgagee could not recover possession of the crop from the landlord without paying him what was due him on this account. Buck v. Lee, 36 Ark., 525.
Before suit the appellee tendered the amount he believed ..to be due on account of the lien, but the appellants declined it, saying they would accept nothing less than the amounts recited in their leases. Pending the trial the.appellee paid the appellants, in the presence of the jury, a sum which they by their verdict have found to be all that was due for rent and gin charges. The appellants cannot claim precedence over the mortgage for more, and the judgment must be affirmed. | [
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Smith, J.
The cause of action was the killing of' live stock by the train of a railroad operated by a receiver. The action was begun before a justice of the peace, and damages were laid at $130. The'question of jurisdiction has not been raised, but cannot be overlooked. As the damages claimed exceeded $100, and arose out of an injury to personal property, the justice had no jurisdiction over the subject matter of the controversy. Constitution of 1874, Art. 7, Sec. 40; L. R., M. R. & Tex. R'y v. Manees, 44 Ark., 100.
The judgment of the Pulaski circuit court is vacated and the cause dismissed. | [
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Cockrill, C. J.
The appellee sued the appellant to remove a cloud from the title of real estate in Fort Smith, and on the 6th of February, 1884, a decree was entered in his favor in accordance with the prayer of the complaint. From this decree the clerk of this court granted an appeal in May, of the same year. Pending the appeal the circuit court, where the decree was rendered, caused the record to be amended so as to recite that the cause had been heard on oral as well as written evidence. This was done by an appropriate nunc pro time order. The appellant by attorney opposed the granting of the motion to amend the record, and after the order was made asked the court, as the record entry recites, “to allow him a reasonable time within which to prepare and present, in the form of a bill of exceptions, all the evidence, written and oral, which was introduced on the trial of the cause, and have the bill of exceptions, when prepared, filed and made a part of the record.” The court declined to comply with the request. The record of the proceedings, had subsequent to the appeal, has been brought here by certiorari, upon suggestion of a diminution of the record.
The power of a circuit court to amend its record so as to cause it to speak the truth is one inherent in the idea of justice itself. The power has been frequently exercised pending an appeal to this court, and the amended record has in every such instance been treated as the true one. The appellant’s contention that the insertion of the words oral evidence in the reciting part of the decree, revives his right to file a bill of exceptions, is not tenable. That right had expired with the term at which the decree was rendered, and the circuit court, unless sitting in chancery in a proceeding for the purpose of relieving against fraud, accident or mistake, had lost control over the matter. St. Louis, I. M. & S. Ry v. Holman, ante, p. 102; Carroll v. Pryor, 38 Ark., 283.
The amendment that was made added nothing to the force of the decree. It was merely the record of a fact, which the appellant as a party to the suit is presumed to have had knowledge of from the first. Indeed the decree recites that the cause was heard on the “bill, answer, exhibits and proofs,” and the court found as facts that the appellee had established his title by.limitation as well as by deed.
The record here contains none of the appellee’s paper title, . . no proof whatever except the appellants chain of title 1 x 1 A tracing to a source common with that found by the court for appellee.
It is evident from this, without the aid of the amendment, that the court had before it evidence which the record does not contain, and we will presume that it was sufficient to sustain the finding of the court and the decree. Omnia praesumuntur rite esse acta donee probetur in contrarium. This presumption prevails after decree rendered, to the extent of curing every defect in the allegations of the pleading which by reasonable intendment may be considered as having been proved. Everything necessarily implied from the facts stated will be presumed to have been proved. A title defectively set •out is aided by the finding of the chancellor as it would be by the verdict of a jury. Every fact necessary to a perfect complaint to remove a cloud may be fairly inferred from the complaint in the case.
Let the, decree be affirmed. | [
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Cockrill, C. J.
The appellee instituted suit against appellant to recover the sum of $400, which he alleged was due him for his care and expense in rearing and maintaining the appellant’s infant daughter. There was a verdict and judgment for the plaintiff for $200. The defendant assigned no errors to the rulings of the court in the progress^ of the trial, but moved for a new trial solely upon the ground that the verdict was contrary to the evidence and the instructions of the court. The motion was overruled, and the defendant, who is the appellant here, presses the same questions for our consideration.
Looking at the testimony for the purpose of sustaining the verdict, if it can be done, we find from a mass of somewhat conflicting testimony that this state of facts might have been deduced by the jury.
Mrs- Jordan, the wife of the appellant, died in 1869, leaving a child about five months of age. The infant needed a mother’s care, and this Jordan was unable to afford it in his own household. The appellee’s wife was Jordan’s sister. The three were together soon after the funeral of the mother, and the appellant, in the presence of the appellee, requested his sister to take the child to her home and rear it for him. The appellee assented to this, and the child was taken to his house and permitted to remain for thirteen years. At the end of that time she was removed by her father for the purpose of giving her better educational facilities. The appellee, it appears, was a poor man. The appellant was in better circumstances than he, and while he manifested a continual interest in his daughter’s welfare, and occasionally contributed to her support, the appellee ■was permitted to bear the chief expense of her maintenance.
The duty of parents to provide for their children is, says Blackstone, a principle of natural law. While there is conflict in the authorities in determining when this moral obligation becomes a legal one, all are agreed that the moral obligation of the parent to perform this duty is a sufficient consideration to sustain a promise to pay another to relieve him of the burden. Circumstances from which a promise may be inferred will raise the presumption of an implied contract in this as in other classes of cases. Indeed, so zealous are the courts to enforce this obligation, that slight evidence has sometimes been held sufficient to warrant the inference that the parent has contracted to pay for the maintenance of, or necessaries furnished, his infant child. Schouler Dom. Rel., 329; 2 Kent Com., 190; McGoon v. Irvin, 1 Pin., Wis., 526; Duffy v. Duffy, 44 Penn. St., 399.
From the circumstances detailed above, the jury were not without warrant in concluding that the appellant intended to pay the appellee a reasonable amount for the maintenance of his child, and that he impliedly contracted to do so. The fact that the child was taken at his request would, of itself, raise this presumption, Duffy v. Duffy, sup.; Chilcott v. Trimble, 13 Barb., 502, and the burden of proof was on the appellant to overturn it. He undertook to do so by proving a remarriage, and a demand on the part of himself and second wife for the custody of the child, when it was about a year old; and it is argued that there could be no claim for compensation after that time. The proof is not clear as to the nature of the' demand, and it is certain that the surrender of the child was not insisted upon by the appellant.
It was the province of the jury to weigh the evidence and determine the facts. They have done so, and their verdict is binding upon us.
Affirm. | [
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Cockrill, C. J.
The Appellee was indicted for betting at cards.' At the same time a number of other persons were indicted for the like offense. They appeared and the following order was entered, viz: “ By consent of counsel for Plaintiff and Defendants, it is by the Court ordered that a verdict of not guilty be entered in each of the following cases, to-wit Here follows a list of cases numbered from 107 to 117 inclusive, except 108 and 109, among them the case against the Appellee. The order then continues as follows: “ And that the judgment in these cases abide by the decision of the Supreme Court of Arkansas in case numbered 409, State of Arkansas v. Henry Wade.”
At the second term after the entry of this order the Appellee filed a plea of former acquittal of the offense charged in the indictment, and relied upon the record entry cited above to verify it; A demurrer to the plea was overruled, and the State resting, judgment was entered discharging the defendant. The State prosecutes this appeal.
It is evident from the record relied upon by the Appellee to sustain his plea that the charge against him has not been finally disposed of. By agreement, as the record shows, the judgment was held in abeyance by the Court and was made contingent upon a future event. The right to postpone a rendition of judgment to another time after a trial and verdict by jury is recognized by Statute [Mans. Rev. Sts., Sec. 2296,) and in a case like this wheré the only punishment that can be inflicted is a fine, the Court may set aside the verdict and again put the Defendant upon trial. Taylor v. State, 36 Ark., 84.
It cannot be claimed that the record in this case puts the Defendant in any better attitude than a favorable verdict from a jury would have done.
In cases where a former jeopardy may be pleaded in bar of a second prosecution for the same offense, a record which shows that jeopardy has once attached is sufficient to operate as abad A judgment is not indispensable for that purpose. 1 Bish. Cr. Pr., Sec. 815. A verdict is in such cases sufficient. It may be that no more is required in any case; but where the Defendant may be twice put upon trial for the same offense, a record which affirmatively shows that he has not in fact been acquitted or convicted, is not a bar to a further prosecution. It is necessary to show that the case is ended.
The order relied upon here partakes more of an agreement of record than of a judicial determination. It was made by consent and was for the benefit of all parties concerned. Its plain interpretation is to make the Wade case a test of this and the others embraced in its terms, and thus save the annoyance and expense of an appeal in each case. The Appellee must stand by the record as a whole. He cannot take the benefit of that which is favorable and discard the rest; and we cannot presume that the order was intended to be more favorable to either party than they have elected to have the record express. The parties have chosen to abide the result of the Wade case in this Court, and until that case has been determined the State could not prosecute the Defendant further, and the Defendant could not demand a judgment of acquittal or discharge under the order. Upon a showing by the Defendant that there has been a decision in the Wade case favorable to him, it would be the duty of the Court to enter a judgment of acquittal on the agreed verdict. If the decision was for the State, the Court should set aside the verdict, so-called, upon the application of the prosecuting attorney, and try the case. Neither party can claim an advantage by reason of the order, without showing a disposition of the Wade case in his favor. The Appellee did not undertake in his plea to do this, but claimed that the order proprio vigore discharged him. It did not have that effect.
It is in the interest of fair dealing, as well as of the speedy and cheap administration of justice, that such' agreements be rigidly adhered to by the parties and enforced by the courts. The Circuit Court erred in overruling the demurrer. Let the judgment be reversed and the case remanded, with instructions to overrule the demurrer and proceed as here indicated. | [
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Smith, J.
The bill charges that James Purcellydied in the year 1859, leaving a will, which was admitted to probate, and six children, to whom he bequeathed the residue of his estate alter the payment of debts and certain specific legacies; that the testator named no executor, wherefore the probate court granted administration with the will annexed to his widow and William A. Carter; that these trustees took charge of the personal property, of the value of $4000, and sold it out under the orders of the probate court and in pursuance of directions contained in said will; that various proceedings were had in the administration of said estate, including the filing by the administrators of their first annual account and the distribution of $1800 among the residuary legatees, but the papers and records pertaining to these matters had been destroyed during the late war; that in 1868 letters de bonis non were issued to the same parties—in effect, a continuation of the first administration ; that they proceeded • to file an inventory of such personal assets of the testator as remained unadministered, and included therein -a promissory note made by said Carter to his co-administrator for $725, payable January 13, 1861, the consideration of which was money that Carter had received in payment for one of the negro slaves of the testator, and had been permitted to retain; that when the administrators came to file their annual accounts in 1870 and 1871, which were approved by the probate court, they charged themselves with the principal of said note, but fraudulently omitted to account for the accumulated interest thereon; that Mrs. Purcelly had never actively participated in the management of the estate, but had left the business to her co-administrator, and she had died before final settlement; that in 1872 Carter filed his final ac count, which was also confirmed and himself discharged, and fraudulently procured a credit therein for his said note as a worthless claim.
The bill was exhibited by four of the original legatees and the heir of a deceased .legatee, against the administrator, widow and heirs of Carter. And the prayer was to set aside the settlements for fraud, to have the accounts restated, and to obtain a decree for such amount as would be due by Carter upon a corrected settlement. Carter had died in 1876, and administration was granted upon his estate in February, 1877. The bill was filed July 16, 1878, and was supported by a sufficient affidavit of the frauds complained of {Mansfield’s Digest, Sec. 128), but there was no affidavit made, then or afterwards, of the justness and non-payment of the plaintiff’s demand, such as Section 102 of Mansfield’s Digest requires for the authentication of every claim against the estate of a decedent.
The bill was dismissed upon demurrer.
The plaintiff, James S. Purcelly, who claims to be sole heir of one of the legatees under the will, could not maintain this suit. When a legatee dies after the death of the testator, his personal representative is alone entitled to collect the legacy, not his distributees. Atkins v. Guice, 21 Ark., 164; Whelan v. Edwards, 31 Id., 723, and cases cited; Collins v. Warner, 32 Id., 87.
. No cause of action is shown against the widow and heirs of Carter. It is not alleged that any assets have descended to them from Carter, and they are not liable personally for his debts or for his waste or conversion of the trust estate beyond what they have received from him. Williams v. Ewing, 31 Ark., 229.
As between the legatees of James Purcelly and the administrator of Carter, the bill makes out a prima facie case of fraudulent conduct, within the doctrine of Ringold v. Stone, 20 Ark., 526; and Hanf v. Whittington, 42 Id., 491. But the primary object of the bill is to establish a claim against Carter’s estate; the reformation of his settlement accounts being only a means to that end. Now, Carter, was, in his lifetime, a trustee for these legatees; but upon his death he ceased to be such, and his indebtedness to the trust became a demand against his estate, to be authenticated, allowed, classed and paid, like any other demand. Halliburton v. Fletcher, 22 Ark., 453; Hill v. State, 23 Id., 604; Patterson v. McCann, 39 Id., 577.
The bill was filed within two years after administration was taken upon Carter’s estate; but no authenticating affidavit has been made to this day. Consequently the plaintiffs are, and were at the date their bill was dismissed, barred of all relief against Carter’s estate by the statute, of non-claim.
A demurrer, is, perhaps, not the appropriate method of taking advantage of the defect. Sec. 107 of Mansfield's Digest directs a motion for a non-suit; or the objection may be set up in the answer. But as one of the special causes of demurrer assigned the non-authentication and non-exhibition of the claim within two years after administration was granted upon Carter’s estate, no injustice can result in treating the demurrer as a motion to dismiss.
The only remedy the plaintiffs now have is against the sureties on the administration bond of Carter. But to proceed effectually against them, they must first have these settlement accounts corrected and re-stated; and to such a suit Carter’s administrator is probably an indispensable party. The decree below will, therefore, be modified to this extent: That the dismissal be without prejudice to the right of the plaintiffs to exhibit another bill, if they shall be so advised, against the proper parties, to impeach the correctness of Carter’s accounts with a view to charge his sureties. | [
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Smith, J.
These were indictments for sales of ardent liquors without license in Ashley county, the dates of the several sales being alleged to be subsequent to March 26, 1883. The Defendants pleaded that the sales were made within three miles of a certain church, after the County Court had made a prohibitory order, putting in force the local option law within that area. The State replied that the indictments were preferred under the act of March 26, 1883, which provides that vendors of liquors without license, in local option districts, may be prosecuted for a violation either of the license act or the local option law. The Circuit Court sustained the plea, dismissed the indictments and discharged the Defendants.
There is no such thing in our criminal practice as a reply to a plea. But the Court below seems to have treated it as a demurrer, the State resting when the plea was adjudged to be good.
It was wholly immaterial whether or not the three-mile law was in operation in the district where the sales were made. The offense with which the Defendants were charged was selling liquors without having first procured a license. And this they could not do in any part of the county without subjecting themselves to the penalties of the law; the only difference being, that in prohibition districts a license could not be had at all. Chew v. State, 43 Ark., 361.
Reversed and remanded with directions to adjudge the pleas in the several cases insufficient in law, as upon demurrer. | [
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Cockrill, C. T.
The contract between the passenger and the railway company upon which a ticket without qualification is issued, is by implication to the effect that the company will perform its whole duty as a carrier. Among these duties is that of furnishing the passenger the usual and reasonable accommodations for his comfort to the destination named in his ticket. This includes not only sufficient room, but also a seat in the usual mode of conveyance. Hutchinson on Car., Sec. 609; Thomps. on Car., p. 67; 2 Rorer on R. R., pp. 968-9.
The holder of the ticket agrees that he will conform to the reasonable rules and regulations of the company, and among others, that he will surrender his ticket to the company’s agent on demand after embarking on his journey under it. The conditions of this contract are not subject to division, so as to apportion the component parts. It is not within the power of either party to sever the terms of the contract, and demand a performance of the whole, while he, himself, complies with a part only. The carrier cannot claim a surrender of the ticket upon a proffer by it of transportation alone, because the contract calls for transportation in a seat. The pasj senger cannot avail himself of the benefit of the transportation offered him under his contract, and at the same time withhold from the carrier the effective evidence of the payment of his fare, i. e., the ticket. If he desires to repudiate the contract on his part, he must do so in toto. He cannot appropriate its benefits and get rid of its burdens. 1 Whart. Cont., Secs. 233, 552.
When the carrier proffers transportation without a seat, and the passenger refuses to surrender his ticket, what is then the attitude of the parties under the contract ? It is simply this : The carrier has offered the passenger less than his contract calls for and the passenger has refused it in satisfaction. This he has the unquestioned right to do. If he is not accommodated in a manner which may be deemed a fair compliance with the duty of the carrier, he may decline any compromise and resort to his action against the company for refusing to carry him as their contract or their duty requires. But lie cannot accept the part that is offered him in lieu of the whole —that is the transportation without the seat—and at the same time refuse to comply with his own undertakings, in this any more than in another contract. Upon the carrier’s neglect or refusal to comply with the terms of the contract of carriage, without a just excuse, the passenger is at liberty to treat the contract as violated by the company, and he may leave the train and sue for a breach of the contract.
It is not necessary to enter upon the determination, in this case, of the question whether he may not remain upon the train on compliance with the reasonable regulations of the company, without waiving his right to recover damages, under the contract, for the inconvenience of riding without a seat. However that may be, if he chooses to accept passage without a seat he must pay the fare for it. 2 Redf. R’y, p. 257 (See VII, Sec. 198;) Benj. on Sales, Sec. 690. If he goes on the train expecting to receive the accommodation he has contracted for, and is put off because he declines to deliver his ticket or pay fare without receiving the full measure of what he is entitled to under his contract, he may maintain his action upon the contract and recover any damages that are the proximate result of its breach, just as though he had disembarked of his own will. But if he is ejected without unnecessary force or violence because of his refusal to pay for his ride, the carrier has done nothing more than it has the legal right to do, and no recovery can be had for the ejection. Davis v. Railroad, 53 Mo., 317; Thompson on Car., p. 67; 2 Rorer Railroad, pp.. 968-9; Redf. R’y, sup.
The case was tried in the circuit court solely as an action of tort, and the recovery was had upon the theory that the appellant had been unlawfully expelled from the train, the court instructing the jury that the company could not lawfully expel him if they “ knowingly received him as a passenger, and then failed to furnish him a seat.” This, as we have seen, was error.
The judgment must be reversed and the cause remanded for a new trial. | [
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Frank Holt, Justice.
Appellant Hartman and three others, Emerson, Roberts, and Whitehead, were convicted by the court, sitting as a jury, of possession of marijuana with intent to deliver. Ark. Stat. Ann. § 82-2617 (Supp. 1973). They were sentenced to five years imprisonment in the Arkansas Department of Correction. Appellant’s sole point for reversal is that the evidence is insufficient to support the verdict as to Hartman’s participation. We cannot agree when we consider the evidence, which is substantial, in the light most favorable to the appellee as we must do on appeal. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975).
Undercover agents testified they made a deal with Roberts to purchase twenty pounds of marijuana. Roberts advised them that he could make delivery at a certain time and at a designated location. The two agents picked Roberts up at his home and proceeded to this site where Emerson and Hartman arrived in a car driven by Emerson. The officers refused Emerson’s request to go somewhere else to get the marijuana. Thereupon, Emerson and Hartman left with Emerson driving and advising “they” would be back. They returned a short time later in another car, driven by Emerson, with Hartman in the front seat and Whitehead sitting in the back seat. The occupants then got out of the car. Emerson and Hartman went to the trunk of the car where they “looked into” and “fooled around with the trunk.” Emerson removed a box from his car trunk and put it onto his car seat where it was examined by the officer and then transferred by Emerson to the undercover agent’s car. Thereupon, the officers arrested the appellant and his codefendants. There was no money exchanged during the transaction. There was no testimony that the defendant Hartman talked to the officers, drove either of the cars involved, or transferred the marijuana from one car to the other.
The distinction between accessories and principals has been abolished in all criminal cases and accessories are punished as principals. Ark. Stat. Ann. § 41-118 (Repl. 1964). Murrah v. State, 253 Ark. 432, 486 S.W. 2d 897 (1972). In the case at bar, the evidence is amply sufficient from which the trial court, the trier of the facts, could reasonably infer that the appellant, being present on two occasions, was an active participant in the alleged offense.
Affirmed. | [
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