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Jim Hannah, Chief Justice.
This case involves the validity of an alleged arbitration agreement between appellant Betsy Danner and appellee MBNA America Bank, N.A. Danner appeals an order granting summary judgment and confirming an arbitration award in favor of MBNA. We reverse and remand to the circuit court.
The record reveals that a dispute arose between the parties concerning the non-payment of charges on an MBNA credit card issued to Danner. MBNA alleges that after Danner agreed to its original credit-card agreement, an amendment to the agreement was mailed to Danner requiring her to arbitrate any future dispute. The relevant language of the amendment is as follows:
As provided in your Credit Card Agreement and under Delaware law, we are amending the Credit Card Agreement to include an Arbitration Section. Please read it carefully because it will affect your right to go to court, including any right you may have to have a jury trial. Instead, you (and we) will have to arbitrate claims. You may choose not to be subject to this Arbitration Section by following the instructions at the end of this notice. This Arbitration Section will become effective on February 1, 2000. This Arbitration Section reads:
Arbitration: Any claim or dispute (“Claim”) by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or any prior Agreement or your account (whether under a statute, in contract, tort, or otherwise and whether for money damages, penalties or declaratory or equitable relief), including Claims regarding the applicability of this Arbitration Section or the validity of the entire Agreement or any prior Agreement, shall be resolved by binding arbitration.
The arbitration shall be conducted by the National Arbitration Forum (“NAF”), under the Code of Procedure in effect at the time the claim is filed. . . . Any arbitration hearing at which you appear will take place within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”). Judgment upon any arbitration award may be entered in any court having jurisdiction. . . .
THE RESULT OF THIS ARBITRATION SECTION IS THAT, EXCEPT AS PROVIDED ABOVE, CLAIMS CANNOT BE LITIGATED IN COURT, INCLUDING SOME CLAIMS THAT COULD HAVE BEEN TRIED BEFORE A JURY, AS CLASS ACTIONS OR AS PRIVATE ATTORNEY GENERAL ACTIONS.
If you do not wish your account to be subject to this Arbitration Section, you must write to us at MBNA America, P. O. Box 15565, Wilmington, DE 19850. Clearly print or type your name and credit card account number and state that you reject this Arbitration Section. You must give notice in writing; it is not sufficient to telephone us. Send this notice only to the address in this paragraph: do not send it with a payment. We must receive your letter at the above address byJanuary 25, 2000 or your rejection of the Arbitration Section will not be effective.
After a dispute over payment arose, MBNA submitted a claim to arbitration, and on August 31, 2005, the arbitrator rendered an award in favor of MBNA in the amount of $6,198.13. On December 13, 2005, MBNA filed a petition with the circuit court seeking to confirm the award. MBNA noted that under the FAA, the time period for Danner to challenge the arbitration award had passed. Danner responded, alleging that she had never entered into an arbitration agreement with MBNA, that she did not participate in the arbitration, and that she had never waived her due-process rights with respect to any disputes related to any business or other relationship that may have existed between the parties. MBNA then filed a motion for summary judgment, stating that based on the petition and Danner’s response, the circuit court should conclude that the arbitration award was proper. The circuit court granted MBNA’s motion and confirmed the award.
On appeal, Danner argues that the circuit court erred in confirming the arbitration award because no valid arbitration agreement existed. MBNA contends that the circuit court did not err in granting summary judgment and confirming the arbitration award because Danner did not timely challenge the award. The standard of review when summary judgment has been granted is well settled:
“Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law.” Wallace v. Broyles, 331 Ark. 58, 66, 332 Ark. 189, 961 S.W.2d 712 (1998) (Wallace I) (citing Pugh v. Griggs, 327 Ark. 577, [940 S.W.2d 445 (1997)]). The standard is whether the evidence is sufficient to raise a fact issue, not whether the evidence is sufficient to compel a conclusion. Id. (citing Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995)). A fact issue exists, even if the facts are not in dispute, if the facts “may result in differing conclusions as to whether the moving party is entided to judgment as a matter of law. . . . [I]n such an instance, summary judgment is inappropriate.” Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (supplemental opinion denying rehearing) (Wallace II).
On review, this court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. Wallace I, supra. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Wallace I, supra. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id. (citing Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997)).
Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 231, 33 S.W.3d 128, 133 (2000).
It should first be noted that the Federal Arbitration Act (FAA), not the Arkansas Uniform Arbitration Act, applies in the instant case because the transaction involves interstate commerce. See Walton v. Lewis, 337 Ark. 45, 49, 987 S.W.2d 262, 265 (1999). The relevant provisions of the FAA are as follows:
§ 2. Validity, irrevocability, and enforcement of agreements to arbitrate
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2 (2000).
§ 12. Notice of motions to vacate or modify; service; stay of proceedings
Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresident then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court. For the purposes of the motion any judge who might make an order to stay the proceedings in an action brought in the same court may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.
9 U.S.C. § 12 (2000) (emphasis added).
In this case, the arbitrator’s award was issued on August 31, 2005. The certificate of service on the face of the award indicates that the award was mailed to the parties the same day. Danner did not challenge the award until MBNA sought confirmation, which as Danner admits, was 104 days following issuance of the award. Pursuant to 9 U.S.C. § 12, Danner had three months after the award was filed or delivered to challenge the award. MBNA states that even allowing a week for delivery by the postal service, the time limit for bringing a challenge had already expired on January 10, 2006, the day Danner filed her response to MBNA’s petition to confirm the award. Thus, MBNA maintains that Danner is time-barred from bringing a challenge. For her part, Danner contends that she was not required to file a petition to set aside the arbitration award within three months of the filing or delivery of the award because she disputes entering into an arbitration agreement, she did not participate in the arbitration, and MBNA failed to provide proof that she had actually received notice of the award. In support of this proposition, Danner cites MCI Telecommunications Corp. v. Exalon Industries, Inc., 138 F.3d 426 (1st Cir. 1998). In that case, MCI brought an action to enforce an arbitration award against Exalon, a former customer. Id. at 428. An arbitrator was appointed and a hearing was scheduled for July 10, 1995. Id. Exalon failed to respond to the notice, and on August 29,1995, the arbitrator rendered an award in favor of MCI in the amount of $83,233.24. Id. Exalon contended that no written agreement existed between the parties binding them to arbitrate the controversy. Id. Exalon thus claimed the arbitration award was invalid and unenforceable. Id.
The arbitration provisions were included in a tariff regulation filed by MCI with the Federal Communications Commission. Id. at 427-28. MCI contended that Exalon was bound by the mandatory arbitration provisions of the tariff, which was in writing and of which, it was argued, Exalon was presumed by law to have knowledge. Id. at 428. MCI argued that, because Exalon failed to participate in the arbitration proceedings, Exalon was bound by the award entered against it. Id. Citing title 9, section 12, of the FAA, MCI also argued that, in any case, Exalon’s failure to challenge the award within three months after it was filed or rendered barred it from contesting its validity before the district court. Id. The United States Court of Appeals for the First Circuit disagreed, holding that “the time limits provided by section 12 for the vacation, modification, or correction of an award do not prevent a party who did not participate in an arbitration proceeding from challenging the validity of the award at the time of its enforcement on the basis that no written agreement to arbitrate existed between the parties.” MCI, 138 F.3d at 431 (footnote omitted). The court explained:
We find no indication that Congress intended for a party to be found to have waived the argument that there was no written agreement to arbitrate if that party failed to raise the argument within the time period established by section 12. To the contrary, a different conclusion would be inconsistent with the most natural reading of section 4 of the FAA. Section 4 of the FAA provides, in pertinent part:
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any . . . district court... for an order directing that such arbitration proceed in the manner provided for in such agreement.
9 U.S.C. § 4. Upon receipt of such a petition, the district court determines whether there was an agreement to arbitrate. If the existence of the agreement is not in issue, the court must proceed forthwith to “make an order directing the parties to proceed to arbitration.” In contrast, “[i]f the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.” MCI’s position is that a party “aggrieved by the failure ... of another to arbitrate” may initiate arbitration on its own and prevail by default, rather than first seeking an order under section 4. But the focus of section 4 is on the party seeking arbitration, who must affirmatively petition for a court order enforcing the agreement. It is unlikely that Congress intended to allow the provisions of section 4 to be bypassed so easily.
We thus conclude that, as a general matter, section 12, as well as section 2 and the other enforcement provisions of the FAA, do not come into play unless there is a written agreement to arbitrate. Thus, if there is no such agreement, the actions of the arbitrator have no legal validity. It follows that one is not required to mount a collateral challenge to such an ineffectual action, for if the agreement to arbitrate does not exist, there is no obligation to arbitrate — and a noncontracting person’s failure to appear at the arbitration hearing does not create such an obligation.
A party that contends that it is not bound by an agreement to arbitrate can therefore simply abstain from participation in the proceedings, and raise the inexistence of a written contractual agreement to arbitrate as a defense to a proceeding seeking confirmation of the arbitration award, without the hmitations contained in section 12, which are only applicable to those bound by a written agreement to arbitrate. Of course, if a court later determines that an arbitration agreement was in effect, and that the non-appearing party was bound by its conditions, the FAA would then fully come into operation, including the time limitations of section 12.
Id. at 430.
While decisions of the federal circuit courts are not binding on this court, we find the First Circuit’s interpretation of the FAA to be highly persuasive. We agree with the MCI court’s conclusion that the time limit imposed by 9 U.S.C. § 12 is not triggered unless there is a written agreement to arbitrate. In this case, there is a fact issue as to whether such an agreement existed between Danner and MBNA. Accordingly, we hold that the circuit court erred in granting summary judgment in favor of MBNA. We reverse and remand this case to the circuit court to determine whether a written agreement to arbitrate existed between Danner and MBNA.
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Jim Hannah, Chief Justice.
Appellants Vimy Ridge Municipal Water Improvement District 139 and The Bank of New York Trust Company, N.A. (collectively referred to as Vimy Ridge) appeal the order of the Pulaski County Circuit Court granting summary judgment in favor of appellees J.A. Ryles; Rylwell LLC; John Ryles; Whitwell Inc.; and Mark Wilcox, Land Commissioner (collectively referred to as the Ryles appellees). Vimy Ridge argues that the circuit court erred in concluding that the special taxes of the district became delinquent on June 1 and granting the Ryles appellees’ motion for summary judgment as a matter of law.
Vimy Ridge filed a complaint for foreclosure against several defendants, including the Ryles appellees, on October 1, 2004, claiming that the assessments (tax, penalty, and costs), in the form of municipal improvement district taxes, were delinquent for certain parcels of land located within the district. The complaint sought payment of the delinquent taxes for the tax years 2001, 2002, and 2003.
Vimy Ridge filed separate motions for summary judgments against J.A. Ryles, Rylwell, Whitwell, and John Ryles. The Ryles appellees answered and also filed motions for summary judgment, admitting that special taxes were delinquent for tax years 2001, 2002, and 2003. They paid the 2002 and 2003 delinquent special taxes and asserted that Vimy Ridge’s complaint for foreclosure as to the 2001 delinquent special taxes was barred by the three-year statute of limitations.
The circuit court held a hearing on the summary-judgment motion on February 7, 2006, and granted the Ryles appellees’ motion for summary judgment and dismissed with prejudice “any and all other claims, cross-claims, or counter claims.” In addition, the circuit court concluded that the Land Commissioner’s “interest is not affected by this proceeding.”
While final judgment as to the Ryles appellees is clear, the original complaint listed several defendants. Upon review of the record, we note that the record is silent with respect to any disposition as to G.P. Ryles, Guy Maris, John Doe(s), and Jane Doe(s).
Rule 54(b) of the Arkansas Rules of Civil Procedure provides in pertinent part:
[A]ny judgment, order, or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Ark. R. Civ. P. 54(b)(2) (2006).
We have made it clear that the failure to comply with Rule 54(b) and adjudicate all claims against all parties is jurisdictional and renders the matter not final for purposes of appeal. See Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998). A summary-judgment order is not a final, appealable order where the order does not dispose of the complaints against all of the defendants. See id. Further, we have specifically held that where John Doe claims have not been determined, dismissal on the basis of Rule 54(b) is appropriate. See Roe v. Ark. Dep’t of Correction, 367 Ark. 348, 240 S.W.3d 127 (2006). Here, we are barred from considering this appeal under Rule 54(b) due to the lack of a final order since the claims against G.P. Ryles, Guy Maris, John Doe(s) and Jane Doe(s) may remain viable.
In addition to the Rule 54(b) problem, we note that Vimy Ridge has failed to abstract the February 7, 2006 hearing before the circuit court on the summary-judgment motion. Vimy Ridge explains in its abstractors’ notes that it did not abstract the hearing because there are no colloquies between the circuit court and counsel as are necessary to an understanding of the questions presented on appeal. We disagree. Accordingly, in any future appeal of this matter, the abstract should include the summary-judgment hearing, pursuant to Rule 4-2(a)(5) and (b)(3).
Dismissed without prejudice. | [
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Donald L. Corbin, Justice.
Appellant Southern Farm Bureau Casualty Insurance Company (Farm Bureau) appeals the order of the Benton County Circuit Court granting summary judgment in favor of Appellees Roy Johnson, Rhonda Johnson, and Ronald Andrew Taylor, and finding that Farm Bureau owed a duty to defend and pay any and all judgments rendered against its insured, Appellee Terry Easter. On appeal, Farm Bureau raises one argument for reversal: the trial court erred in finding that the “eluding lawful apprehension or arrest” exclusion contained in Farm Bureau’s auto mobile policy is void as against public policy. As this is the second appeal in this case, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(7). We dismiss the appeal for lack of a final order.
A detailed description of the underlying facts of this case is included in the prior appeal, Southern Farm Bureau Casualty Insurance Co. v. Easter, 345 Ark. 273, 45 S.W.3d 380 (2001) (Easter I). In Easter I, we held:
The order granting summary judgment must be reversed because there remain genuine issues of material fact relating to each of the exclusionary clauses, and, consequently, until such issues are resolved, we cannot decide the validity of the two exclusionary clauses under the public policy consideration of requiring liability insurance for the benefit of the public, as well as for the benefit of the named insured.
Id. at 279, 45 S.W.3d at 384. Following our ruling, on June 25, 2002, Farm Bureau filed an amended complaint for declaratory judgment seeking a declaration that it did not owe (1) a duty to pay, nor a duty to defend, the separate actions brought by the Johnsons and Taylor against Easter; and (2) a duty to Easter to pay any punitive damages, in either case, because the insurance policy validly excludes payments for punitive or exemplary damages.
In response to Farm Bureau’s amended complaint, on July 11, 2002, the Johnsons filed an answer and asserted a counterclaim against Farm Bureau. In this counterclaim, the Johnsons argued that Farm Bureau, pursuant to the insurance policy issued to Easter, was required to pay medical expenses and disability income benefits to the Johnsons.
In 2003, a multitude of motions were filed by Farm Bureau, the Johnsons, and Taylor, including Farm Bureau’s motion to dismiss the counterclaim and the Johnsons’ motion to strike Farm Bureau’s answer to the counterclaim. On September 9, 2004, the trial court held a hearing on all pending motions. In its November 12, 2004, order, the trial court, inter alia, denied both the Johnsons’ motion to strike Farm Bureau’s answer and Farm Bureau’s motion to dismiss the counterclaim. This order also set a jury trial to determine the issue of whether Easter was fleeing or eluding apprehension at the time of the accident.
On November 17, 2005, a jury trial was held and the jury returned a verdict finding that Easter was seeking to elude lawful apprehension or arrest by a law enforcement official at the time of the accident. This verdict was entered into record by the trial court on January 4, 2006.
On March 9, 2006, the trial court conducted a hearing on Farm Bureau’s, the Johnsons’, and Taylor’s renewed motions for summary judgment. After the hearing, on May 4, 2006, the trial court entered an order granting the Johnsons’ and Taylor’s separate motions for summary judgment, finding that Farm Bureau owed a duty to defend and pay any and all judgments rendered against Easter, up to the limit of liability and no-fault coverages dealing with injuries incurred by Taylor and the Johnsons as a result of the automobile accident on November 12, 1998: In reaching this conclusion, the trial court found that the eluding-apprehension exclusion within Farm Bureau’s insurance policy violates public policy as codified in the mandatory liability insurance and no-fault provisions of Arkansas law. Additionally, the trial court dismissed without prejudice Farm Bureau’s claim concerning the validity of the punitive damages exclusion within the policy of insurance issued to Easter because the issue was not yet ripe for determination. No order was ever entered with regard to the cause of action brought by the Johnsons in their counterclaim against Farm Bureau.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure - Civil provides that an appeal may be taken only from a final judgment or decree entered by the trial court. Rule 54(b) of the Arkansas Rules of Civil Procedure deals with the finality of orders in connection with judgments upon multiple claims or involving multiple parties and states in relevant part:
(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a. claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry ofjudgment....
(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than ail the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
Thus, our court has held that under Rule 54(b), an order is not final that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. See Sims v. Fletcher, 368 Ark. 178, 243 S.W.3d 863 (2006); Seay v. C.A.R. Transp. Brokerage Co., 366 Ark. 527, 237 S.W.3d 48 (2006). More specifically, this court has held that an order that fails to address a counterclaim is not a final, appealable order. See Sims, 368 Ark. 178, 243 S.W.3d 863.
Here, a review of the record reveals that the trial court never ruled upon the Johnsons’ counterclaim. Accordingly, we are barred from considering this appeal under Rule 54(b) due to the lack of a final order, and we dismiss the present appeal without prejudice.
Dismissed without prejudice.
Although this issue was not raised by either party, the question of whether an order is final and appealable is a jurisdictional question that we will raise on our own. See Seay, 366 Ark. 527, 237 S.W.3d 48. | [
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Jim Hannah, Chief Justice.
James Dilday appeals a June 5, 2006 order of the Pulaski County Circuit Court denying his motion to dismiss criminal charges. Dilday asserts that the criminal action against him is barred by double jeopardy, res judicata, and collateral estoppel. We affirm the circuit court. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(3).
Facts
This case concerns allegations that Dilday defrauded the State of Arkansas by making false Medicaid claims for services he rendered as a psychiatrist. He is also accused of failing to keep records of Medicaid claims as required by law. Dilday was previ ously prosecuted for defrauding insurance companies and one self-insured employer by making false claims for services he rendered as a psychiatrist. That prosecution resulted in a dismissal for Dilday and a plea of no contest by Biological Psychiatry, P.A., an entity thought then to be Dilday’s business, but which Dilday now asserts never existed.
Dilday argues that the dismissal in the prior prosecution constitutes a finding that he did not commit fraud in making claims for services rendered. He for the first time now asserts that the finding acts as a bar to the present prosecution on alleged Medicaid fraud.
Interlocutory Appeal
This is an interlocutory appeal. This court has long recognized the right to an immediate appeal from the denial of a motion to dismiss on double-jeopardy grounds. See, e.g., Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006); Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959). This court has also allowed the right to an immediate appeal from the denial of a motion to dismiss based on res judicata. Winkle, supra; Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990).
Bar to Prosecution
A. Claim Preclusion
Dilday distinguishes between res judicata and collateral estoppel. Res judicata has two facets, one being issue preclusion, or collateral estoppel, and the other being claim preclusion. Mason v. State, 361 Ark. 357, 206 S.W.3d 869 (2003). The term res judicata has sometimes been used to refer only to claim preclusion; however, res judicata encompasses both issue and claim-preclusion. Id.
Under claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action. Id. Res judicata bars not only the relitigation of claims that were actually litigated in the first suit but also those that could have been litigated. Jayel Corp. v. Cochran, 366 Ark. 175, 234 S.W.3d 278 (2006). Dilday argues that the State was obligated to charge him for all acts of fraud in the first prosecution. This assertion is apparently based on the idea that the State should charge a criminal defendant in one case with all possible charges arising from one single episode. Crook v. State, 290 Ark. 163, 717 S.W.2d 803 (1986). In this regard, Ark. R. Crim. P. 21.3(c) provides as follows:
(c) A defendant who has been tried for one (1) offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in subsection (b). The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.
The charges arise from two separate allegations of fraud, one against insurance companies and a self-insured employer, and the second against the state Medicaid program. Thus, it is not a single episode or single act of conduct, and the rule does not apply to Dilday. In any event, this rule is based on double jeopardy, not claim preclusion. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986).
As to res judicata, four elements must be met: (1) the first suit must have resulted in a final judgment on the merits, (2) the first suit must be based on proper jurisdiction, (3) both suits must involve the same cause of action, and (4) both suits must involve the same parties or their privies. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). The criminal charges in the prior prosecution were for making false insurance claims in violation of Ark. Code Ann. § 5-36-103 (Supp. 2001) and Ark. Code Ann. § 23-66-502 (Supp. 2001). In the present case, Dilday is charged under an entirely different statute, Ark. Code Ann. § 5-55-103 (Repl. 2005) and is accused of making false Medicaid claims. Again, both the crimes alleged and the victims of the crimes in this case are not the same as the previous prosecution. There is no merit to Dilday’s assertion that the claim in the present case is the same as the claim in the previous prosecution.
B. Issue Preclusion
Dilday also asserts that collateral estoppel, or issue preclusion, bars this prosecution. Under issue preclusion, a decision by a court of competent jurisdiction on matters that were at issue, and that were directly and necessarily adjudicated, bars any further litigation on those issues. Mason, supra. Dilday argues that the dismissal of the fraud charged in the previous prosecution decided the issue of whether he committed fraud in making claims for services in the present prosecution. Thus, he argues that the State is attempting to relitigate whether he committed fraud in his Medicaid claims. Dilday cites us to Ashe v. Swenson, 397 U.S. 436 (1970); however, the issue in Ashe was whether a criminal defendant who was acquitted of robbing one member of a poker party could later be prosecuted for robbing another member of that same poker party. In Ashe, the acquittal necessarily adjudicated that the criminal defendant was not present at the poker party, so he could not be charged with robbing another member of the party. In the present case, Dilday could certainly have committed fraud in his Medicaid claims even if there were a finding that he did not commit fraud in his insurance claims.
Dilday also relies on Ark. Code Ann. § 5-1-113(2) (Kepi. 2006), which precludes subsequent prosecution for a different offense; however, this affirmative defense is available only where the offense should have been included in the first prosecution, or where the offense is based on the same conduct. As already noted, the two criminal actions concern separate allegations of fraud under different statutes. The offenses are not based on the same conduct. Issue preclusion is not applicable.
C. Double Jeopardy
Double jeopardy protects criminal defendants from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). Dilday cites us to Blockburger v. United States, 284 U.S. 299 (1932). In State v. Thompson, 343 Ark. 135, 142, 34 S.W.3d 33, 37 (2000), this court discussed the Blockburger decision:
The same-elements test, commonly referred to as the “Blockburger” test, is as follows:
[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: “A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”
Blockburger, 284 U.S. at 304. The Supreme Court reaffirmed the Blockburger analysis in United States v. Dixon, [509 U.S. 688 (1993)], therein denouncing the “same conduct” test. The Court stated in Dixon:
The collateral estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436 (1970), may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts. But this does not establish that the government “must... bring its prosecutions ... together.” It is entirely free to bring them separately, and can win convictions in both.
Dixon, 509 U.S. at 705.
Dilday is accused of different offenses in the present prosecution than in the prior prosecution. He is not being prosecuted for the same offense nor being threatened with punishment for a prior offense for which he had already been punished. Under the Blockburger test, double jeopardy does not apply. There is no merit to Dilday’s claim under double jeopardy.
Affirmed. | [
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Per Curiam.
Appellant Christopher Charles Yarbrough was convicted by a jury of possession of marijuana with intent to deliver and possession of drug paraphernalia, for which he received concurrent sentences of sixty months and thirty-six months, respectively, in the Arkansas Department of Correction. On appeal, Yarbrough argued that his right to speedy trial was violated and that the circuit court erred in denying his motion to suppress physical evidence seized during a traffic stop. In an unpublished opinion, the Arkansas Court of Appeals reversed and dismissed Yarbrough’s convictions on the ground that his right to speedy trial was violated. Yarbrough v. State, CACR05-1296, slip op. at 1 (Ark. App. Dec. 13, 2006). The State then petitioned this Court for review, contending that the decision of the Court of Appeals is in conflict with prior case law, and is therefore in error. We granted the State’s petition for review pursuant to Ark. Sup. Ct. R. l-2(e) (2006).
As an initial matter, we cannot reach the merits of the case because Yarbrough’s brief is not in compliance with Ark. Sup. Ct. R. 4-2(b)(3) (2006). Rule 4-2(b)(3) provides:
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum[,] and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Simons v. Marshall, 369 Ark. 184, 251 S.W.3d 303 (2007).
In the instant case, there are two problems with the briefing. First, as to Yarbrough’s point on appeal involving the motion to suppress, a copy of the motion is not included in the addendum. Second, Yarbrough’s abstract of the suppression hearing on July 11, 2005, does not contain the arguments made by counsel at the hearing. The reason for our rule is one of practicality in that there is only one transcript to be spread among seven members of the court. See Murders v. Garland County, 332 Ark. 659, 966 S.W.2d 900 (1998). It is impossible for each of the seven judges to examine the one transcript. Id.
Accordingly, we order Yarbrough to submit a substituted brief that contains an abstract and addendum in compliance with our rules. Yarbrough is provided fifteen days from the date of this opinion in which to file a substituted brief, abstract, and addendum to cure the deficiencies, at his own expense, in compliance with Rule 4-2 (b)(3). In the event that Yarbrough fails to file a complying brief within the requisite time period, the judgment may be affirmed for noncompliance with the rule. Ark. Sup. Ct. R. 4-2 (b)(3).
Rebriefing ordered. | [
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Paul E. Danielson, Justice.
The appellant, the State of Arkansas, appeals from the circuit court’s order granting the motion to suppress of the appellee, Rayburn Ted Jones. The State’s sole point on appeal is that, because there was only an insubstantial violation that tainted the affidavit for the search warrant at issue, the circuit court erred in granting the motion to suppress. Because we hold that this is an improper state appeal, we dismiss the appeal.
The underlying facts are these. On December 2, 2004, Mary Alexander, a Wal-Mart employee, witnessed an individual, whom she later identified as Jones, purchase the following items: twelve cartons of match books, iodine, a shop light, two other lights, and windshield washer. After Jones checked out with those items, Alexander saw him in the sporting goods department with a shopping cart holding propane canisters. She then saw him check out a second time, and a review of the reprinted receipt revealed the following items as having been purchased: acetone, propane, an antifreeze tester, ammunition, match holders, and shotgun shells. Anderson called the police department and, upon the return of her call, relayed the information, including the make and model of the purchaser’s car and its license tag number, which Anderson had obtained from a store manager, to Detective Brian Culpepper, a narcotics detective.
Detective Culpepper ran the license plate, which returned a name, Rayburn Jones, and an address, 8267 Elm Lane. After driving to the house to confirm the address and seeing the vehicle, which was described by Anderson, at the home, Detective Culpepper went to Wal-Mart, obtained copies of the aforementioned receipts, and talked with Anderson. While reviewing the receipts, Detective Culpepper recognized some of the items as those used in the manufacture of methamphetamine. Detective Culpepper then checked the criminal information records for Ray Jones and received a “hit” for Rayburn Ted Jones. After obtaining a picture of Jones, Detective Culpepper took the photo to WalMart, at which time Anderson identified Jones as the person who made the purchases.
After that, Detective Culpepper and Detectives Jesse Ray and Lee Kelly went to Jones’s residence to conduct a “knock and talk.” Jones and another male, Ed Childress, were outside of the home in the yard pulling a boat. After making contact with the two men, the detectives separated them so that they could be spoken to separately.
Detective Culpepper then told Jones that they had received information that he was buying materials to make methamphetamine. Jones gave him permission to search his person and Detective Culpepper conducted a pat-down of Jones. Detective Culpepper then asked Jones for permission to search his residence, which Jones refused.
At that time, Detective Culpepper walked over to Detective Ray, who said that he smelled a methamphetamine lab. Detective Culpepper smelled the same and went to the front of the home to determine whether anyone was inside. While he was doing that, Detective Lee asked Jones if he had any drugs on his person and whether he minded if Detective Lee searched his pockets. According to Detective Lee, Jones responded that he did not care, but that the other officer had already searched him. Detective Lee searched Jones and found a small baggie with methamphetamine residue in his watch pocket. Jones was placed under arrest and the detectives performed a security sweep of the home’s exterior and interior. The detectives then made the decision to obtain a search warrant.
After acquiring the search warrant, the detectives searched the premises and precursors to making methamphetamine were found. Jones was ultimately charged with the use of drug paraphernalia with the intent to manufacture methamphetamine, and he filed a motion to suppress the evidence against him. In it, he stated that upon denying consent to search his residence, the “knock and talk” should have ended. He further asserted that he denied Detective Ray’s request for consent to search his person and that, although the investigation began as a “knock and talk,” it escalated into a seizure of his person, in violation of his Fourth Amendment rights and his rights under article 2, section 15 of the Arkansas Constitution. He claimed that although the police officers had probable cause to obtain a search warrant, no exigent circumstances existed that justified their entry into his home without a warrant to conduct a security sweep and, further, that he never gave them consent to search. For that reason, he claimed, there was no reasonable basis to make a warrantless entry into his home against his rights. He maintained that as a direct result of the illegal seizure of his person and the subsequent warrantless entry into his home, all evidence obtained as a result of those violations should be suppressed as fruit of the poisonous tree, including the baggie located on his person and all items confiscated from his residence. The State responded, and a hearing was held on Jones’s motion on July 7, 2006.
At the hearing, the detectives testified to the events of December 2, 2004, and Jones put on testimony that it was not he that had made the second purchase of items, but another person, Jeffrey Shaw. Shaw testified that it was his receipt and that his debit card was used by him to make the purchases. Ed Childress also testified, stating that he did not hear Jones consent or agree to allow Detective Ray to search him and that he heard him say, “I didn’t give you consent.” He testified that he did not feel free to get in his car and drive away and that there was never a time at which he felt free to exit the situation.
At the conclusion of the testimony, the circuit court stated that it was satisfied that Jones did not make the second purchase at Wal-Mart, but that Ms. Alexander believed it to be true and, for that reason, the circuit court did not have an issue with the information in the search warrant. The circuit court then said, in pertinent part:
Number one, the Court is — is satisfied that a reasonable person would not have felt free to leave and — and that the exigent circumstances did not exist, but I’m not — that didn’t have anything to do with the validity of the search warrant. The linchpin, as I said, is the consent to search. In the consent to search, in this case, there is the proof and there is not clear and positive proof. And that — that particular — the results of that search is the key ingredient, ultimately, in the validity of the search warrant. So the question that flows from all that invalidates it and the motion to suppress is granted. But I don’t know where this leaves us.
Upon being asked for clarification by the prosecutor, the circuit court agreed that even if the finding of the methamphetamine was not in the search warrant, it did not think that there was enough probable cause to sign the search warrant. The circuit court then memorialized its ruling in a bench order filed July 10, 2006, which indicated that Jones’s motion to suppress was granted. The State filed a notice of appeal, which appeal is now before us.
The State argues that the instant appeal involves the correct and uniform administration of the law because the circuit court applied a flawed interpretation of the law to suppress evidence seized pursuant to a search warrant. It contends that the circuit court erred in granting Jones’s suppression motion because the nonconsensual search of Jones’s pocket was not a substantial violation in the context of a search-warrant application. The State additionally argues that in ruling that there was not sufficient probable cause in the affidavit to support the search warrant, even without the evidence of the baggie containing methamphetamine residue, the circuit court erred as a matter of law in its interpretation of Ark. R. Crim. P. 13.1(b) and case law interpreting the “independent-source rule.” For these reasons, the State contends, this court should reverse the circuit court’s order suppressing the evidence seized from Jones’s residence and remand the matter for further proceedings.
Jones responds that, despite the State’s attempt to phrase its argument in terms of an error in interpretation, every point the State makes turns on the circuit court’s application of the law under the specific facts of this case and, for that reason, it is an improper state appeal. As to the merits, Jones contends that an examination of the factors set forth in Ark. R. Crim. P. 16.2(e) leans in favor of suppression. He further submits that the independent-source rule was not a factor in the circuit court’s decision. He avers that the State has no basis for characterizing the violation as insubstantial and that where there were numerous violations of a suspect’s rights, with no intervening event or even distance in time between the illegality and a warrant based in part on illegally obtained information, the evidence must be suppressed.
Propriety of the State’s Appeal
Prior to examining the merits of any state appeal, we must first determine whether it is a proper state appeal. Arkansas Rule of Appellate Procedure - Criminal 3(a)(1) provides that “[a]n interlocutory appeal on behalf of the state may be taken only from a pretrial order in a felony prosecution which (1) grants a motion under Ark. R. Crim. P. 16.2 to suppress seized evidence.” Ark. R. App. P. — Crim. 3(a)(1) (2006). The rule further states:
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.
Ark. R. App. P. - Crim. 3(c) (emphasis added).
This court has frequently observed that there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. See State v. Nichols, 364 Ark. 1, 216 S.W.3d 114 (2005). The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Ark. R. App. P. - Crim. 3. See id. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. See id.
As a matter of practice, this court has only taken appeals that are narrow in scope and involve the interpretation of law. See State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005). We do not permit State appeals merely to demonstrate the fact that the trial court erred. See id. Thus, where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. See id. Similarly, where the resolution of the issue on appeal turns on the facts unique to the case or involves a mixed question of law and fact, the appeal is not one requiring interpretation of our criminal rules with widespread ramifications, and the matter is not appealable by the State. See id. Finally, where an appeal raises an issue of the application, not interpretation, of a criminal rule or statutory-provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State under Rule 3. See id.
Here, the State claims that the circuit court “applied a flawed interpretation of the law to suppress evidence seized pursuant to a search warrant.” We hold that the resolution of the issues presented would necessarily require an intensive factual discussion. Therefore, this appeal is not one requiring interpretation of our criminal rules; instead, it raises issues involving the application of our rules to the facts of the case. Moreover, it is clear that the circuit court’s determination necessarily turned on the circuit court’s assessment of the witnesses’ credibility. We have never wavered on our longstanding rule that it is in the province of the circuit court, not this court, to determine the credibility of witnesses. See State v. Nichob, supra. Nor would a review of this appeal have widespread ramifications on the interpretation of our criminal law. Accordingly, we hold that it does not involve the correct and uniform administration of the criminal law and does not fall within the confines of Ark. R. App. P. - Crim. 3. We, therefore, dismiss the appeal.
Appeal dismissed.
Alexander testified that such a tester is used “to withdraw liquid from one place ... to another.”
Detective Culpepper testified that they had received previous information from several people that Childress was a methamphetamine dealer. | [
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Per Curiam.
Jennifer Conlee was awarded an absolute divorce from Tom Conlee in 2005. Since then, both parties have consistently been engaged in litigation, alleging noncompliance with the divorce decree. Jennifer petitioned the circuit court to hold Tom in contempt for failure to comply with the terms of the divorce decree. Moreover, Jennifer also filed two petitions, alleging that Tom was not disclosing certain assets. The circuit court entered three separate contempt orders, concluding that Tom had willfully refused to comply with the terms of the divorce decree. However, the circuit court denied Jennifer’s petitions concerning Tom’s alleged nondisclosure of assets, concluding that she had not met her burden of proof with respect to those allegations. Tom filed three separate notices of appeal from each contempt order, and Jennifer cross-appealed from the last contempt order. We conclude that Jennifer’s addendum is deficient as to her cross-appeal.
Jennifer filed a cross-appeal, contending that the circuit court erred in determining there was insufficient evidence to determine that Tom had undisclosed assets. However, the two relevant petitions are not included in the addendum or the record. Specifically, according to the circuit court’s order, Jennifer filed two petitions concerning assets not disclosed by Tom. According to the circuit court’s order, these petitions were filed on March 1, 2005, and June 14, 2005. In its order, the circuit court denied those petitions, and the denial of those petitions appears to be the sole subject of Jennifer’s cross-appeal. Arkansas Supreme Court Rule 4-2(a)(8) (2006) requires that the addendum shall include true and legible photocopies of, among other things, the relevant pleadings, documents, and exhibits that are essential to an understanding of the case and the court’s jurisdiction on appeal. (Emphasis added.) In the absence of the pleadings on which the trial court based its decision, it is impossible for the court to make an informed decision on the merits of this case, let alone determine whether her arguments are, in fact, preserved for appeal.
Here, Jennifer has provided a flagrantly deficient addendum. Because the brief fails to include the relevant petitions, we find it to be deficient such that we cannot reach the merits of the case. Jennifer is granted fifteen days from the date of this opinion to file a substituted addendum to conform to Rule 4-2(a)(8). See In re: Modification of the Abstracting System-Amendments to Supreme Court Rule 2-3, 4-2, 4-3, and 4-4, Ark. Sup. Ct. R. 4-2(b)(3), 345 Ark. App’x 626 (2001). If Jennifer fails to file a complying addendum within the prescribed time, the appeal should be dismissed for noncompliance with the Rule. Id. After service of the substituted brief on Tom, Tom should have an opportunity to file a responsive brief in the time prescribed by the Supreme Court Clerk, or to rely upon his brief that was previously filed in this appeal. See Ark. Sup. Ct. R. 4-2(b)(3) (2006); Moon v. Holloway, 353 Ark. 520, 110 S.W.3d 250 (2003). For clarity’s sake, we consolidate Conlee v. Conlee, 05-743, with the instant case, 06-586. | [
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McCulloch, J.
The petitioner, O. H. Sumpter, is contestee in an election contest instituted against him in the circuit court of Garland County by a rival candidate for the office of county and probate judge of that county at the general election held-in September, 1906, and he presents to this court his petition for the writ of prohibition to prevent Hon. A. M. Duffie, the presiding judge of said circuit court, from assuming jurisdiction of the contest.
The statute provides that if the election of any county and probate, judge shall be contested it shall be before the circuit court of the county. Act January 23, 1875, Kirby’s Digest, § 5856. The petitioner contends that this statute is in conflict with the provisions of the Constitution of the State and void.
The Constitution contains the following provisions with reference to election contests:
“The general assembly shall provide by law the mode of contesting elections.in cases not specificially provided for in this Constitution.” Art. 19, § 24.
“That in all cases of contest for any county, township, or municipal office, an appeal shall lie, at the.instance of the party aggrieved, from any inferior board, council, or tribunal to the circuit court, on the same terms and conditions on which appeals may be granted to the circuit court in other cases-; and on such appeals the case shall be tried de novo.” Art. 7, § 52.'
The only mode of contesting elections specifically provided for in the Constitution is for the offices of Governor, Secretary of State, Treasurer of -State, Auditor of State and Attorney General. Art. ii, § 4. Learned counsel for petitioner argue that the section of the Constitution just quoted confers jurisdiction upon the circuit court, appellate only in character, to determine election contests for county offices; that the provision is exclusive, and forbids the exercise by that court of original jurisdiction. If this be true, it is, of course, beyond the power of the Legislature to confer original jurisdiction upon the circuit court in contests for such offices. But we do not think that-the section in question was intended as a limitation upon the power of the Legislature to provide tribunals wherein election contests shall be determined.
The two sections on the subject which have been quoted must be read together in order to interpret their meaning. The first one, in the broadest terms, empowers the General Assembly to provide a mode of contesting elections in cases not specifically provided for in the Constitution itself. This has been construed to mean that a place as well as a manner of trial shall be provided. Glidewell v. Martin, 51 Ark. 559.
The other section provides that in all contests for county, township or municipal offices an appeal shall lie from any inferior board, council or tribunal to the circuit court. It can be construed to mean only that, if the Legislature shall provide an “inferior board, council or tribunal” as the place of contest for such offices, an appeal shall lie therefrom to the circuit court. It does not mean, as contended, that the Legislature can not authorize a trial in the first instance in the circuit court, but must provide an inferior tribunal for the original hearing. This is plain when we consider the use of the word “inferior.” If that word had been omitted, there might be less certainty that the framers of the Constitution did not mean to provide for an appeal to the circuit court in all contests for such officés, thereby conferring appellate jurisdiction only upon the trial court. But the use of the word “inferior” makes it plain that a right of appeal to the circuit court was guarantied only from “any inferior board, council or tribunal” which the Legislature might create or empower to determine such contests.
Doubtless, the framers of the Constitution had in mind that, contests for county, township or muncipal offices being matters of local concern, the Legislature, in the exercise of the general power conferred to provide a place for such contests, would either empower the circuit court sitting in .the county to determine them, or create local tribunals to determine them which would be inferior to the circuit court, and in the latter event intended by this section to provide in mandatory terms for appeals to the circuit court from the decisions of such inferior tribunals.
We need not consider what the effect would be if the Legislature should attempt to confer original jurisdiction to hear.such contests upon some tribunal with territorial jurisdiction coextensive with the State or subdivision thereof greater than a county — whether or not such tribunal would be inferior to the court in the meaning of the section giving a right of appeal to that court. We have no such question before us. The section in question, however, manifestly contemplates the creation of some tribunal, not superior to the circuit courts, to try election contests for county offices.
It is settled by authority that election contests are not civil actions in the ordinary acceptation, but are special proceedings, and the framers of the Constitution manifestly deemed it necessary, in order to give the right of appeal from decisions of inferior tribunals, to expressly provide that appeals must be granted. Davis v. Moore, 70 Ark. 240; Douglas v. Hutchinson, 183 Ill. 323; Williamson v. Lane, 52 Tex. 335; Knox v. Fesler, 17 Ind. 254; Patterson v. Murray, 53 N. C. 278; Reynolds, etc., Co. v. Police Jury. 44 La. Ann. 863. This is, we think, all they intended by the incorporation of the section into the organic law. The position which this section occupies in the framework of the Constitution is not without some significance in determining the purpose which the lawmakers entertained when they incorporated it in the organic law of the State. It occupies a place in .the article on the judicial department, and immediately follows a section declaring the right of appeal to the circuit court in all cases of allowances made for or against counties, cities or towns, and the language of the two sections is strikingly similar, both providing in substantially the same language that appeals shall lie to the circuit court at the instance of the party aggrieved “on the same terms and conditions on which appeals may be granted to the circuit court in other cases,” and that the case shall be tried in the circuit court de novo. Now, it can not be argued that the preceding section was intended to fix the original jurisdiction for the allowance of claims against counties, for that had already been specifically fixed in another section of the Constitution. Neither can it be successfully maintained that the section now under consideration negatived the power of the Legislature to confer upon the circuit courts original jurisdiction of election contests for county offices.
This court said in State v. Martin, 60 Ark. 343, that “the maxim ‘expressio unius est exclusio altering is not to be applied with tire same rigor in construing a State Constitution as a statute; and that only those things expressed in such positive affirmative terms as plainly imply the negative of what is not mentioned will be considered as inhibiting the powers of the Legislature.” In that case it was decided that the provision of the Constitution authorizing the election of a judge for each judicial circuit did not prohibit the Legislature from providing for the election of two judges for a circuit.
Chief Justice Cockrtee, in delivering the opinion of the court in Ex parte Reynolds, 52 Ark. 330, said: “It is essential in any case that a prohibition ■ upon the powers of the Legislature should be certainly found in the Constitution to warrant the court in declaring a legislative act void; but where the act has long been acquiesced in by the legislative and judicial branches of the Government, the courts should be satisfied that it is repugnant, not only to the express and unequivocal terms of the instrument, but to its intent and reason, before resorting to their extraordinary power of nullification.”
Another potent factor in reaching a conclusion as to the intention of the framers of the Constitution in inserting this section is the legislative construction thereof adopted almost contemporaneously with the adoption of the Constitution, and the early judicial acquiescence in that construction.- This statute, authorizing the circuit court to exercise original jurisdiction in the trial of an election contest for the office of county and probate judge, was enacted on January 23, 1875, within a few months after the adoption of the Constitution by the General Assembly of which there were many members who had been members of the recent constitutional convention, and who were elected at the same election at which the Constitution was adopted by the people.
The case of Patton v. Coates, 41 Ark. 111, which was decided less than ten years after the adoption of the Constitution, was a contest instituted in the circuit court of Pulaski County to contest the election of county and probate judge. The question of jurisdiction was not raised or discussed, though the casé was reversed and remanded for a new trial, and the opinion of the court was written by Judge Eakin, who sat in the constitutional convention, and who, according to the statement of Chief Justice English (State v. Devers, 34 Ark. 195), drafted at least some of the provisions of the Constitution concerning the jurisdiction of the circuit court. “Such matters,” said Chief Justice Cockrill, in Ex parte Reynolds, supra, “are not entitled to controlling weight, for acquiescence for no length of time can legalize a clear usurpation of power; but when an examination of the Constitution leaves a doubt, the judges are warranted in looking to these extraneous matters for aid.”
The cases of Payne v. Rittman, 66 Ark. 201, and Whittaker v. Watson, 68 Ark. 555, involved contests for the offices of marshal and mayor, respectively, of cities, and this court sustained the original jurisdiction of the circuit court to determine the contests. The statutes of the State do not name any tribunal for the trial of contests of elections for municipal offices, and the court in those cases based its decision sustaining the jurisdiction of the circuit court on the constitutional provision making that court the residuum of all unassigned original jurisdiction. The particular question now presented that' section 52 of article 7 confers appellate jurisdiction only, and prohibits the exercise of original jurisdiction by the circuit court does not appear to have been raised or discussed in those cases, but the decisions themselves are necessarily in direct hostility to the contention against the power of .the Legislature to confer original jurisdiction on the circuit court. These decisions stand as a barrier in the pathway of the petitioner, and we are asked to overrule them, but we decline to do so. We adhere to them in so far as they control the decision of the question we now have under consideration.
We are therefore of the opinion that the statute conferring original jurisdiction upon the circuit court to hear and determine contests for the office of county and probate judge was valid; and that the circuit court of Garland County was correct in assuming jurisdiction of the contest set forth in the petition.
The prayer of the petition herein is denied, the temporary writ of prohibition issued here is dissolved, and the petition is dismissed at the cost of the petitioner. | [
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Riddick. J.,
(after stating the facts.) In this controversy three separate actions are involved. As these cases rest to a certain extent on the same facts, the parties consented that they should -be consolidated and heard together by the chancery court. Without discussing the propriety of this practice, we shall proceed to consider the questions raised by the- appeal-.
First, as to the action brought against the Compress Company by Miiller & Company to recover 82 bales of cotton and the action of McMurray & Company to recover 46 bales: The evidence shows that .the identical cotton owned by .thesé parties, and which had been deposited with the Compress Company by McMurray & Company, and receipts issued to them, -was still held by the Compress Company at the time these suits were commenced. The books of the Compress Company show that the 128 bales of cotton now held by the Compress Company belong to these plaintiffs; and while the receipts given to the plaintiffs were lost or stolen from them, it is admitted by -the defendant that these receipts are now in its possession, having been surrendered to it by -another party. But the ¡Compress Company, for a -defense against the claims of these parties to the cotton in its possession, alleges that it has “already delivered .to the party who surrendered to it the receipts issued for thi-s cotton the number of bales called for by these receipts. It will -be necessary to notice the circumstances under -which this delivery -w-as made.
The evidence shows that the Alphin-Lake Cotton Company had purchased -and shipped to the Compress Company several thousand bales of -cotton during the cotton season of 1902-1903. All of this cotton was purchased with money obtained fr-om different banks. The Compress Company issued receipts for .this cotton in the name of ,the Alphin-Lake Cotton Company, but it delivered the receipts, not to Alphin-Lake Cotton Company, but to the banks in exchange for bills of lading held by the banks, and the banks then -held the receipts of the Compress Company as collateral security for the money advanced to .the Alphin-Lake Cotton Company. Lake was the general manager of this -company, and conducted its business, at Little Rock. When he desired to ship any cotton held by the Compress Company, he obtained from the bank receipts for the number of bales he desired to ship, and the Compress Company would then ship the cotton out on his “turnout” order upon his surrendering receipts for an equal number of bales, without regard to whether these receipts had been issued or assigned to him or not. For, prior -to .this litigation, the receipts which the Compress Company gave for cotton contained only a meagre description of the cotton, and cotton standing on the books of the warehouse to the credit of one person would be shipped out on the "order of -such person upon his surrendering receipts issued to hi-m or to any other person for a 1-ike number of bales. In other word's, the-Compress Company, the banks and cotton dealers dealt with these compress receipts as if they called for no particular cotton, -but only for a certain number of bales of cotton.
While business was being carried on in this way, Lake found or obtained in some surreptitious way .compress receipts for 128 bales of cotton which .had been issued by the Compress Company to McMurray & Company for cotton deposited by them, and of which they had afterwards sold 82 bales to Miller & Company. ■ At the time Lake came into possession of these McMurray receipts, he had at the compress warehouse a large number of bales of cotton which stood on the books of that company in his name, or in his firm’s name. But the company knew that he had pledged the compress receipts issued to him for this cotton to the banks as security for loans, and they would not allow him. to ship the cotton without the surrender of receipts covering the number of bales he desired to ship. Lake, then, in order to get possession of his cotton without paying his debt to the bank, presented these receipts of McMurray & Company which he had found. And, although the receipts had never been indorsed by McMurray & Company, and showed o'n their face that they did not belong to Lake, the Compress Company, relying on his honesty and supposing that he was the owner, took them up, and -in exchange therefor turned over to Lake, not the cotton for which the receipts were given, but 128 bales which, though they stood on the books of the Compress Company as belonging to him or his firm, had, with knowledge of the Compress Company, been pledged to the bank by the deposit of the compress receipts issued therefor. Lake thus obtained 128 bales of cotton the compress receipts for which were held by the bank as security for its loan, and to which he had no right, .and the Compress Company obtained from him compress receipts that he did not own and had no authority to surrender.
Although our statute malees such receipts “negotiable by written indorsement thereon and delivery in the same manner as bills of exchange and promissory notes” (Kirby’s Digest, § 529), it does not follow that all the consequences incident to the indorsement of bills and notes before maturity ensue or are intended to result from such negotiation. That question was ably discussed by the Supreme Court of the United States in Shaw v. Railroad Company, and the rule stated that the finder of a bill of lading indorsed in blank could not by transfer divest the title of the owner. Shaw v. Railroad Company, 101 U. S. 557. The same rule would apply to a lost warehouse receipt, for bills of lading and compress and other warehouse receipts stand in this respect on the same .footing. Hale v. Milwaukee Dock Co., 29 Wis. 482, 9 Am. Rep. 603. The compress receipt represents the property, and the transfer of the compress receipt by the owner transfers the title ito the property. But a thief who finds a compress receipt can give no more title to a 'purchaser from him than he could to property which he had found or stolen. Shaw v. Railroad Company, 101 U. S. 557. If this is the law, -even where the lost receipt had been indorsed in blank by the owner, as -held by the Supreme Court of the United States in the case just cited, how clear it is that the finder of an- unindorsed receipt, which on its face shows the name of the .true owner, can not by selling or surrendering such receipt transfer the title of the owner. In this case the compress receipts issued to McMurray & ¡Company which were found by Lake had never, been indorsed, and carried on their face notice to any one dealing with them that they belonged, not to Lake, but to another. Lake not only had no title to them, but his finding and surrender of them to the Compress Company in no way affected the rights of -the owners thereof or their title to the 'cotton which these receipts represented.
It is true, as remarked by the Supreme Court of -the United States .in Shaw v. Railroad Company, that the owner of a bill of -lading or compress receipt may by his own carelessness put it in the power of a finder to occupy the position of an owner under circumstances that would estop such owner from setting up -his rights against an innocent purchaser. In this case there is the -suspicious circumstance that .the manager of McMurray & Company, who was also a member -of that firm, admitted that he had loaned or exchanged compress receipts with Lake on -at least one oocasion to enable Lake -to ship out cotton which a compress company held. If he had loaned these receipts to Lake by which Lake obtained from the defendant Compress Company the 128 bales of cotton in controversy -here, his firm would clearly be estopped to claim title -to such receipts or cotton as against the Compress -Company. But he testified positively that the receipts he exchanged with Lake were those of another Compress Company, that he had never delivered or authorized Lake .to take any receipts rendered by the defendant Compress Company, and if he had those receipts they were obtained without .the consent of the plaintiffs in some way unknown to them. The chancellor' found in favor of plaintiffs on that point, and we think the evidence supports the finding. That being so, there .is nothing shown to estop' the owners of these receipts from asserting their ownership to this cotton. It was their cotton for which it holds the receipts of the Compress Company: have neither sold .it nor transferred the compress receipts therefor to others, .and, so far as the law is concerned, their right to recover is clear. The chancellor, we think, correctly decided in their -favor against the Compress Company.
Second, as to the action of the Citizens’ Bank against the Compress Company to recover the value of the 129 bale's of cotton for which it holds the receipts of the Compress Company. The evidence shows that the cotton for which these receipts were given as not now in the possession of the 'Compress Company. One bale -of this cotton the Compress Company admits that it lost, -and the other 128 bales .that it ought to have to meet these receipts held by the bank it, as before stated, delivered to Lake on receipts of McMurray & Company, which he had surreptitiously obtained. In other words, the Compress Company let Lake have 128 'bales of cotton belonging to the bank which it held as collateral security for loans made to Lake upon his surrendering to the Compress Company receipts given to McMurray & Company. But, as we have seen, these receipts had never been transferred or indorsed by the owners, and showed on their face that they did not belong to Lake. The Compress Company -simply took Lake’s word . for it that he was the owner of the receipts. The Compress Company thereupon surrendered to him cotton for which it had previously delivered its receipts to the Bank, and to which it should have known that the Bank had a claim.
Counsel for the Compress Company attempts to .have it evade liability by contending that the. receipts of the Compress Company held by the Bank call for only a certain number of bales >o£ cotton, and do not describe or identify any particular cotton, and that therefore the title to the cotton did not pass to the holder of the receipts. But this cotton was purchased outside of the city and shipped to this market. It was paid for by drafts on the Bank to which the bills, of lading of the railway company describing the cotton were attached and held by the hank as security for the loan. This cotton was thus identified at the time of the purchase, and the title thereto vested in the Bank by transferring to it the bills of lading issued by the'railway company. Afterwards, when the cotton arrived at the compress, the Compress Company took up the bills of lading and gave the Bank in lieu thereof compress receipts .stating the number of bales of cotton, but this exchange did not affect the title of the Bank to the cotton. This was then not an attempted transfer to the Bank of a cerain number of bales out of a larger number, where title would not pass until a .separation or selection was made. - It was a transfer to the Bank of a certain selected lot of cotton,' which, while .in the hands of the warehouseman, was afterwards mingled with a larger number of bales so as to malee identification more o.r less difficult. But this mingling did not divest the title of the Bank, and it still owned a certain number of bales in the hands of the Compress Company.
But, if we concede that no particular cotton was identified by these receipts, and that no title passed to the Bank, the Compress Company would still be bound for -the number of bales of cotton named in the receipts. The receipts would, in effect, be a contract on the part of the Compress Company that it would hold for and on demand deliver to the owner of the receipt or his assignee the number of bales of cotton named therein. This is not a suit between the Bank and a creditor of Take attaching the cotton, nor between the Bank and the person to whom Take sold -the cotton after he-withdrew it from the Compress Company. In such a suit the question as to whether the title of the cotton passed to the Bank might be very material. But in this action between the Bank and the Compress Company it is not very material whether the title passed to ■the Bank or not. If the -title passed to the Bank, the Compress Company has wrongfully disposed of 129 hales of cotton belonging to the Bank, and must account to it for the value thereof. If the title did not pass to the Bank, still the Bank holds the contract of the Compress-Company -to the effect that it has received of the Alphin-Lake Cotton Company 129 bales of cotton which it agrees to deliver to the Bank on demand, and which contract it has failed to perform, and it must respond in damages for the value of the cotton, or at least to the exent of the Bank’s debt or interest in the cotton.
If this was an action at law for conversion, it might be material for the Bank to show that it had title to the cotton; but, it being now an action in equity to settle the rights of these panties growing out of the transactions set up .in -the pleadings, the question whether title passed to the Bank is not material to show liability of -defendant. There is no denial that the -cotton mentioned in -the receipts was actually delivered to the Compress Company. The Compress Company had notice that -the receipts which it issued therefor were -held by the Bank as a collateral security for a loan to Lake. Under those circumstances, as between the Bank which held the receipts and the Compress Company which issued them, w-e think that the Compress Company is liable to -the Bank for the number of bales of cotton -called for by the receipt, whether the title to the cotton passed to the Bank or not.
Again, the Compress Company undertakes to justify, its conduct in -turning over to Lake this cotton for which the Bank held its receipts, on the surrender by him of receipts issued by the Compress Company to McMurray & Company which he had found, by saying that it was the custom .to treat all these compress receipts as made -to bearer. But the receipts were not issued to bearer. The receipts which the Compress •Company accepted from Lake in exchange for this cotton were issued to McMurray & Company. On the surrender of receipts issued to McMurray & Company, and which had never been indorsed by them, the Compress Company delivered to Lake cotton which he had pledged to the Bank which held the receipts of -the Compress Company therefor. The Compress Company had notice that the receipts which -it had- issued to Lake fo-r this cotton had been pledged to the Bank, and yet, without consulting the Bank, it turned over to him this cotton on his -surrendering receipts of another party for other cotton which receipts he had found. In acting in this way the Compress Com pany acted in direct violation of our statute which forbids a warehouseman from removing or permitting: to be shipped or removed beiyond its control any goods, cotton, grain or other produce or commodity for which he has given his receipts without the written assent of the person holding his receipt. Kirby’s Digest, § 527. The Bank did not assent to this act of the Compress Company, and the Compress Company can not set up a custom to protect it from the consequences of its .act done in direct violation of the plain mandate of the statute. Dickinson v. Gay, 7 Allen (Mass.), 29, S. c. 83 Am Dec. 656; Coxe v. Heisly, 19 Pa. St. 243; 29 Am. & Eng. Enc. Law (2d Ed.), 376-378.
But, even if -the statute could be abrogated in that way, the evidence .does not show any custom that could protect the Compress Company under the facts of this case. The evidence may show that there was a custom for the. Compress Company to deliver -cotton to the party who had placed it in the company’s warehouse upon surrender by him of receipts of -the Compress Company for an equal number of bales, whether the receipts were originally issued to him or not, provided that he then ow-ned them, and had a right to surrender -them. But -there is no proof of a custom that would justify a delivery of cotton which the owner had pledged to a bank with knowledge of the Compress Company upon the surrender by him of a lost or stolen reoeipt to which he had no right or title, without the consent of the Bank. When cotton was delivered upon the surrender of receipts not issued to the party obtaining the cotton, it was done on the assumption that such party was the owner of the receipts, and had the -right to .surrender them. If- the -party obtaining the -cotton delivered therefor compress receipts that were issued to and belonged to another, and which he h-ad no authority to surrender, the Compress Company gained no rights thereby in the absence oif fault of the legal owner of the receipt, >and was in the .same position as if it had delivered the cotton without requiring any receipt in exchange therefor. In ■fact, this custom that the Compress .Company relies on seems to have .been based on the theory that all men- were honest. So long as no unscrupulous dealers appeared, so long as the Compress Company was certain that the parties to whom cot ton was delivered were the owners of the receipts they surrendered, no great harm was felt; for, while that was so, the Compress 'Company always had on hand the number of bales called for by its outstanding receipts, though it might not be the identical cotton for which the receipts were executed. But this loose method of -doing business was calculated to attract the attention of -dishonest commercial adventurers. That years passed before any harm was felt speaks well for the honesty of those dealing with cotton in this market. But the unscrupulous man arrived at last, and then a day dawned full of -danger .to these unsuspecting dealers. Taking advantage of this lax method of transacting business, a daring financial buccaneer simply walked off with 128 bales of cotton to which he was not entitled, and for which the Bank that had loaned him money held the receipts of the Compress Company. It is a matter of current- history -that these were not his only victims. Other banks, compress companies and even railroads suffered from his assaults. The question here is whether this Bank or the Compress Company, neither of which had been guilty of any intentional wrong, must sustain the loss in this case. The substance of the matter is that Take bought 129 bales of cotton and shipped it to the Compress Company. * He transferred the' railroad bills of lading to the Bank to obtain money to pay for the cotton. Afterwards the Compress Company, or Take with the knowledge -of that company, procured the bills of lading from the Bank by substituting therefor the compress receipts issued in his name for the cotton. Although there was no -written indorsement of the receipts, the tiansferwas good in equity, and gave the Bank an equitable title thereto. The debt of Take to the Bank has never been paid. It still holds the compress receipts. But the Compress -Company, relying o-n Take’s word that he was the owner of other reoeipts belonging to McMurray & Company, turned him over in ex-change therefor the .cotton that -in equity belonged to the Bank. As the Compress Company had notice -that these reoeipts were held by the Bank, as it was not in any -way misled by the Bank, and as the Bank has never -consented to this act of the Compress Company -in delivering the cotton to Take, we think that -the Compress Company -should account to the Bank for ithe value of the cotton, or for such an amount as will cover the Bank’s .debt. For, in delivering cotton to Lake for which’ the Bank held its receipts without the consent of the Bank, the Compress Company violated both its contract and the statute of the State, and must bear the loss resulting from its own carelessness.
On the whole case, the judgment of the chancellor as to McMurray & Company and Miller & Company will be affirmed. The judgment in favor of the Compress Company as to claim of Citizens’ Bank will be reversed, and the cause remanded with an order that .the cause be referred to a master or commissioner to hear evidence and determine the value of the 129 bales of cotton -for which the Bank holds compress receipts, and on the coming in of such report that the Bank have judgment against the Compress Company for the value of the cotton.
By consent of parties the 128 bales of cotton in the hands of the Compress Company at the time these actions were commenced were sold and the proceeds deposited in the bank to await .the action of the chancery court. This cotton has been decided to be the property of McMurray & Company and Miller & Company, but under the terms of that agreement we do not think these parties can recover interest on the money except from the date of the judgment of the chancery court. Nor do we think- that the bank which held the money should be allowed interest on the sums claimed by it except from the date of that .judgment. After the judgment -the Bank had no right to retain the fund, and must pay interest, and is entitled to -recover from the Compress 'Company interest on its debt from the same date. | [
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Hill, C. J.
The controlling question of the case is the effect to be given this clause in the policies:
4. “That in consideration of the surrender value promised in the policy and in this application, viz: If this policy shall become forfeited by nonpayment of any premium at any time after three full annual premiums have been paid, the company will, upon the surrender of the policy issued on this application within six months after such forfeiture, issue a non-participating paid up policy for 'such sum as the reserve upon this policy at the time of such forfeiture according to the legal standard of the State of New York will purchase as a single premium at the company’s published rate, and in further consideration of the participation of the policy in any surplus of the company which may be distributed while it is in force, all right or claim to any other surrender value than that so promised, whether required by a statute of any State or not, is hereby relinquished.”
Five days after the six months expired in one policy and 18 days after it expired in the other the insured mailed the policy to the company, and demanded paid-up insurance pursuant to his original contract.
If the provision that the policy must be surrendered within six months be a condition precedent to the right to paid-up insurance, and if time of surrender therein named is of the essence of the contract, then appellant has no case; otherwise he has.
There are three lines of decisions to which the court is referred.
(a) Cases like Knapp v. Homeopathic Mutual Ins. Co., 117 U. S. 411, where an election to pursue one or another course is evidenced by surrender of policy or other act, then the act must be performed as a condition precedent to sustaining the elected right. But these cases are not of weight here, for no election was required under this contract. The forfeiture of the primary insurance by reason of failing to pay brings into being the secondary insurance stipulated to be payable in such event. The event itself, and not the surrender of the policy, brings into effect the secondary condition of the original contract.
([b) There is a line of decisions holding that, under clauses like the one at bar, the surrender of the policy, within the time mentioned is a condition precedent by its terms to the vesting of the secondary, or paid-up, insurance. Hudson v. Knickerbocker Life Ins. Co., 28 N. J. E. 167; Universal Life Ins. Co. v. Whitehead, 58 Miss. 226; Bonner v. Mutual Life Ins. Co., 36 So. Rep. (Miss.), 538; Universal Life Ins. Co. v. Devore, 88 Va. 778; Equitable Life Assurance Soc. v. Evans, 64 S. W. Rep. (Tex.), 74; Inloes v. Prudential Ins. Co., 82 S. W. Rep. (Tex.), 1089; Sheerer v. Manhattan Life Ins. Co., 20 Eed. Rep. 886, overruling same case, 16 Fed. Rep. 720; 2 Bacon, Benefit Societies, § 373. See Cooley’s Briefs on Ins., pp. 2413, 2420 for full review’ of the cases.
(c) There is another line of decisions, principally in Kentucky, which hold that time is not of the essence of this provision, and that the surrender of the policy does not have to be made within the stipulated period, provided it is made within a reasonable time. Montgomery v. Phoenix Mut. Life Ins. Co., 14 Bush (Ky.), 51; Mutual Life Ins. Co. v. Jarboe, 102 Ky. 80, s. c. 42 S. W. Rep. 1097, s. c. 39 L. R. A. 504, where cases departing from Montgomery v. Phoenix Mut. Life Ins. Co. were overruled; Washington Life Ins. Co. v. Miles, 112 Ky. 743; s. c. 66 S. W. Rep. 790; Mutual Life Ins. Co. v. O’Neal, 76 S. W. Rep. (Ky.), 839; Washington Life Ins. Co. v. Lyne, 83 S. W. Rep. 122. The same rule prevails in Maine. Chase v. Phoenix Mutual Life Ins. Co., 67 Me. 85; Dorr v. Phoenix Mutual Life Ins. Co., 67 Me. 438.
The reasoning in the leading Kentucky case is as follows: That time is not of the -essence of contracts generally unless executory on both sides or expressly made so; and that the ' insurance company had received the entire consideration for performance on its part, and it is -inequitable to sustain a defense on the sole ground of lack of demand of a formal matter within a given time. The court said: “In this case the consideration for a paid-up policy has been fully paid, and, although the insured enjoyed the benefit of current insurance for the years in which the policy was in force for the full amount, that was not all that was paid for. The premiums by express convention paid for both current insurance and a paid-up policy, and now to deny to the assured the benefit of a paid-up policy because -the old one was not surrendered in time is, in the strictest and most obnoxious sense, a forfeiture. Such a claim is without support in reason, justice or authority, and can be supported in a court of equity.” Montgomery v. Ins. Co., 14 Bush, 51.
It is for the court to say which presents the better reasons, the majority or the minority line, for the decided weight numerically is against the Kentucky and Maine courts. Some of the cases holding that time is the essence of this provision cite N. Y. Life Ins. Co. v. Statham, 93 U. S. 24. In that case the' court said:
“All the calculations of the insurance company are based on the hypothesis of prompt payments. They not only calculate on the receipts of premiums when due, but upon compounding interest upon them. It is upon this basis that they are enabled to offer assurance at the favorable rates they do. Forfeiture for non-payment is a necessary means of protecting themselves from embarrassment. Unless it were enforceable, the business would be thrown into utter confusion. * * * An essential feature of this scheme is the mathematical calculations referred to, on which the premiums and amounts assured are based. And these calculations, again, are based on the assumption of average mortality, and of prompt payments and compound interest thereon. Delinquency can not be. tolerated nor redeemed, except at the option of the company. * * ,* When no stipulation exists, it is the general understanding that time is material, and that the forfeiture is absolute if the premium be not paid. * * * The case, therefore, is one in which time is material and of the essence of the contract.”
Every reason given herein why time is of the essence of the contract is conspicuous by its absence in this case; and the application of the doctrine to insurance, premiums shows to what it does so fitly apply, and shows also its utter inapplicability to a mere demand for evidence of rights already fixed.
A learned jurist who has contributed much of value to legal literature, Prof. John D. Lawson, in a recent work said:
“Where the time of performance is fixed by the contract, the question is whether it is of the essence of the contract or not; and this is a question of construction. * * * Time is of the essence of a contract when it is a material object to which the parties looked in the first conception of it. A provision in a contract is said to be of the essence of the contract when compliance with it was known by both parties at the time of entering into the contract to be of such importance that performance of the contract without strict compliance with it might be of no avail.” 9 Cyc. 604.
Tested by this principle, it is plain that the surrender of the policy in six months was not of the essence of the contract. The contract was chiefly for current insurance, and the payment of premiums, for the reasons so well stated by Mr. Justice Bradley in the’Statham case, supra, was of the essence of that contract; when that contract ceased by reason of the forfeiture for failure to pay the premium, then this other insurance became operative, not on account of any option or election or surrender of the policy, but in virtue of the original contract and the additional sums paid in order to produce this result. In defining the nature of such paid-up policies the Vermont court said: “The very end aimed at in offering and receiving the reduced or paid-up policy is, as the company’s circular declares, to obviate ‘all possible danger of loss.’ The paid-up policy issues as a redemption from a forfeiture of the original policy which otherwise would ‘cease and determine’ for non-payment of premiums. It can issue only in case two full premiums have been paid: and if so many have been paid, the right to it is given to the policy holder'by the original policy itself. Thus his right to it is a contract right that- inheres in the original policy.” Bruce v. Continental Life Ins. Co., 58 Vt. 253. To the same effect McDonnell v. Alabama Gold Life Ins. Co., 85 Ala. 401.
This is but a dropping from one kind of insurance to another, all written in the original policy, and paid for by the, premiums already paid, and it only applies after two contingencies happen, first, three annual payments must be made and, second, default must occur in the principal insurance. It is, of course, important to the company to know the status of its policy holders, but its own books fix the status under this policy. When the default in payment terminates the primary insurance after it has been maintained over three years, then it is forfeited, and then the contract gives this paid-up insurance to be computed according to its terms and by the company from the reserve as shown on its books. These matters are all of” the essence — the determinating factors, in the conception of the contract, and without whieh it would not have been made; the surrender of the old policy for the new in the last contingency is but a sensible and formal requirement in order that the secondary contract be evidenced by a second writing and not lie partly in the original contract and partly on the books of the company evidencing lapse of one kind of insurance and operation of another and amount of it. This would, if in a statute, be held directory, instead of mandatory, and in a contract belongs to conditions subsequent, rather than precedent. Either party could require of the other specific performance of the secondary contract, and the company could require the surrender of the old contract. In New York it has been held that where the original policy was lost or stolen, and could not be surrendered, the insured could compel the issuance of the paid-up policy on proper demand. Wilcox v. Equitable Life Assurance Soc., 173 N. Y. 50; Lindenthal v. Germania Life Ins. Co., 174 N. Y. 76.
The sounder and better rule is that time is not of the essence of the contract, so far as surrender of original policy is concerned within six, months. Of course, if there is a change in the situation of the company superinduced by non-action of the insured; if other rights be bui-lt up by reason of such non-action, or if the matter is unreasonably delayed, then other principles -might be invoked. None of those questions are in this case. In Kentucky it has b.een worked out by requiring demand for the paid-up policy and surrender of old within a reasonable time. Mutual Life Ins. Co. v. Jarboe, 102 Ky. 80; Manhattan Life Ins. Co. v Patterson, 60 S. W. (Ky.), 383; N. Y. Life. Ins. Co. v. Warren Deposit Bank, 75 S. W. 234; Mutual Life Ins. Co. v. O’Neal, 76 S. W. 839; Johnson v. Southern Mutual Ins. Co., 79 Ky. 405.
Appellee insists that the action is barred by statute of limitations, and cites the following Kentucky cases to sustain it: Eq. Life Ass. Soc. v. Warren Deposit Bank, 75 S. W. 275; Aetna Life Ins. Co. v. Suggs, 86 S. W. 966; Washington Life Ins. Co. v. Miles, 66 S. W. 740; Mut. Life Ins. Co. v. O’Neal, 76 S. W. 838. But these decisions are far from sustaining that view. On the contrary, the)' hold that demand must be made within five years, or the insured is precluded by laches; but where demand is ■made within that time, the rights are fixed.
Notwithstanding no paid-up policy -is issued, where there is a right to paid-up insurance by virtue of the original policy, an action at law may be maintained for the paid-up insurance on the death of the assured. Harlow v. St. Louis Mut. Ins. Co., 54 Miss. 425, s. c. 28 Am. Rep. 358; Winchell v. John Hancock Mut. Life Ins. Co., 30 Fed. Cases, p. 285; Barrett v. Mutual Life Ins. Co., 85 S. W. 749.
“The policy itself does not constitute the contract. It is merely written evidence of it.” McDonnell v. Ins. Co., 85 Ala. 401. The insured could have perfected his.evidence by a suit in equity for specific performance of the original contract and required the company to have furnished him evidence of his paid-up insurance, but that is important only as evidence.
If'the conclusion be correct that time was not the essence of this contract, and that, if demand is made within a reasonable time, then the insured’s rights became fixed, when he delivered the,policies and demanded paid-up insurance on the fifth and eighteenth day respectively after the six months designated in the policies, and were just as complete as if the calculation had been made and written into an instrument called a paid-up policy evidencing the obligation. His evidence was not in as good shape, but his rights were as complete in the one case as in the other.
It follows that the judgment ought to be reversed, and it is so ordered. | [
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Hill, C. J.
Nancy W. Smith filed a claim against the estate of Sarah A. Pitts, alleging that the deceased was indebted to her • in- the sum of $900 and interest, evidenced by a promissory note which had been lost, which note was signed by said Sarah A. Pitts, Floyd A. Jarvis, a son of Mrs. Pitts, and Nannie F. Jarvis, the wife of Floyd Jarvis. Mrs. Smith died, and appellee was appointed administrator of her estate, and continued the suit. Floyd A. Jarvis qualified as executor of the last will and testament of his mother, Mrs. Pitts. After a trial in the probate court the claim was allowed, and, on trial de novo in the circuit court before the circuit judge, the claim was again allowed, and Jarvis as executor prosecutes this appeal. The principal contention is as to the sufficiency of the evidence to sustain the finding. It would serve no useful purpose to review the evidence. It has been found sufficient by two trial judges who have heard it, and the court is of opinion that it is sufficient to sustain the judgment, and will pass to the questions of law presented.
1. Appellant points out a bit of hearsay testimony in the deposition of Miss Nannie Pitts.
There was an objection to the reading of the deposition, but that was a general objection to all of it; and if any part of the evidence was admissible, the objection fails. St. Louis, I. M. & S. Ry. Co. v. Hendricks, 48 Ark. 177. Two depositions were read, and at the end of them is this entry: “Defendant’s counsel objected to each and all of the interrogatories and answers contained in the two foregoing depositions, and asked that the same be excluded from the record. The objection was over ruled, to which defendant at the time excepted.” The statute contemplates exceptions to depositions to be in writing and specifying the ground of objection, and the same to be on file before the hearing. Secs. 3190-3192. Exceptions to competency and relevancy may be considered at the trial without this proper preliminary, but it is not expected that a court be required, under a general exception to each and every question and answer, without specifying the objection, to go through depositions and exclude every piece of hearsay which may crop into a witness’ answer, which was the case here. The question was proper, and the witness merely rambled into a hearsay answer. To obtain the benefit of an objection, it should have been made in apt time and manner, and not a mere dragnet 'objection which means nothing at the time, and which may serve to catch an error not otherwise pointed out. Such an objection to a bit of testimony, which would unquestionably have been stricken out if attention had been called to it, will not be considered.
2. Jarvis was offered as a witness to prove that he did not execute and deliver such a note as the one alleged in suit. The Constitution contains this provision: "In civil actions no witness shall be excused because he is a party to the suit or interested in the issue to be tried. Provided, in actions by or against executors, administrators or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.” Schedule to Const. § 2; also Kirby’s Digest, § 3093. By the express terms of the law Jarvis was excluded as a witness “as to any transactions with or statements of” Mrs. Smith. The purpose of Jarvis’s testimony was to negative the existence of the note sued upon, to which suit he had interposed the plea of non est factum in behalf of Mrs. Pitts’s estate. There was no issue as to Jarvis’s liability on the note in this suit; the sole issue was as to Mrs. Pitts’s liability, and the value of the testimony was to tend to show that he had not executed and delivered the note in question to Mrs. Smith, and impliedly that his alleged joint maker had not done so. Testimony negafiving the existence of a transaction in issue is as much within the inhibition as testimony affirming the existence of the transaction.
The testimony was properly rejected.
3. Appellant complains of exclusion of some evidence of Mrs. Jarvis, which he says was excluded as tending to prove an offset, and counsel admit that the probate court has no jurisdiction of a counterclaim or setoff, but seek to avail themselves 'of the evidence as tending to-prove partial or entire payment of the debt sued upon. There seems to have been no defense based upon payment; but, even if there had been, the excluded testimony is too indefinite to have been a proper basis for finding a judgment upon.
The question of the sufficiency of the evidence has been presented in varying phases, and considered, but, as stated, the court thinks it' sufficient to sustain the judgment, and it is affirmed. | [
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Hill, C. J.
On 9th of June, 1900, Carpenter brought suit in Arkansas County Chancery Court against Lawyer, in which he alleged that he was the owner of a tract of land therein described, and that Lawyer was claiming title to it, but had no title thereto, and that his claim was a cloud on plaintiff’s title, and prayed for its cancellation.
Constructive service was had upon Lawyer as a nonresident, and the suit progressed to judgment in Carpenter’s favor on the 9th of August, 1900, cancelling Lawyer’s title. Within less than two years, but over one year, Lawyer filed a motion to set aside the judgment and retry the case, tendered a cost bond an'd an answer showing a meritorious defense. The answer, in substance, denied Carpenter’s title, and set up title in Lawyer under a donation deed and seven years’ adverse possession, and alleged that he was in actual possession through a tenant at the time of the rendition of the decree.
The question presented is, what time after judgment on constructive service where title to real estate is quieted has the defendant to appear and retry the case on tendering an answer showing a meritorious defense ?
The act of March 4, 1887 (sec. 6259, Kirby’s Digest), provides for reopening judgment rendered on constructive service where defendant has not appeared within two years. This act may be dismissed from this case, for it is general in its terms, and is intended to apply to all judgments rendered on constructive service, except otherwise specially provided for, whereas the question here is which of several statutes relating to a particular sub ject — quieting titles — governs. A general law does not apply where there is another statute governing the particular subject, irrespective of the date of either the general or particular law; neither repeals the other; the particular legislation covers the narrower field where it is applicable. Dunn v. Ouachita Valley Bank, 71 Ark. 135; Mills v Sanderson, 68 Ark. 130; Ex parte Morrison, 69 Ark. 517; Chamberlain v. State, 50 Ark. 132; State v. Kirk, 53 Ark. 339; Thompson v. State, 60 Ark. 59.
Passing then to acts on the particular subject of quieting and confirming titles, three are found: Sections 661-675, Kirby’s Digest, relating to confirming tax titles and other titles acquired iii involuntary proceedings. These statutes are particular to this subject, and are not in this case. See Ex parte Morrison, 69 Ark. 517. That leaves for consideration the act of March 26, 1891, the second section amended by act of April 4, 1893, found as chapter 131, Kirby’s Digest, entitled.“Quieting Titles;” and act of March 28, 1899, part of the chapter on Confirmation of Titles, and found in secs. 649-660, Kirby’s Digest.
An examination of the statute of 1891-1893 will show that the subject-matters thereof are covered in the later statute. The first section (Kirby’s Digest, § 6517) gives an action to quiet title to real estate to a person, whether in actual possession or not, against an adverse claimant, whether in actual possession or not. The next section (6518), which was the amendment of 1893, requires the suit to be brought at law whenever the adverse claimant is in actual possession. . Where this was a contest for the possession of .real estate, there would be a right of trial by jury, and hence this provision merely takes out of the chancery court a case which it could not entertain. Whether there is any cumulation of remedies at law to those provided in the chapter on ejectment is not now important. The remainder of this section provides a suit in equity where the plaintiff is in possession or the land is wild and unoccupied, and permits a joinder of several tracts and claimants, and provides for separate trial where the issues are separate or joint trial where the issues a,re substantially the same, and gives the court authority to issue appropriate orders and to apportion the costs equitably. The next section relates to procedure of summoning the defendants.
The statute of 1899 gives to a person claiming to own land an action to confirm and quiet his title where it is wild or improved o.r in his possession. Sec. 649. The next section provides that the action shall be in the chancery court, and must be upon petition showing prima facie title in plaintiff, and that there is no adverse occupant of the land; and requires him to bring in all adverse claimants. The next section (651) permits the joining of several tracts in one petition. Section 658 provides that the rights of persons summoned shall be adjudicated according to equitable principles, and section 659 provides for the petitioner to pay the costs if there are no other parties to the proceedings, otherwise it shall be adjudged according to the principles of equity. Section 653 provides for publication of notice of the suit and its object and purpose.
Thus it is seen that every subject embraced in the equity action in the statute of 1891-3 is covered in the foregoing sections of the act of 1899.
There are but two other sections in the statute of 1891-3, and they are the one in question, as to reopening the decree rendered on constructive service, and section 6521, which makes the decree operate as a conveyance of title in certain cases and provides for recording the decree: The act of 1899 provides for recording the decree (660), but does not provide for the decree operating as a conveyance.
Probably the framers of the latter statute had in mind sections 4476, 4477, Kirby’s Digest, which seem to cover this matter fully, and therefore only reenacted the part of the section providing for recording the decree. Whatever may be the reason actuating the legislation, the fact that the substance of part of a section is reenacted and the remainder not reenacted- evidences an intention to repeal all not reenacted. The provision in the act of 1891-3 for reopening decrees (6520) giyes the defendant constructively summoned one year to appear and defend on showing a meritorious defense, but provides that the title to property the subject of the decree shall not be affected where it has passed to a purchaser in good faith. The act of 1899 gives any person the right within three years to appear and upon showing of a meritorious defense to be let in to defend, and any person laboring under disability of infancy, lunacy, idiocy or coverture may set aside the decree within three years after removal of disability. Section 657. There are other provisions in the act of 1899 i*1 addition to these mentioned, but it is not necessary to set them out, as only so much of the later act which covers the former is important here. This review shows that every matter legislated upon in the statute of 1891-3 is covered by this later act except the provision that where the adverse claimant is in actual possession the suit must be brought at law, or if in equity then to be transferred to law, and the provision making the decree operate as a conveyance of the title. Every other matter in the statute, and the very gist of it — a proceeding in equity to quiet title to real estate in the possession of the plaintiff or not in the possession of any one — is fully covered in every phase by the later enactment.
The established canon of statutory construction on this subject is: “Where the Legislature takes up a whole subject anew, and covers the entire ground of the subject-matter of a former statute, and evidently intends it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.” Pulaski County v. Downer, 10 Ark. 585; Dowell v. Tucker, 46 Ark. 438; Wood v. State, 47 Ark. 488; Inman v. State, 65 Ark. 508; Wilson v. Massie, 70 Ark. 25.
The application of the foregoing test to the chapter on Quieting Titles show that all of it is repealed.
The motion in question was aptly brought under sec. 657; and if the allegations in the tendered answer are true, the decree should be vacated.
Reversed and remanded. | [
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Hill, C. J.
The deceased, Fish, who was called Fisher, was one of a switching crew working with switch engine No. 722. A coupling was attempted to be made by the engine, and it failed, and Fisher went in between the cars to make the coupling, and the engine moved backwards two and one-half or three feet, and that movement caused him to become pinched between the bumpers, and he died some eighteen hours after the injury in consequence thereof.
The widow of Fisher became administratrix of his estate, and brought this suit, and recovered $1,000 for the estate for his pain and suffering, and $5,000 for the widow and next of kin.
The case turned on whether there was a defect in the engine causing it to move or “walk,” as the trainmen call it, after it was brought to a stand and without any action on part of the operatives to cause it to move. There is substantial testimony tending to prove that steam leaked into the cylinders of this engine, that such leakage would cause the engine to “walk,” and that this fact was reported to the foreman in charge of repairs, and that proper repairs of the engine had not been made to prevent this. On the other hand, there was abundant evidence contradictory of this and tending to establish that engine 722 was in perfect condition at the time of the accident, that there was no leakage in throttle or lubricator or other part which would cause steam to get into the cylinders and move the engine after it was brought to a stop.
A serious attack is made upon the sufficiency of the evidence to sustain the verdict, but, as above indicated, there was a jury question here, and it was settled against appellant.
The first question of law argued is the alleged error of the court in denying a continuance and proceeding with the trial at a term of court during which the transcript on change of venue was filed.
The change of venue had been taken in time for the transcript to have been filed in apt time for trial at the term in question, and the attorneys agreed upon the date set, and the transcript was filed before that day, and after the agreement aforesaid the parties had ample time, to prepare for trial, so far as the record shows. The motion for continuance failed to show diligence, and merely alleged in general terms due diligence, without setting forth what efforts had been made to get the witnesses present or their testimony or what reasons prevented the attendance of the witnesses or why their depositions had not been taken. The evidence of these witnesses was only cumulative to other testimony of appellant tending to prove the same facts. There was no reversible error in this. Railway Company v. Sweet, 57 Ark. 287; Jackson v. State, 54 Ark. 243; Pratt v. State, 75 Ark. 350; Gallaher v. State, 78 Ark. 299.
Objection is made to one of the instructions, not as abstractly wrong, but as inapplicable to the facts. The court is satisfied that the facts were sufficient to go to the jury, and this instruction did not submit anything not fairly deducible from the evidence.
The instruction on the measure of damages in case of recovery used the terms “widow and next of kin.” The evidence showed that Fisher left a widow and no children, and his father was his next of kin. There was evidence showing contributions to the wife and pecuniary loss to her from her husband’s death, but none to the father. It is argued on the one hand that it was error to send the consideration of the father’s claim to the jury, and on the other hand that; the court having used the language of the statute in the instruction, if any part of it were inapplicable, appellant should have made a specific objection. It is not necessary to go into that question. The verdict is less than the evidence justified the jury in awarding to the widow, and hence there could have been no prejudice to appellant in allowing a consideration of the father’s claim when there was no evidence of pecuniary loss to him, but evidence óf a greater amount recoverable by the widow than this verdict.
It is also insisted that the evidence shows the injury was due to negligence of the train operatives in charge of the engine in permitting, or causing, the engine to move. But this question was sent to the jury under a proper instruction given at the instance of appellant.
Finding no error, the judgment is affirmed. | [
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McCulloch, J.
This is an action at law brought by appellants, who were heirs at law of Robert Magness, deceased, against appellee, who is the widow of said decedent, to recover possession of a -tract of land owned by said decedent. The land in controversy had been duly assigned to the widow as part of her dower. She failed to pay the taxes assessed against it for the year 1900, and the same was sold by the tax collector on June 11, 1901, and purchased by one of the appellants, who received a deed therefor from the county clerk after the expiration of the statutory period of two years allowed for redemption of lands sold for taxes.
The tax sale was illegal and void by reason of the failure of the county clerk to make a certified record, before the day of sale, of the list of lands and notice of sale, as required by the statute (Logan v. Eastern Arkansas Land Co., 68 Ark. 248; Hunt v. Gardner, 74 Ark. 583), but appellants assert that the purchase at the void tax sale was in effect a payment of the taxes legally assessed, and that appellee, by failure to pay the taxes and by suffering 'the land to be sold therefor, forfeited her life estate therein.
The statute under which it is claimed appellee forfeited her estate in the land reads as follows:
“If any person who shall be seized of lands for life, or in right of his wife, shall neglect to pay the taxes thereon so long that such lands shall be Sold for the payment of taxes, and shall not within one year after such sale redeem the same according to law, such person shall forfeit to the person or'persons next entitled to such land in remainder or reversion all the estate which he or she, so neglecting as aforesaid, may have in said lands, and the remainderman or reversioner may redeem the lands in the same manner that other lands may be redeemed after being sold for taxes; and, moreover, the person so neglecting as aforesaid shall be liable in an action to the next entitled to the estate for all damages such person may have sustained by such neglect,” Kirby’s Digest, § 7132.
In Swan v. Rainer, 59 Ark. 364, the facts were that the life tenant, while in possession of the land, failed to pay the taxes and purchased it at the tax sale, and the court held that the purchase amounted only to a payment of the taxes, that the sale was therefore void; and that no forfeiture of the estate of the life tenant was worked under the statute in question. The court there said: “The sale being void and the taxes paid, there was nothing to redeem and consequently no redemption was required.”
It follows from this that a void sale does not work a forfeitore to a remainderman of the estate of the life tenant. The statute in question manifestly has reference only to a valid sale. And it is a sale for taxes, not a mere failure to pay taxes within the time prescribed by law, which works a forfeiture, as the statute provides that if the life tenant “shall neglect to pay taxes thereon so long that such lands shall be sold for the payment of taxes, and shall not within one year after such sale redeem the same according to law, such person shall forfeit * * * all the estate which he or she, so neglecting as aforesaid, may have in said lands.” The manifest purpose of the statute is to afford the remainderman an opportunity to redeem during the last of the two years allowed by law for redemption of lands from a valid tax sale and to cause a forfeiture of the estate of the life tenant for failure to redeem from such sale within the first year.
Counsel for appellant rely upon the case of Stetson v. Day, 51 Me. 434, as decisive of the question that in an action for waste committed by allowing the premises to be sold for taxes, the life tenant can not show the illegality of the sale in order to defeat the action. That decision was based upon the Maine statute declaring generally a forfeiture of the life tenant’s interest in the premises for waste as well as a right of action to recover damages for waste. The action was one to recover damages only, and the court held that damages could be recovered for the waste, notwithstanding the invalidity of the sale.- Aside from any statute on the subject, it is the duty of a life tenant to pay current taxes on lands, and the failure to discharge such duty is an act of waste for which the remainderman may recover any amount paid out by him in satisfaction of the tax lien, but it does not authorize a recovery by the remainderman of the lands held in life tenancy.
Decisions of courts of some other States are brought to our attention which hold that a life tenant by failure to pay taxes forfeits his estate, but it is found that those decisions are based upon statutes different from- our statute in question, and which expressly provide for such forfeiture. McMillan v. Robbins, 5 Ohio, 28; Dozier v. Gregory, 46 N. C. 100; Stetson v. Day, 51 Me. 434.
The Statute of Gloucester (6 Edw. I, c. 5) provided for a forfeiture of the life .tenant’s estate for any act of 'waste, and there is some conflict in the authorities in this country whether, in the absence of legislation, that statute is in force as- a part of the common law; but the weight of authority is, we think, against declaring forfeiture of .the estate on account of waste. Woodward v. Gates, 38 Ga. 205; Phelan v. Boylan, 25 Wis. 679; Robinson v. Miller, 2 B. Mon. (Ky.), 284.
Be that as it may, however, we entertain ho doubt that our statute supersedes the common-law rule as to forfeiture for waste in failing to pay taxes.
Judgment affirmed. | [
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Hill, C. J.
Few rented land to Wilson and Reese, who were to cultivate it in cotton and corn for one-half of the crop. Mitchell took a crop mortgage from Wilson and Reese for supplies furnished them. The tenants failed to properly cultivate all the land and gather the crop, and Few took possession of the crop and gathered it, and this is a contest between him and Mitchell over it. The first contention is that Few should have been allowed one-half the expenses of gathering the crop, but the chancellor’s finding in effect gave him that and more, and he has no complaint on that score. The other contentions are for damages against the tenants claimed to be prior to the mortgagee’s rights. Few contends for $50 damages for neglect of the crop and. for rental value of lands not cultivated in violation of the contract and for other sums for violations of the contract. The landlord’s lien is primarily for rent alone, and has been extended by statute to advances of necessary supplies, money, etc. Kirby’s Digest, § § 5032-3. It can not be extended beyond the terms of the statute, and the claims here asserted are not within the statute. The right of a third party has intervened, and he can demand that his mortgage be given priority over other claims which do not fall within the statute.
The chancellor had a correct view of the law, and his findings of fact are sustained by a preponderance of the evidence.
Affirmed.
McCulloch, J., not participating. | [
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Hill, C. J.
This is a petition of J. M. Nunn and others for a mandamus to require Honorable Edward D. Robertson, as chancellor in the Woodruff Chancery Court, to render a decree in favor of the petitioners against Fred Becton and other defendants in a case determined in this court, wherein these petitioners were the appellants and Lynch, as guardian of said Becton, and the said Becton and others were appellees, which case was reported as Nunn v. Lynch, 73 Ark. 20.
The response of the chancellor sets forth fully and in detail a history of the litigation, and says that no notice of the filing of the mandate appears to have been given the defendant, Fred Becton, and no bond was filed as required by section 6254 of Kirby’s Digest. These were not the grounds for a refusal to enter the decree, but the reason thereof is thus stated in the chancellor’s response:
“The chancery court on its own motion found from inspection of the record that the said Fred Becton was and had been during, the progress of the suit a minor and a non-resident of the State of Arkansas; that the warning order had been properly published against him, but that no guardian ad litem had been requested by the plaintiffs or appointed by the court; and that no defense had been made for him as required by law. It therefore denied the motion for a decree on the mandate and on the amended or supplemental bill, and made an order continuing the cause with leave to the plaintiff to have a guardian ad litem appointed. ’As the court was unwilling to decide the cause piecemeal, it continued the case as to all the parties.”
It is doubtful whether the chancellor, even when there was a lack of jurisdiction of a person, had a right to open that question, and be permitted to go back to the original record and determine a matter which was apparently determined by this court. The opinion in this cause states that the litigation was “a contest between the heirs at law of Sallie A. Becton and the devisees of John W. Becton over a tract of land in Woodruff County.” The record showed that the minor, Fred Becton, was one of the two devisees in the will of John W. Becton, and therefore he was as much designated as a party to the contest as if he had been mentioned by name in the opinion. The reversal of the case was on the ground that the chancery court erred “in finding for the defendants and in dismissing the plaintiffs’ action for want of equity.” Turning to the record of the judgment which was reversed, it is found in the essential part to read as follows:
“Upon consideration of the whole record herein and the arguments of counsel, the court finds that there is no equity in the plaintiffs’ complaint and amended complaint, and finds for the defendants. It is therefore considered by the court, ordered, adjudged and decreed that this action be and the same is dismissed for want of equity, and that the defendants, R. C. Lynch, as executor, Kate W. Becton and Fred B. Becton, do have and recover of and from the plaintiffs, J. M. Nunn (and naming twenty-four others),” etc.
The order of this court was that there be a judgment entered in favor of said plaintiffs against said defendants. This necessarily included the defendant for whom judgment had been rendered by name in the decree appealed from. Therefore it is plain that the court in its opinion and judgment directed a decree to be entered against the minor, Fred Becton.
As stated, it is doubtful whether it was open to the chancery court to inspect the record for the purpose of ascertaining whether or not this court erred in assuming jurisdiction of Fred Becton, for the court did assume jurisdiction of him. However, it would not do to determine this case upon that theory, for the court is satisfied that it did have jurisdiction, and will put the decision on that ground, and not determine the abstract' question (which has been argued) whether or not a trial court can refuse to enter judgment according to a mandate when it finds the appellate court erred in assuming jurisdiction of a party.
The facts in regard to Fred Becton’s appearance in the case are briefly these: An ejectment suit was brought in the Wood-ruff Circuit Court by the Nunns, who were heirs at law of Sallie A. Becton, against R. C. Lynch, as executor, and Kate W. Becton, as executrix, of the last will and testament of John W. Becton, Fred Becton, a minor, and R. G. Lynch, as guardian of Fred Becton. Service was had upon all of the defendants except Fred Becton, and before any service wás obtained upon Fred Becton two answers were filed, a joint answer by R. C, Lynch, executor, and Kate W. Becton, executrix, and the other by R. C. Lynch, as guardian of Fred Becton. At this time Fred Becton was not properly before the court, notwithstanding which his guardian filed the answer as aforesaid. This answer was not an appearance. Freeman v. Russell, 40 Ark. 56. Subsequent to this an affidavit was filed, stating that Fred Becton was a nonresident of the State of Arkansas. Proper warning order was issued, published, and proof of publication filed. The Nunns filed an amended complaint, and thereupon the defendants filed motion to transfer the cause to equity, and by consent it was transferred to the Woodruff Chancery Court. While the case was pending in the chancery court, the defendants, R. C. Lynch and Kate W. Becton, as executors of the will of John W. Becton, Fred Becton, a minor, and R. C. Lynch, as guardian of Fred Becton, filed their joint answer to the complaint and amended complaint, in which this appears:
“Reiterating the defenses and allegations set forth in the separate answers filed in the Woodruff Circuit Court in this cause on the 22d day of August, 1900, on behalf of the executors of the last will and testament of John W. Becton and of the minor heir of John W. Becton, and his guardian, R. C. Lynch, state the following:” etc., and proceed to deny all the allegations of the complaint, and to set up title in the devisees of John W. Becton, one of whom was the minor, Fred Becton. Upon these pleadings and further pleadings traversing all new matter alleged, the suit progressed to decree, which was appealed from, and which was reversed.
The evidence showed that John W. Becton, the father of Fred Becton, was a citizen and resident of Woodruff County, and died there, leaving Fred Becton, an infant of tender years, as his only living child. It was also in evidence that R. C. Lynch was appointed the guardian of said minor by the probate clerk of Woodruff County, and letters of guardianship duly issued to him, which were introduced. He made defense for the minor after his appointment as guardian. It was not necessary to have a guardian ad litem appointed in this case. The statute provides that the defense of an infant must be by his regular guardian, or by guardian appointed to defend for him where no regular guardian appears, or where the court directs a defense by a guardian appointed for that purpose. No judgment can be rendered against an infant until after a defense by a guardian. Kirby’s Digest, § 6023; Moore v. Woodall, 40 Ark. 42. There was a real defense made by the statutory guardian here, and he filed an answer in behalf of his ward after his ward had been properly served constructively, and expressly adopted an unauthorized answer which he had previously filed.
It is argued that these answers were in behalf of R. C. Lynch as guardian of Fred Becton, and not answers in behalf of the minor. But that position is untenable. Lynch and Mrs. Becton filed answer in their capacity as executors, and then Lynch filed a separate answer solely in his capacity as guardian and in behalf of his minor and not in behalf of himself in regard to his duties as guardian, but in assertion of the rights of the ward as one of the owners of the property.in suit.
These answers make it too plain for doubt that Lynch was answering and did answer in behalf of his ward, and not merely a personal answer touching his own relation to the land by reason of his guardianship. He denied all claims of the plaintiffs to the property as against his ward, and made an active defense in behalf of his ward as the owner of the lands, a defense so forcible that it succeeded in the chancery court.
It is argued that the record shows a condition impossible to support jurisdiction; that Lynch was guardian in Woodruff County of the minor defendant, and the minor defendant was shown to be a non-resident, and was proceeded against as such. But there is no inconsistency between these positions. It is asserted in argument (and alleged in an answer after the remand of the case) that the minor, Bred Becton, was a resident of North Carolina, and has a guardian there, and it is argued therefrom that the appointment of Lynch as the guardian in Woodruff County was invalid, and he could not legally answer for Bred Becton; but that does not follow. It is provided by statute that, if a minor residing without this State shall have an estate in this State, the court of probate in the county where the estate, or any part of it, is situated shall appoint a competent person to be curator of the-estate. Kirby’s Digest, § 3771. There is no difference in the duty of curators and guardians in the prosecution and defense of suits in behalf of their wards. Section 3770, Kirby’s Digest. Section 6023, Kirby’s Digest, is from the Civil Code adopted in 18^9, and section 3770, Kirby’s Digest, is from act April 23, 1873, and, of course, if there is any inconsistency, the former must yield. Hence, if Bred Becton be treated as a non-resident of the State, as found by the chancellor, doubtless from the affidavit for warning order, the appointment of a curator or guardian of his estate was proper, and it was proper for his curator or guardian — the name under which he is called makes no difference — to make the defense for him which was made in this case.
But the evidence in this case shows indisputably that John W. Becton, the father of this infant, died a resident and citizen of Woodruff County. That fixed the status of the minor, and made him a citizen of Arkansas, notwithstanding he may have been residing elsewhere. This court has said:
“But the last domicil of the deceased father was in that district, and by reason thereof it was the legal residence of the minor son, John. Rollinson, and, according to the general rule, so remained, and could not be changed or removed by his own act until he reached his majority (citing many authorities).” Young v. Hiner, 72 Ark. 299. The domicil of the mother, if she be living after the father’s death, determines the domicil of the minor. Rodgers on Dom. Rel. § 656. There is no evidence in this record showing change of status of the mother after death of the father. Hence the domicil of this minor, so far as this record shows, was in Woodruff County, and his status was fixed there by reason of the domicil of his father, and the fact that the minor was absent from his county or from his State would not change his status, and therefore there was no inconsistency in having a guardianship in Woodruff County for a minor whose legal status fixed his domicil in that county though he at the time of suit may have been a non-resident of the State.
For these reasons it is apparent that the Woodruff Chancery Court, and this court upon appeal, had jurisdiction of the person of the minor defendant, Fred Becton, by reason of the constructive service upon him and his appearance thereafter by his guardian, who made defense for him.
The point is made that no notice was served upon the minor, Fred Becton, of the filing of the mandate. That is only necessary where a trial is demanded at the first term of the court after the reversal of the case. Kirby’s Digest, § 6174.. The record shows that.a motion for judgment upon the mandate was not made until the third term after the reversal of the cause and the filing of the mandate in the court.
The point is also made that the bond required by section 6254, Kirby’s Digest, was not given. This bond is only required in case of constructive service where there has been no appearance and no defense, and is not applicable here where there were appearance and defense.
Counsel for Dynch raise another question not presented by the chancellor, and that is that the claim for rents and damages is res judicata, and mandamus should not be awarded to compel the chancellor to consider that question. They say that the claim therefor was made in the former hearing and denied by the court, and that decision reversed, and no direction given to find for plaintiffs on that account, and therefore that question was decided against appellants. This position is not tenable.
The chancery court, in the first instance, did not go into this subject, because it found the land belonged to the defendants, and not the plaintiffs, and dismissed the action. This court reversed that judgment, and directed decree for the plaintiffs, and that necessarily implied that the court should enter decree for the recovery of the land and adjudicate according to equity jurisprudence whatever rights would flow from such recovery. This court was.not undertaking.to settle any of those matters of rents, damages or other incidents consequent on the recovery of the land, because the chancery court had not reached the point where it was called upon to act upon them. When the decree is entered for the land, then these others matter will properly come for consideration, and must, and doubtless will, be properly considered and adjudicated. Mandamus is not a remedy to create a right, but only to enforce an .existing- right, and the court finds it applicable to this case. This court decided, sub silentio, it is true, that Fred Becton, the minor devisee in the will of John W. Becton, was a proper party to the proceeding, and directed a judgment entered against him and others. The chancery court became convinced tihat he was not properly made a party to the proceedings from the same record which was before this court. Without deciding whether he could consider this matter or not, it is plain that the minor was properly before the court, and the .chancery court should have so held, if it went into the question at all.
In other words, there are no legal obstacles to the entry of the decree pursuant to the mandate, and the. fact that the chancellor erroneously finds an obstacle will not prevent the rendition of judgment and the forcing of further litigation and a subsequent appeal to correct it, but in such cases mandamus lies — not to control any discretion or judicial determination, 'but to enforce the proper fulfillment of the directions of this court.
The mandamus will issue commanding the chancery court to enter the judgment against defendants in the cause, including the minor Fred Becton, and to hear and consider the claim for rents and damages and other matters properly cognizable in ■equity on a judgment for the recovery of real estate. | [
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Hill, C. J.
This was a divorce suit; each party seeking a divorce on the ground of cruel treatment within the meaning of paragraph 5 of section 2672, Kirby’s Digest. The chancellor decreed in favor of the husband, and the wife appealed, and since the submission of the case the husband died.
Of course, death terminates a divorce suit; but where property rights depend on the correctness of a divorce decree, and an appeal has been taken from'it, it is the duty of the appellate court to review the decree in order to settle the property rights. Nickerson v. Nickerson, 34 Ore. 1; Danforth v. Danforth, 111 Ill. 236; Dower v. Howard, 44 Wis. 82; McBee v. MeBee, 1 Heisk. (Tenn.), 558; Thomas v. Thomas, 57 Md. 504. The rule is otherwise where the cause has been submitted to the trial court, and one party dies before decree. No decree can be entered after death of a party to such suit. 2 Nelson on Marriage and Divorce, § 729a; Wilson v. Wilson, 73 Mich. 620.
An entirely different principle prevails where a decree has actually been rendered during the lifetime of the parties which affects and determines property rights. It then becomes a -mere' property contest between the wife and heirs at law, and the heirs at law are necessary parties to the proceeding, unless the case has been submitted. Nickerson v. Nickerson, 34 Ore. 1; Thomas v. Thomas, 57 Md. 504. When the case has been submitted before death of the party, it is not necessary to bring in the heirs, for the decision relates back to the date of submission. Mead v. Mead, 1 Mo. App. 247; Danforth v. Danforth, 111 Ill. 236.
The justice of these principles is manifest. ' If it were otherwise, through an error of the chancery court a wife would be deprived of homestead and dower rights because death has overtaken the husband before the appellate court has had an opportunity to correct the error. Therefore it is the duty of the court to review this decree in order to determine whether there was error in severing'the marriage between these parties prior to Mr. Strickland’s death.
The evidence has been carefully examined, and a sad situation is revealed. There were two children by this marriage and two children by a former marriage of Mr. Strickland, and he seemed to have a great affection for all of his children. An implacable animosity grew up between Mrs. Strickland and her stepchildren, one now a young lady and the other a boy of seventeen or eighteen years of age. Mr. Strickland was afflicted with locomotor ataxia for several years before his death, and Mrs. Strickland is an extremely nervous woman, due to ill health dating back to the birth of her children. Each was possessed of a quick temper, and given to violence of speech. This unfortunate situation rendered domestic peace — to say nothing of happiness— impossible. Mr. Strickland’s testimony makes out a complete case of cruel treatment entitling him to a divorce, and he is corroborated by his elder children, a friend or two and by some letters written by Mrs. Strickland after the separation. Mrs. Strickland’s testimony makes out a complete case of cruel treatment entitling her to divorce, and she is corroborated by her father, brother and other relatives and friends. Each denies or attempts to explain away the charges made by the" other.
In a case not unlike this one, Chief Justice Cocicrill said: “It is not necessary to recapitulate the evidence and determine whether the conduct of either would be sufficient to warrant a divorce, provided the other was less guilty. It is immaterial, for we find them equally in fault, and * * * leaves neither in a position to demand interposition of the court.” Cate v. Cate, 53 Ark. 484.
Recent applications of the same principle — and the principle controlling in this case — are found in Womack v. Womack, 73 Ark. 281, and Healy v. Healy, 77 Ark. 94.
The divorce should not have been granted.
Application is made for the allowance of an attorney’s fee for services in prosecuting this appeal in behalf of the wife. Such allowances are usually proper, and form a species of temporary alimony, and are granted for like reasons. 2 Nelson, Marriage and Divorce, sec. 875. A refusal on part of the husband to obey such orders gives ground for attachment for contempt. 2 Nelson, Marriage and Divorce, § 939. This is not a divorce suit now in the proper' sense of the term, but a mere review of a divorce decree to ascertain its correctness in order to fix property rights. The reasons usually appealing to a court in favor of such allowances do not appear here, and the usual means of enforcing such order no longer exist.
There is no reason why appellant should not pay her counsel, just as ordinary litigants over property rights must do.
The divorce decree appealed from is reversed, and judgment- will be entered to that effect as of date of the submission of the appeal. | [
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Hill, C. J.
This was an action for killing two cows of appellee by appellant’s train. The killing by the train being established, the burden of proof shifted to appellant to exonerate itself from the presumption of negligence. Little Rock & F. S. R. Co. v. Payne, 33 Ark. 816; Railway Company v. Taylor, 57 Ark. 136; St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236; St. Louis, I. M. & S. Ry. Co. v. Bragg, 66 Ark. 248.
The appellant attempted to discharge this burden. • It proved by the fireman- that he was in the discharge of his duty of putting in coal when the stock were killed, and therefore he was not negligent in not seeing them in time to have prevented the injury. The engineer testified that he failed to discover the stock by reason of a cut and curve preventing him seeing them farther than about fifty feet from the point he struck them. The appellee produced three witnesses familiar with the ground who testified that at the point the stock were struck they could have been seen for a distance of from 75 to 100 yards. This presented a proper issue for a jury. It is not a case calling for the application of St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514, and Kansas City Southern Ry. Co. v. Lewis, infra, p. 277, wherein it is held that a jury can not be. permitted to arbitrarily disregard unimpeached, uncontradicted and undisputed evidence which is consistent and reasonable in itself. It was merely a question whether the jury would believe the engineer or the three other witnesses on a vital question.
Judgment affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by H. P. Gorman, administrator in succession and the heirs of Mary A. Cole, from a judgment of the chancery court enjoining them from enforcing a judgment of the circuit court which the administrator had recovered against E. Bonner and W. H. Coffey, bondsmen of L. P. Featherston, the first administrator of that estate.
The chancellor found that in the final settlement which the probate court made of the accounts of L. P. Featherston as such administrator the probate court charged him with $1,000 as the proceeds of the sale of the residence property of Mrs. Cole, when the fact was that Featherston did not sell such property as administrator or under an order of the probate court, but sold it as the agent of the heirs of that estate who were the owners of it. The chancellor found that this judgment of the probate court charging Featherston with the proceeds of such sale was there-, fore void and in law fraudulent as to the bondsmen of Featherston. But it does not follow, because the judgment in the circuit court was based on a void or fraudulent judgment of the probate court, that it is also either void or fraudulent. When these parties were sued in the circuit court, they should have set up any defense they had against such action, whether the same was legal or equitable. If the judgment of the probate court was fraudulent or void, that could have been alleged.
A defendant can not, under the Code system of procedure, let judgment go against him at law upon a legal liability, and then enjoin the judgment in equity upon equitable grounds which were known before the judgment at law. The effect of the Code procedure has modified,, and to a large extent rendered obsolete, the ancient jurisdiction of equity over judgments at law. The rule now is that parties must litigate the whole controversy in one action, and a defendant who has an equitable defense to an action at law is not now without a remedy against such action, for he can interpose such defense by answer or counterclaim, and, if necessary, have the case transferred to the chancery court. Kirby’s Digest, § 6098. If he fails to do this, and allows judgment at law to go against him, he may find that his defenses have been cut off by such judgment, and that he is without a remedy, either in law or equity. Reeve v. Jackson, 46 Ark. 272; Ward v. Derrick, 57 Ark. 500; Moore v. McCloy, 70 Ark. 505; Daniel v. Garner, 71 Ark. 484.
It is true that Bonner, the plaintiff in this action to enjoin the judgment at law against him, did undertake to set up the same matters on which he bases his right to relief here as a defense to the legal action. He undertook to show that the probate court had improperly charged Featherston as administrator $1,000 as proceeds of land which he did not sell as administrator, but there was no allegation in the answer that Featherston did not have due notice of this proceeding in the probate court. The judgment of the probate court recited that he appeared by his attorney, while the answer of Bonner simply alleged that neither he nor his bondsmen were present at the time the probate court made the settlement. This did not show that he was not duly ■served with notice, or that the recital that he appeared by attorney was not true. If he appeared by attorney, he had a .plain remedy by appeal, and on that or some other ground a demurrer was sustained to the answer and counterclaim of the sureties alleging that the judgment of the probate court was void as to them. They pleaded no further, and final judgment went against them at law.
Counsel for appellants have labored to show that the judgment of the probate court was substantially correct, by reason of the fact that the court, while it made improper charge against the administrator, also allowed him improper credits. But that is now immaterial, for it was settled by the judgment of the circuit court which was based-on this order of the probate court. That judgment at law was rendered by a court of competent jurisdiction against parties who had been duly summoned and who appeared, and made defense. If there were errors in that proceeding, a court of equity has no power to correct them, for such courts do not sit as courts of review upon the proceedings of the courts of common law. Reeve v. Jackson, 46 Ark. 272.
It is not alleged or shown that there was any fraud in the procurement of the judgment at law, and we see no valid reason why it should be enjoined. The judgment of the chancery court to that effect will be reversed, with an order entered to dismiss the complaint for want of equity. | [
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Riddick, J.
This case comes before us by a writ of certiorari to review the findings and judgment of the judge of the First Judicial Circuit giving to Hines Battle, of Lee County, the custody and control of Katie King, a minor.
The facts are as follows: One Anna King, a young and unmarried negro woman of Lee County, became the mother of a child, which she named Katie King. When this child was nine months old, its mother placed it in the custody of Hines Battle and his wife, two negro neighbors. Hines Battle testified that the mother gave the child to them to have as their own. On the contrary, Anna King testified that she was compelled to part from the child by her father with whom she made her home at that time; that she gave the child to Hines Battle on that account, “intending to take back it in the future.” Hines Battle and his wife took charge of the child, supported her and kept her until she was over eleven years of age. During this time the mother continued to live not far away, and visited the child occasionally, and, s:he says received visits from it. About two years after she parted with the custody of the child Anna King married one Lipsey. She and her husband have no children, and some eight or nine years after their marriage, and when the child Katie was over eleven years old, they concluded to take the child to their own home. Its mother, Anna Lipsey, went to the home of Hines Battle, and told Hines and his wife that she had come for her child. Battle and his wife had at that time no children of their own living with them, and had become attached to this child, and objected to parting from it. But, after discussing the matter with the mother, and finding her determined to regain the custody of the child, they agreed that she might have the child provided that she would pay them forty or fifty dollars to remunerate them for their care of the child. The mother recognized the justness o,f the claim, and expressed a willingness to pay, but did not have the money, and said that she would pay as soon as she obtained •the money. -She was then allowed to take the child, probably on her agreement to pay something to remunerate them for the trouble and expense they had been put to in caring for it during its early infancy. The mother kept the child nearly a year, but paid -nothing. Battle then began to make claims to the custody of the child. Anna L'ipsey and her husband thereupon induced a merchant to offer Battle twenty dollars provided that he would make no further claim to the child. He refused, but said that he would waive his claim if forty dollars were paid. The merchant refused to pay this sum, and soon afterwards Battle procured a writ of habeas corpus from the county judge of Lee County, who, upon hearing the evidence, gave him the custody of the child. The case was then brought for review before the circuit judge, who also gave judgment in favor of Battle. The evidence adduced before the circuit judge was taken down and filed with the circuit clerk, and the case is now •before us for review.
If the decision of this case turned on a disputed question of fact, we should hesitate to disturb the findings of the learned circuit judge, reinforced as they are by the judgment of the county judge on the same point. But it is seldom that a case of this kind comes here in which there is so little difference between the witness as to the facts of a case. There is no substantial difference between the witnesses as to the material facts of this case, and the question is one of law and of judicial discretion upon undisputed facts.
In questions of this kind concerning the custody of infants the - main consideration that should influence the court is the best interest and well-being of the child. Coulter v. Sypert, 78 Ark. 95. The courts may remove a child from the custody of its parent, but this will only be done when it is plainly necessary to secure the present and future well-being of the infant.
The mother’s right to the custody and control of her illegitimate child is superior to that of any one else. 5 Cyc. 637. This right is founded on the fact that the natural love and affection of a mother for. such a child would probably be greater than that of a.ny one else, and that the best interest of the child will generally be subserved by allowing it to remain in her custody. Now, in this case it is shown by the -testimony of the witnesses on both sides that the mother and her husband are as able to take care of, provide for and educate this child as the petitioner, Hines Battle, and his wife. The evidence shows that she is attached to the child as a mother should be, and that during the year she has had the custody of it she has treated it well, clothed it properly, and sent it to school. The same thing may be said of the conduct of the petitioner and his wife, for while the girl, Katie King, testified that Hines Battle and his wife had not always treated her well, the other witnesses showed that this was not so. They also clothed and fed her, and sent her to school. But, as before stated, the right of the mother to the custody of her child should be respected, unless there is some reason to believe that the interest of the child requires that its custody should be given to another. It is a matter of great delicacy for the courts to take the custody of a child from .its parent, and, as before stated, this should only be done when the well-being of the child imperatively demands it. Courts not only respect the rights and feelings of the parent, but also when the child is of sufficient age they give consideration to its wishes. The child in this case is nearly thirteen years of age. She expressed a decided preference to dwell with her mother. So far as this evidence shows, this mother and child are sincerely attached to each other, and this feeling should not be disregarded, nor the ties of affection sundered, unless the welfare of the child clearly demands that she be separated from her mother. We see nothing in the evidence that requires it.
The witnesses for both petitioner and respondent unite in saying that this mother and her husband are respectable negroes, industrious and capable of caring for the child as well as petitioner Battle and his wife. All -of them say that the only thing they ever'heard against this woman is the fact that she gave -birth to this illegitimate child. But the petitioner has no advantage of her in this respect, for he says that he was supposed to be the father of the child. The woman denies this, and testified that she had never sustained any immoral relations with petitioner, and that the father of the child was one Coke, to whom she was engaged to be married, but who died before the marriage was consummated. But this difference between them is immaterial, for the rights of the mother of a bastard child to its custody is superior to that of .its -putative father. This rule giving the right of custody of a bastard child to its mother shows that the mere fact that a woman has given birth to a bastard is no reason why she should be deprived of its custody. As we have said, so' far as character and ability to support is concerned, there is no reason shown why this woman should be deprived of the custody of her child in favor of the petitioner.
There is only one other point to be noticed, and that is that she turned over the child to petitioner and his wife when it was an infant only nine months of age, and permitted her to remain with them until it was over eleven years old. . Ifv she had never regained custody of the child, and this was a proceeding by her to .recover possession of the child from them, and the child was unwilling to go with her, it might be questioned as to whether the courts should grant her request, for the court might be loth to, separate the child from those to whom it had become attached by long years of association. See Coulter v. Sypert, 78 Ark. 95; Washaw v. Gimble, 50 Ark. 352. But this child has not been adopted by petitioner, and the mother can not, by the mere gift of her child, release herself from the obligation to support it or deprive herself of the right of its custody. Washaw v. Gimble, 50 Ark. 352; Beller v. Jones, 22 Ark. 92. Nor was she at. the commencement of this case asking the court for the custody of the child. The evidence shows clearly that the petitioner and his wife surrendered the custody of the child to its mother upon her promise to recompense them for the expense and care they had bestowed upon it. They allowed it to remain in her custody for nearly a year. But, although petitioner often reminded her of her promise, she paid nothing. Even after petitioner was preparing to take steps to recover custody of the child, he offered to waive any further claim to it if she would pay forty dollars to cover the expenses above referred to, She offered through an agent to pay twenty, but he declined the offer, and started this proceeding before the county judge to recover custody of the child. It is plain that, if the forty dollars had been paid, this litigation would never have commenced, and there is some ground to suspect that the' moving cause of this proceeding is not so much love of this child on the part of the petitioner as the failure of the respondent to pay this money. But courts never permit the writ of habeas corpus to be used for such purposes. The petitioner, having voluntarily surrendered to its mother the custody of her child, and allowed it to remain with her for nearly a year, has no right to disturb' such custody and sunder the ties of affection thus reunited by his consent because its mother has failed to pay him for the expense of its maintenance. Besides, if it is true, as petitioner intimates, that he was the father of this illegitimate child, he only discharged his duty in helping to- rear and educate it.
On the whole case, we are of the opinion that the circuit judge 'should have set aside the order qf the county judge and restored the custody of the child to its mother. The order of the circuit judge is therefore quashed, and an order will be entered here directing that the child, Katie King, be delivered to the mother, the respondent, Anna Ripsey. | [
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McCulloch, J.,
(after stating the facts.) 1. The initial question for determination is as to the amount of appellant’s liability, if any, on the bond and the two renewal receipts— whether said writings constituted three separate obligations to indemnify the assured in the sum of $5,000 each against loss accruing during the respective years, or whether they constituted a single liability for the sum of $5,000 extending over the periods covered thereby, and indemnifying the assured against loss only to the extent of that sum for the whole period.
It is now well settled that the bond of a surety company, like any other insurance policy, is to be most strongly construed against the insurer. The language of the bond is that selected and employed by the insurer, and, when doubtful or ambiguous, must be given the strongest interpretation against the insurer which it will reasonably bear. Anderson v. Fitzgerald, 4 H. L,. Cas. 484; American Surety Co. v. Pauly, 170 U. S. 133; Guarantee Co. v. Mechanics’, etc., Co., 183 U. S. 402; Supreme Council etc., v. Fid. & Cas. Co., 63 Fed. 48; Remington v. Fid. & Dep. Co., 27 Wash. 429.
The language of these instruments is not susceptible of any reasonable interpretation other than that it was intended to extend the liability over the period of the renewal, but to limit the total liability fo.r the whole period of the renewal contract to the amount named. It is so expressly stipulated in the bond. There is no ambiguity about it. It is plainly stipulated that the bond shall not lapse at the end of the time if renewed, but that “the liability of the surety, however, shall not be cumulative.” What else can this stipulation mean? This construction is, strengthened when we consider all the other terms and conditions of the bond, and it is obvious that only a total liability of $5,000 was contracted. The Supreme Court of Tennessee placed this construction upon a similar bond. First Nat. Bank v. U. S. Fidelity & Guar. Co., 75 S. W. 1076. The learned chancellor held that the bond and renewal receipts constituted three separate bonds, covering three separate and distinct periods. In this he erred. "
2. Was there a breach, on the part of the bank, of any of the conditions of the bond which released the surety?
The application for the last renewal contained the following question and answer, viz.: “In case of applicant handling cash or securities, how often will the same be examined and compared with the books, accounts and vouchers, and by whom?” Answer. “The auditing committee, monthly.” It is claimed that this condition was not performed during the period covered by the renewal. We think the evidence is sufficient to sustain a finding' that the examinations were made by the auditing committee monthly during that period. It is not claimed by the members oí the committee that the examinations were made at precise intervals of one month. On the contrary, some of them state that it was deemed advisable to examine at irregular intervals, or rather upon irregular dates in each month. We do not think that the terms of the warranty, fairly and reasonably construed, required any more than that. Certainly it was not meant that an examination should be made on precisely the same date of each succeeding month, but that an examination should be made at some time during each month. We think this is shown to have been done during the last year.
It is argued that the examinations made by the auditing committee from time to time were not sufficiently searching and accurate to discover defalcations which ought to have been discovered, and that for this reason the surety company was released from liability. The members of the committee were not expert accountants, and appear to have made examinations in good f'aith with the purpose of fulfilling their duty to the bank. The terms of the bond and the alleged warranty in the application do not call for an examination to be made by-a committee of expert accountants. It was only provided that the examinations should be made by the auditing committee of the bank directors. This provision contemplated no moire than just what was done — an examination by a committee of men selected from the ordinary business avocations, reasonably capable of comprehending the condition of the accounts of the bank. It appears that the cashier, Strong, successfully secreted his defalcations from ’these men, notwithstanding the fact that 'they made a reasonably diligent investigation from month to month. The fact that he did succeed in thus hiding his wrongdoing for a time does not demonstrate that the members of the committee failed to perform their duty. If that process of reasoning should be followed out, it would necessarily defeat the objects of the bond. It was from just such a condition of affairs that the bank sought indemnity. As has been well said, “an employer would need no insurance against that close and relentless vigilance which makes stealing impossible.” Hammond, J., in Guarantee Co. v. Mechanics’ Bank, 80 Fed. 766.
It is shown by proof that, during the life of the bond and renewals, Strong acted as secretary of a building and loan association, and also that he was engaged in the fire insurance business, and this is put forth by appellant as grounds of forfeiture on account .of the negative answer to the question in the application whether the employee was “now or about to be engaged in other business or employment than the bank’s service.” The proof shows that he wrote a little fire insurance, and was secretary of the local board of directors of a Tittle Rock building and loan association doing business at DeVall’s Bluff, but that none of those engagements interfered with his work at the' bank — that he attended to that work before or after banking hours. The parties to an insurance or indemnity contract may, by express stipulation, declare warranties of things apparently trivial and unimportant to be material, but such things will not be deemed to be material unless made so by express stipulation. Unless otherwise expressly provided, warranties will be deemed to refer to important and .material matters calculated to affect the risk, not to unimportant ones which have no effect or bearing upon the risk. Franklin Life Ins. Co. v. Galligan, 71 Ark. 295; Providence Life Assurance Society v. Reutlinger, 58 Ark. 528; Home Mutual Life Assn. v. Gillespie, 110 Pa. St. 84; Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Wilkinson v. Connecticut Mutual Life Ins. Co., 30 Iowa, 119. The question propounded in the application manifestly had reference to some business or employment calculated to interfere with Strong’s duty to the bank or to increase the .risk. It had no reference to the trivial or incidental duties of some other business or employment which did not impose a tax upon the time due the bank or call for the investment of some capital. The other engagements of Strong were too trivial and unimportant to be deemed to have been in contemplation of the parties when the truth of the answers were warranted..
Upon consideration of the whole case, we are of the opinion that the proof does not establish any grounds of forfeiture or breach of warranties or conditions on the part of -the assured, and that the appellant is liable for the defalcation which occurred during the period of the last renewal, to the extent of the amount of penalty of the bond. Those occurring during the preceding periods need not be discussed.
The decree is therefore reversed, and a decree will be entered here against appellant for the sum of $5,000, with interest from August 21, 1903, together with the costs of the court below.
It is so ordered. | [
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Wood, J.,
(after stating the facts.) 1. Appellee in his cross-appeal does not urge in his brief a reversal of the lower court for its ruling in sustaining the demurrer to the first, second and seventh paragraphs of appellee’s cross-complaint. These paragraphs were probably not technically demurrable; but, if the court erred in sustaining a demurrer to these, appellee is not prejudiced, because he refused to make more specific, and it is obvious that the paragraphs were defective in stating general conclusions without setting out any of the facts upon which they were based. Treating the demurrer as a motion to make more specific, the court did not err in sustaining it; and as appellee refused to amend, he can not complain.
2. The sufficiency of the certificate of the clerk in evidence to establish the record of the certificate required by sec.-7086 of Kirby’s Digest is decided in Cook v. Ziff Colored Masonic Lodge, ante, p. 31. The statement made by the clerk on the record is the same in this case as in that.
3. The appellee contends that the land in controversy was redeemed. The statutes prescribing the method of redeeming land sold for taxes are found in Kirby’s Digest, § § 7095-7102, inclusive. Sec. 7095 grants the privilege of redeeming “within two years from and after the sale.” Sec. 7096 provides that, when lands are redeemed, it shall be the duty of the clerk of the county court to insert a minute of such redemption on the record of lands sold for taxes, the date thereof, and by whom made, and sign the same officially. The next section provides that all applications for redemption of lands sold for taxes to the State or individuals shall be made to the county clerk of the county court of the county, etc., in which the land was sold. The next section provides for the deposit with the treasurer of the county of the amount required to redeem according to the certificate of the county clerk showing the amount, and provides that the treasurer shall notify the purchaser that the amount is in the treasury subject to his order. Secs. 7099, 7100 and 7102 are as follows:
“Sec. 7099. Upon the presentation of such certificate of the clerk of the county court to the county treasurer, and upon the payment of the money to the treasurer as aforesaid, he shall give the person making such payment duplicate receipts therefor, describing the land, town or city lot, or part thereof, as the same is described in or upon the certificate of the clerk of the county court aforesaid, one of which receipts shall be registered by the treasurer and immediately filed with the clerk of the county court by the person receiving the same, and thereupon the clerk of the county court shall forthwith cancel the sale and transfer of such land, city or town lot, and such receipt when so filed shall operate as an extinguishment of all .rights, either in law or equity, conferred in any way or manner by such sale.
“Sec. 7100. In all cases where such deposit shall be made within two years from the time of the sale of such lands, town or city lots, or any part thereof, for delinquent taxes, the clerk of. the county court shall, at the request of the person presenting the receipt of the county treasurer for such deposit, note such fact on the back of said certificate, and sign his name thereto.’ When any tract, town or city lot, or any portion thereof, is thus redeemed, or any deposit with the county treasurer is thus made, it shall be the duty of the clerk of the county court to note such redemption or deposit, the date thereof, and by whom made, on his record of tax sales, and sign his name officially thereto.
“Sec. 7101. When any joint tenants, tenants in common, or coparceners shall be entitled to redeem any land or lot, or part thereof, sold for taxes, and any person so entitled shall refuse or neglect to join in the application for the certificate of redemption, or from any cause can not be joined in such application, the clerk of the county court may entertain the application of any one of such persons or as many as shall join therein, and may make a certificate for the redemption of such portion of said land or lot, or part thereof, as the person making such application shall be entitled to redeem.
“Sec. 7102. Lands sold to the State may be redeemed within two years after sale, subject to the same restrictions, conditions and regulations as hereinbefore described in relation to the redemption of lands sold for taxes, by the application to the . clerk of the county court, and payment of the same amount and penalty hereinbefore mentioned, and the taxes which would have accrued thereon if such land or lot had been continued on the tax books and the taxes extended to the county treasurer, and the amount due the State shall be paid by the county treasurer to the county collector, who shall give duplicate receipts therefor, stating in such receipts the amount belonging to each fund separately, one of which shall be immediately forwarded by the treasurer to the Auditor, and the other to the clerk of the county court, who shall make quarterly reports to the Auditor of the amounts due the State on account of redemption of any land sold n-'e State as herein provided. It-shall be the duty of the clerk of the county court to make a note thereof on the record book of such sale provided for in this act.”
Without setting out the evidence in detail, it suffices to say that it shows that the requirements of the statute have been complied with, except that there was no receipt of the treasurer filed with the county clerk as required by sections 7099 and 7102, showing that the amount necessary for .redemption had been paid into the treasury. It appears from this section that such receipt, when so filed, shall operate as an extinguishment of all rights, either in law or equity, conferred by sale. The clerk, not having the receipt, did not note such redemption or deposit, the date thereof and by whom made on his record of tax sales and sign his name officially thereto, as required by sections 7100 and 7102 of the Digest. Redemption is a privilege conferred by statute. It does not exist independent of it. Thompson v. Sherrill, 51 Ark. 458; Craig v. Planagin, 21 Ark. 322. The requirements of the statute ought to be substantially complied with by those entitled and seeking to avail themselves of the privilege. The court erred in holding that there was a .redemption.
4. The court did not err in transferring this case to the equity court. Appellee alleged and showed title; and if the tax sale was void, and the deed of the Commissioner of State Lands a nullity, as he claims, he had the right to have it canceled as a cloud on his title.
5. The contention of appellee that the land was sold for more taxes than the law requires, in that there was levied upon the land a tax of ten mills for compromise indebtedness, for which it was sold, does not appear to have been presented spe cifically to the trial court. Appellee refused to amend the general allegation of his cross-complaint, under which it could have been presented, had he so amended it. But, inasmuch as he did not give the trial court an opportunity to pass upon that question, no error is presented in the ruling of the trial court concerning it, for no ruling was made.
For the errors indicated the judgment is reversed, and the cause is remanded with leave to amend pleadings, take further proof if so desired, and to proceed in a mariner not inconsistent with this opinion. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by Henry Floyd and Isaiah Bogan from a judgment convicting them of robbery and sentencing them to imprisonment in the penitentiary for a term of five years.
The first question presented arises on. the plea of former conviction filed by the defendants. This plea set up that they had, prior to the finding of the indictment in this case, been convicted before a justice of the peace for the crime of petit larceny, and fined $10 each for the same act complained of in this indictment. The State demurred to their plea of former conviction, and the court sustained the demurrer.
It is well settled that an acquittal or conviction for a minor offense included in a greater will bar a prosecution for the greater, if on an indictment’ for the greater the defendant could be convicted of the less. State v. Smith, 53 Ark. 24; Southworth v. State, 42 Ark. 270; Powell v. State, 89 Ala. 172; People v. Defoor, 100 Cal. 150; Morey v. Commonwealth, 108 Mass. 433; 17 Am. & Eng. Enc. Law (2 Ed.), 599.
Tested by this rule, the plea of former conviction set up in this case was good. A conviction of a lower offense, fraudulently procured by the defendant for the purpose of shielding himself against a prosecution for a higher offense, would, of course, constitute no valid defense. Bradley v. State, 32 Ark. 722. But there is no charge of fraud or collusion in this case, for the question arises on a demurrer to the plea of defendant, and the only question is whether a former conviction for petit larceny will bar a prosecution for robbery founded on the same act. As a charge of robbery includes larceny, and as these defendants under the indictment in this case can be convicted of petit larceny, the same crime as that for which they have already been convicted, it follows that a trial on this indictment would be a .trial for the offense for which they have already suffered punishment. They can not be .convicted of robbery without proof of larceny, for there can be no robbery without larceny. But they have already been convicted of larceny and punished, and can not be convicted of that crime again. It follows, therefore, that they can not be convicted of .robbery, for a. conviction of robbery would be a conviction of larceny also. Keeton v. State, 70 Ark. 163; Bowlin v. State, 72 Ark. 530.
The court, therefore, in our opinion, erred in sustaining the demurrer to the plea of former conviction before a justice of the peace; for, if the allegations thereof are true, defendants have a good defense against- the indictment for robbery.
The demurrer was properly sustained to the other plea of former conviction. This plea was based on the fact that these defendants had been convicted on a former indictment for the same offense, which conviction was afterwards set aside on motion of the defendants, a nol. pros, entered by the. prosecuting attorney, and a new indictment returned against defendants. The judgment of conviction on the first indictment being set aside on motion of defendants, the case stood as if there had been no trial or conviction, and the entry of the nol. prosequi did not bar a subsequent prosecution for the same offense. Kirby’s 'Digest, § 2424; 17 Am. & Eng. Enc. Daw (2 Eá.), 595.
But the second indictment, on which the present conviction rests, alleged that the robbery was committed upon a person whose name was unknown to the grand jury. The State introduced no evidence to prove this allegation, and in this respect the proof was defective. Boles v. State, 58 Ark. 35; 18 Enc. Plead. & Prac. 1222.
It is 'further said that the evidence did hot show that the money taken was money of the United States as charged in the indictment. The law on that point was discussed by this court in the recent cases of Marshall v. State, 71 Ark. 417, and Johnson v. State, 73 Ark. 101. As a new trial must be granted, we need only call attention to those cases.
There are other points discussed by counsel, but we find it unnecessary to notice them. For the errors stated the judgment will be reversed, with an order for the circuit court to overrule the demurrer to the plea of former conviction and for a new trial. | [
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McCulloch, J.
Appellee, Clara Ames, an infant suing by next friend, instituted an action in ejectment against appellant, Lina Ames, to recover a tract of land containing forty acres situated in Benton County. The cause was by con'sent of parties transferred to equity, and the chancellor rendered a decree in favor of the plaintiff, canceling the defendant’s claim of title and awarding the land to the plaintiff. The plaintiff, Clara Ames, is the daughter of one D. D. Ames and his former wife, Sophr ronia, and the defendant, Lina Ames, is the divorced wife of D. D. Ames. Ames has been married three times, and as many times divorced. Sophronia, the mother of Clara, was his second wife, and defendant, Lina, was his last or third wife. In 1893 he purchased the land in controversy from H. A. Gramling and Elizabeth Gramling, and they executed and delivered to him a deed conveying the land to him. A few weeks later he went back to the Gramlings, and represented to them that the deed was not satisfactory to him because he wanted and expected them to convey the land to his wife, Sophronia, and children by her, and that he had not accepted it. He represented to them that he had destroyed the former deed, and thereby induced them to execute a new deed, conveying the land to Sophronia for life, or as long as she remained his wife or widow, with remainder over to the issue of their marriage. Subsequently the plaintiff, Clara, was born. Ames obtained a divorce from his wife, Sophronia, on account of her misconduct, and intermarried with the defendant, Lina Arnes. This marriage occurred in 1897, more than four years after the execution of said deeds. In January, 1898, D. D. Ames and his wife, Lina, joined in the execution of a deed to one Cross, purporting to convey the land, and on the same day Cross executed a deed to Lina, purporting to convey the land to her, and she now claims title under said deed. Prior to the commencement of this suit, D. D. Ames obtained a divorce from defendant Lina.
The deed executed by the Gramlings to D. D. Ames was not recorded until about the time that he executed the deed to Cross. The deed from the Gramlings to Sophronia Ames for life with remainder over to her children was recorded shortly after its execution.
The case turns upon the question whether or not the title passed to D. D. Ames under the first deed executed by the Gram-lings. Appellant claims that the deed was delivered, that the title passed thereby, and that the subsequent agreed surrender of the deed to the Gramlings did not reinvest them with the title so as to enable them to convey it to Sophronia and her child. D. .'D. Ames testified that he did not accept the deed. He stated, on examination as a witness, that he intended to have the conveyance made to his wife, Sophronia, but that the notary public who prepared the deed and took the acknowledgment left it at his house with his wife during his absence; that on his return home the same day he read it and told his wife to destroy it, as the title was not conveyed in accordance with his wishes; that he left home the next day, and was absent on business for about a month; that immediately upon his return he saw H. A. Gramling and told him the deed was destroyed, and that he wanted them to execute a new deed in accordance with his wishes, which they (the Gramlings) agreed to execute, and did execute, as before stated; that he thought his wife had destroyed the old deed until several years afterwards when the defendant Lina found it and induced him to join in the conveyance to Cross. He also testified that he told the defendant of the deed to Sophronia and the child, but that she recorded the old deed and insisted on his joining in the deed to Cross, which he says he did “for the sake of peace.”
Mr. George, the notary public, testified, in contradiction of Ames’s statement, that the first deed“ was prepared in accordance with Ames’s instructions, and that the latter accepted it in that form without objection. The chancellor found that the first deed was delivered to and accepted by Ames, but that he elected to cause the land to be conveyed to his wife, Sophronia, and daughter, and that, though the last deed executed by the Gramlings was ineffectual to convey the legal title, D. D. Ames held the legal title as trustee for his wife, Sophronia, and child, Clara, the plaintiff.
It is settled by repeated decisions of this court that where the title to land passes by delivery and acceptance of a deed of conveyance, the same can not be re-vested in the grantor by surrender or cancellation of the deed. Strawn v. Norris, 21 Ark. 80; Cunningham v. Williams, 42 Ark. 170; Diver v. Friedheim 43 Ark. 203; Campbell v. Jones, 52 Ark. 493; Watters v. Wagley, 53 Ark. 509.
It is equally well settled that an acceptance of the deed by the grantee is essential to the passage of the title. 13 Cyc. p. 570 and cases cited.
The evidence is conflicting as to whether or not D. D. Ames ever in fact accepted the first deed when it was executed and delivered to him, but it is undisputed that in a short time thereafter he went to the grantor and, asserting that he had destroyed the deed and had never accepted it because it hád not been exe cuted in accordance with .his wishes and .directions, demanded the execution of a new deed to his wife and her children. The grantor accepted his statement as true, and executed and delivered the new deed. Can he or his grantee, where no rights had intervened between the dates of the two deeds, be heard to assert now that he had in fact accepted the deed, and that the title had passed to him thereunder?' We think not. His statement which induced the execution of the new deed must now be conclusively held to have been true. He and his grantee are estopped to deny its truth.
There are many cases to the effect that where a grantee surrenders his deed to the grantor, and induces him to execute a new deed to another purchaser for value, he is estopped to assert title under the old deed, because to do so would be to perpetrate a fraud. This court has so held. Strawn v. Morris, 21 Ark. 80; Neal v. Speigle, 33 Ark. 63; Taliaferro v. Rolton, 34 Ark. 503.
In those cases there was no claim on the part of the grantee, as an inducement to the grantor to execute another deed, that he had not accepted the deed. The surrender was for the. sole purpose of revesting the title in the grantor to enable him to make a new deed. In the case at bar the facts are much stronger. Though the second deed was not made to a purchaser for a new consideration, the grantee, Ames, represented to the grantor that he had never accepted the first deed. Now, the acceptance or nonacceptance of a deed by a grantee is, under doubtful circumstances, a matter largely within the knowledge of the party himself ; and where he afterwards plainly and unequivocally manifests his non-acceptance, and thus influences the conduct of his grantor, it ought to close the door to further inquiry on the subject, whether the rights of innocent purchasers for value have been built up under the new deed or not. Neither he nor his grantee should be permitted to say thereafter that he had in fact accepted the deed, and that the title passed to him thereunder.
The decree must, .therefore, be affirmed. It is so ordered. | [
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Battle, J.
This was an action brought by R. S. Morris, as administrator of Jacob Webster, deceased, against the Kansas City Southern Railway Company to recover damages on account of the death of his intestate. He alleged in his complaint” that the defendant maintained, on the second day of May, 1904, on its line of railroad, at the city of Siloam Springs, in Benton County, in this State, a passenger and freight depot and a large switch yard and many side tracks of railroad, and had a foreman and laborers employed to work on said yard and side tracks. Mike Kelley was the foreman, and Jacob Webster was one of the laborers working under his orders and supervision. That while so employed it was the duty of Webster to go over and across the said tracks and switches. That on the morning of May 2, 1904, there was standing on the switch in said yards farthest west from the depot building two large furniture cars. That, while the engineer and conductor were switching on the track next to the depot building, Kelley directed Webster to get a small piece of timber to be used in raising the frog of the railroad track in the switch yards. That upon the west of the tracks, upon which the. two cars were standing, was a lumber yard. That Webster passed behind the two cars on the south side to get a piece of lumber from the lumber yard which was near to the track on which the two cars were then standing. That at the time he passed in the rear of said cars, or to the south of them, the locomotive and train that was then being formed was on the track next to the depot and to the east of the track upon which the two cars were standing. And from where the two cars were standing, after Webster had gone to the west of them in the performance of his duties at the time as a section hand, he could not see the engine and train of cars on the track next to the depot and east of where he stood. That, after obtaining the piece of timber he was sent to get, he started , to recross the track on which the two furniture cars were standing and to go to the place he was directed to take the timber to be used. That, in order to return to the place, he had to recross the track upon which the two cars were standing. That he had been on the west of the track after he crossed it to the lumber yard not exceeding two minutes. And when he crossed to the west side the two cars were standing, still disconnected as aforesaid. That in attempting to cross the track on which the two cars stood he crossed on the tracks south of the last car. That when he crossed to the west the locomotive and train that were then being made up headed north and were on the track next to the platform and depot, and to the west of the depot. That when Webster started to cross the track back to the direction from whence he came, he started to cross about twenty feet from the end of the south car on the track. That when about half way across the track the car next to him was driven with force and rapidity by the locomotive under the control of the engineer striking the same so as to drive the car against and over Webster, and to knock him down and mortally injure him, from which injuries then received he died in about three hours.
“The plaintiff states that at the time his intestate -was struck and killed by the defendant’s act he was in the discharge of his duty as a servant of the defendant.
“The plaintiff states that at the time the defendant’s locomotive, operated by its engineer and under the direction of said engineer and the conductor in making up said train of cars, and which engine and train of cars was backed over the body of the deceased, was run and operated in the most careless and negligent manner. That without warning or signal given by the engineer he backed the engine under his control in such unskillful-manner and with such rapidity in the switch yards as to force the two cars aforesaid together and drive them over one hundred feet from where they then stood. That, had the engineer and conductor done their duty as the servants of the defendant company, the cars would not hav-e been driven over Webster] but, on account of their negligence and disregard of his rights as a servant of the company acting at the time under the orders of and direction of the company’s section foreman in the yards of the company, he, Webster, lost his life without any act of carelessness 01-negligence on his part.
“The plaintiff states that the said Jacob R. Webster at the time of the striking and death as hereinbefore stated was a married man. That he left him surviving a wife, Mary R. Webster, who is of the age of 50 years. That he left him surviving the following named children: Oscar F. Webster, aged 19 years, Ida S. Webster, aged 17 years, Homer F. Webster aged 13 years, Earl H. Webster aged 10 years and Inatia Webster aged - years. That at the time of his death Jacob R. Webster was 51 years of age. That at 'the time of his death he left an estate of about the value of $150. That he and his family were dependent upon his daily labor for a support. That without his support his family as hereinbefore named could not be fed, clothed and educated, and that his labor was their sole means of support.”
He asked for judgment for $1,920 damages and all other prop'er relief.
The defendant specifically denied each allegation in the complaint, and pleaded contributory negligence of the deceased.
In a trial before a jury the plaintiff recovered a verdict for $1,500, and the defendant appealed.
H. H. Canfield, a physician, after testifying that Webster was struck by the cars of the defendant, and that the last time he saw him he was in a dying condition, testified that he was about fifty years old; that he (witness) was familiar with the tables of mortality, having been an examining physician for insurance companies for ten years; and that Webster’s expectancy of life was between 19 and 20 years. The defendant moved to exclude this testimony because it was incompetent and not responsive to any allegation in the complaint, and the court overruled the motion.
Defendant offered to exhibit photographs of the scene of the accident in which Webster lost his life, as evidence, and the court refused to allow them to be so used; and it saved exceptions.
J. E. Tincher testified that he was the first man to go to the relief of Webster after he was hurt; that Webster was lying with his limbs below his knees across the rail of the railroad track and his body was lying outside; that die pulled him off the track. While in this position, while lying near the track, F. Daniels went to his assistance. Fie (Daniels) testified that, four or five minutes after he (Webster) was hurt, he asked him, “Dad, what’s the matter with you? How did this happen?” and that Webster replied, “I went to go across the track,” and he said, “not knowing they were on this track, they crushed me down, and I could not get up or get out.” Defendant moved the court to exclude what the deceased said, which the court refused to do. James Snyder testified that he, Webster, “said a few words about his boys; told'them to be good boys.” He died in about two hours after he was hurt.
The court gave six instructions to the jury, on its own motion. They were numbered 1, 2, 3, 4, 5, 6. The defendant objected as follows: “To the giving of instruction numbered 1, 2, 3, 4, and 5 by the court on its own motion the defendant at the time objected, but the court overruled its objections, and the defendant at the time excepted.”
The defendant asked the court to give to the jury six instructions, numbered 1, 2, 3, 4, 5, and 6. It is said in the bill of exceptions: “The court refused to give instructions- numbered. 1, 2, 3, 4 and 5 so requested by defendant, and to such refusal the defendant at the time excepted.”
The testimony of Dr. Canfield, objected to by the defendant, was competent. San Antonio & Aransas Pass Railway Company v. Bennett, 76 Texas, 151, 153. Rife tables are competent evidence, but not essential to the recovery of damages on account of the wrongful death of a person in cases like this. The jury may determine the probable duration of his life from his age, health, habits, and other facts which affect its probable continuance and prospective condition at the time of his death. Beems v. Chicago, Rock Island & Pacific Railway Co., 67 Iowa, 435, 443; Atchison, Topeka & Santa Fe Railroad Co. v. Hughes, 55 Kan. 491, 502, 503; Boswell v. Barnhart, 96 Ga. 521, 524.
In Beems v. Chicago, Rock Island & Pacific Ry. Co., 67 Iowa, 435, 443, our views upon this subject are expressed. In that case the court said: “Next, it is urged that there was no evidence of the probable life of the deceased. No life tables were introduced in evidence, and it is claimed that without such evidence there was no proper basis for the computation of damages. The damages in cases like this never can be accurately estimated. It is the common practice to introduce life tables that the jury may be advised of the probable duration of the life of a person of the age of the deceased. But, after all, the amount of damages is largely a matter of conjecture. No estimate can be made of the probable illness, sickness and inability to secure employment, nor can it be ascertained therefrom at what period in the prospective life the infirmities of age will reduce the capacity for labor. We do not think that the introduction of life tables in evidence is essential to the recovery of damages. It is not claimed that the damages awarded to the plaintiff are excessive. The evidence shows that the deceased was twenty-five years of age, and that he was an active, industrious man, in good health, with a common education, and that at the time of his death he was earning from forty to forty-five dollars per month. These facts were sufficient to authorize an award of substantial damages; and, in the absence of the claim that an excessive amount was fixed by the jury, the verdict should be allowed to stand.” See to the same effect Atchison, Topeka & Santa Fe Railroad Co. v. Hughes, 55 Kan. 491, 502, 503; Boswell v. Barnhart, 96 Ga. 521, 524.
The photographs should have been admitted as evidence. Photographs proved to be correct, like diagrams, are admissible as evidence to aid the court or jury to understand the evidence, and witnesses to explain their testimony. (Baustian v. Young, 152 Mo. 317, 319, s. c. 75 Am. St. Rep. 462, and note on pages 468-479.) But the exclusion of them in this case was not prejudicial, because the testimony of witnesses was sufficiently full and explicit to enable the jury to understand what they were intended to show. Blair v. State, 69 Ark. 558.
Was the statement made by the deceased to Daniels admissible? It was made within a few feet of where he had been mortally injured, and four or five minutes after the accident occurred, and while the excitement caused by the injury was unabated and in all probability controlled and dominated his mind. The injury was overwhelming and appalling, and sufficient at the time to drive from his mind all hope of surviving many hours — to bring him in the presence of immediate dissolution — and to drive from his mind any intention or desire to manufacture evidence for his benefit, and to force him to speak the truth, and to make his statement an emanation of the accident, “so connected with the cause of his injuries as to preclude any idea that it was the product of calculated policy.” The statement was admissible. Carr v. State, 43 Ark. 104; L. R., M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333; Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494; 1 Wharton on Evidence (3 Ed.), § § 259, 262; 3 Wigmore on Evidence, § § 1745, 1757.
The exception of defendant to the instructions of the court, was en masse, and, one or more of them being good, can not be entertained by this court. Atkins v. Swope, 38 Ark. 328; Wells v. Parker, 76 Ark. 41; Walnut Ridge Merc. Co. v. Cohn, 79 Ark. 338. The exception to the refusal of the court to give instructions asked for by the defendant was likewise en masse, and, one or more of them being bad, will not be considered here. Young v. Stevenson, 75 Ark. 181.
The defendant argues that there was no duty on its part to keep a constant lookout for persons and property on the side tracks in its railroad yards; that the act of the General Assembly, entitled “An act to better protect persons and property upon railroads in this State,” approved April 8, 1891, does not require a lookout to be kept by persons running cars and engines in a railroad yard. But this is not correct. In Little Rock & Hot Springs Western R. Co. v. McQueeney, 78 Ark. 22, it was held that the act required such lookout to be kept in railroad' yards; that it makes no exceptions, and applies to all cases which come within the mischief intended to be remedied and within its object. In the case cited the person injured was not an employee of the railroad company. But we see no reason'why the employee should be excepted. The act makes no exceptions as to persons and property upon the track of a railroad. The employee needs protection, and should receive the benefit of the act.
Appellant presents other questions in its brief. We have considered them, but do not deem it necessary to discuss them in this opinion.
The evidence was sufficient to sustain the. verdict in this court; and there is no complaint in the motion for a new trial that the damages awarded to the plaintiff were excessive.
Judgment affirmed. | [
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McCulloch, J.
The plaintiff, Phillip Stroble, sues the railroad company to recover damages for personal injuries received while working for the company. He recovered a judgment for $950 damages, and the defendant appealed. The plaintiff was working for the railroad company as section hand, and at the time of the injury was engaged, with his co-laborers under direction of the section foreman, in trucking ties — that' is, loading cross-ties upon handcars and hauling them a short distance across a trestle and unloading them. The ties were piled upon the cars and pushed by the men down the track to the place where they were unloaded. Two handcars were in use at the place, and the brake on one of them was so defective that it could not be used. The plaintiff was working with the sound car. When the cars were partially loaded, a warning was given to the men that a train was approaching and they were told to hurry across the trestle. Plaintiff and his companions (four or five) at the front car were pushing it across the .trestle, .and two of the hands were also on the car working the lever. The plaintiff was pushing, but the . speed of the car became so fast that he was left behind, and the car with the defective brake, following after them, struck him and knocked him off the trestle. It is claimed, on the part of the plaintiff, -that by reason of the defective brake -the men or boys on the handcar were unable to check its speed and prevent running against the plaintiff. Negligence on the part of the defendant is alleged in permitting the use of the handcar with the defective brake. Evidence -was introduced by the defendant tending to show that it was customary, in doing this kind of work, to use push cars without brakes or other appliances for stopping them or checking the speed, and that it was reasonably safe to use such cars for that work not equipped with brakes. It is argued, therefore, that it was not negligence to permit the use of a handcar with a defective brake, as it was in that condition as serviceable and safe as a push car.
The court, over the defendant’s objection, gave the following instruction:
“i. If there was a defective brake on defendant’s handcar, and defendant knew of this defect, or in the exercise of due care ought to have known it, and by reason of such defective brake, if it existed, the plaintiff, while pursuing his duties as an employee of defendant, was knocked down and injured at a time when plaintiff was exercising due care for his own safety, you will find for the plaintiff.”
This instruction, as applied to the proof in the case, was clearly erroneous. It made the plaintiff’s right to recover depend solely upon the fact that he was injured by a defective brake on the handcar, and that the defendant knew of the defect, leaving out of consideration the evidence introduced by defendant tending to show that it was not negligent to use cars without brakes.
One of defendant’s witnesses testified that it was customary to use push cars not equipped with levers or -brakes in doing this kind of work, and that it was not necessary in that kind of work to use cars with brakes on them. He stated as a reason for this that in loading a car the ties were piled up on it so high that the lever and brake could not be reached by the men using it — that the men pushed it along and controlled it by hand. If these statements of the witnesses were true, it was not negligence on the part of the company to furnish to its servants for this work either push cars without brakes or a handcar with a defective brake. It is not necessarily negligence on the part of the master to permit the use of tools or machinery with defects therein. The master is only required to exercise ordinary care in supplying machinery, tools and appliances that are reasonably safe for the use intended. Little Rock & F. S. Rd. Co. v. Duffey, 35 Ark. 602; St. Louis, I. M. & S. Ry. Co. v. Gaines, 46 Ark. 567; 1 Labatt, Master and Serv. p. 86; 4 Thompson on Neg. § § 3986, 3991. There being some evidence to sustain this contention, it should have been submitted to the jury, and not eliminated from the case by the above-quoted instruction. This error was emphasized by instruction number two given by the court, wherein the jury were told that the defendant was required to exercise due care to ascertain whether there was a defect in the brake or other appliance, etc.
The defendant requested the following instruction on this phase of the case, which the. court refused: “7. If you find that a man of ordinary prudence in the conduct of his own business would have used said handcar in the condition in which it was, and for the purposes for which it was used, then defendant was not guilty of negligence in that regard.” This instruction correctly stated the law as applicable to defendant’s contention,- and the testimony which had been introduced in support of it, and the same should have been given. It was error to refuse it.
It is claimed that these errors were cured by the following interrogatory propounded by the court to the jury at the close of the argument, to which the jury, in the special verdict, made answer in the negative: “Was the authorizing or permitting the use of the car under the circumstances the exercise of due care on the part of defendant for the safety of its employees?” This did not cure the error in the previous instruction. The jury were told in the previous instruction that the plaintiff was entitled to recover if there was a defective brake on the handcar which the defendant had knowledge of, or in the exercise of due care ought to have known of, and which caused the injury. In other words, it declared that knowingly permitting the use of a handcar with a defective brake was an act of culpable negligence. The interrogatory just quoted left the jury free, after having thus been erroneously told that this constituted negligence on the part of the defendant, to say whether or not the defendant was exercising due care in permitting the use of the car by its servants. It did not qualify the previous instruction at all, but left it in full force with the jury.
Counsel for appellee contends that, notwithstanding the fact that one of the witnesses testified that it was customary to use push cars without brakes in hauling ties, and that it is not necessary or practicable to make use of brakes in handling handcars loaded with ties, we should declare it to be negligence per se to use such cars without brakes in hauling ties across a trestle. That was a question for the jury to determine from the evidence. The court can not say that the use of the cars under such circumstances was necessarily negligent.
For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.
Hill, C. J., not participating. | [
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Robert H. Dudley, Justice.
This case is before us on a petition for writ of prohibition. Petitioner, Forrest City Machine
Works, Inc., and respondent Jimmy Ray Lyons were before this Court previously in Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990). In that case, we affirmed the trial court’s dismissal of the complaint based upon invalid service of process. That opinion was handed down on March 19, 1990. On April 2, 1990, respondent Lyons filed the complaint which is involved in this case. Petitioner filed a motion to dismiss in which it argued that the action was barred by the applicable statute of limitations for product liability cases. The trial court denied the motion to dismiss. Petitioner then filed this petition asking us to prohibit the trial court from maintaining the action. We find that a writ of prohibition is not a proper remedy and, accordingly, the petition is denied.
Prohibition is an extraordinary and discretionary writ. The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy available. Wisconsin Brick & Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981). Accordingly, prohibition is not a substitute for appeal, and would lie only where appeal would be inadequate. Springdale School Dist. v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981). It is never issued to prohibit an inferior court from erroneously exercising jurisdiction, but rather where the lower court is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Jameson, 274 Ark. at 80.
Here, petitioner has failed to establish that the trial court was without jurisdiction. Statutes of limitation constitute an affirmative defense, see ARCP Rule 8(c), but they are generally not jurisdictional. Those that are jurisdictional are tied to the right itself, and not just the remedy. See, e.g., Vermeer Mfg. Co. v. Steel, 263 Ark. 323, 564 S.W.2d 518 (1978) (limitation for wrongful death actions). Petitioner has not presented us with a case holding that the applicable statute of limitations for product liability cases is jurisdictional. Further, we know of no such case. Prohibition is not available as a remedy if the statute of limitation governing a particular proceeding is not jurisdictional, but may only be raised as an affirmative defense. Arkansas State Hwy. Comm’n v. Munson, 295 Ark. 447, 749 S.W.2d 317 (1988); 63A Am. Jur. 2d, Prohibition, § 57 (1984).
Petitioner does argue that in the case of Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), we granted a writ of prohibition when the trial court had personal and subject matter jurisdiction, and we did not hold there was an inadequacy in the remedy of appeal. It asks us to do the same again. Curtis was an anomaly involving an issue of first impression which we resolved “for the benefit of the trial courts.” It is doubtful that we will ever again follow the procedure in Curtis. We limit that case to its facts.
Accordingly, the petition is denied.
Holt, C. J., Newbern and Glaze, JJ., concur.
See concurring opinion of Justice Glaze in Ridenhower v. Erwin, 303 Ark. 647, 649, 799 S.W.2d 535, 536 (1990). | [
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Donald L. Corbin, Justice.
This is the fourth appeal which appellant, Sam Sexton, Jr., has made from the order of the Arkansas Supreme Court Committee on Professional Conduct. Mr. Sexton’s previous appearances are styled as: Sexton v. Supreme Court Comm. on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989), cert. denied, 110 S. Ct. 1782 (1990), [case number 89-73]; Sexton v. Supreme Court Comm. on
Professional Conduct, 297 Ark. 154A, 761 S.W.2d 602 (1988) [case number 88-175]; Sexton v. Supreme Court Comm, on Professional Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988) [case number 87-272], We affirm.
On February 22, 1989, the Arkansas Supreme Court Committee on Professional Conduct, (the Committee), entered an order suspending the law license of Sam Sexton, Jr., for a period of twelve months. The Committee stayed the effect of its action pending an appeal to this court. On July 10, 1989, this court affirmed the action of the Committee. Sexton v. Supreme Court Committee on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989). A petition for rehearing was denied and on September 11, 1989, this court issued a mandate which stated in its entirety:
Appellant’s motion for stay of mandate is granted for 90 days pending appeal to U.S. Supreme Court.
On January 8, 1990, the Committee received a copy of Mr. Sexton’s petition for writ of certiorari to the United States Supreme Court and the Committee filed a response on March 8, 1990. On April 2, 1990, the United States Supreme Court informed all parties of its decision to deny certiorari. Upon receipt of the notification of the denial of certiorari, this court issued a mandate on April 6, 1990. That mandate was an expression of affirmed law in case number 89-73. The appeal to the United States Supreme Court having been completed, the April 6 mandate was issued as the final expression of this court affirming the Committee’s twelve-month suspension of Mr. Sexton.
In addition to receiving notice from this court of our mandate of April 6,1990, Mr. Sexton, on April 30,1990, received notice from the Committee of the April 6 mandate. Accompanying this notice from the Committee was a request that he comply with Rule 11 of the Rules of the Court Regulating Professional Conduct of Attorneys. Rule 11 specifies the procedure which a disbarred or suspended attorney must follow when withdrawing from the practice of law. Mr. Sexton informed the Committee of his compliance with Rule 11 on May 3, 1990.
On September 6,1990, Mr. Sexton filed with the Committee a petition for reinstatement. On November 2,1990, the Commit tee advised Mr. Sexton that it had refused to consider his petition because it was “filed untimely.”
On this appeal, Mr. Sexton claims his petition for reinstatement was timely filed on September 6, 1990, in that his suspension terminated on December 11, 1989. The thrust of Mr. Sexton’s argument is that the mandate of this court dated September 11, 1989, became effective automatically 90 days later on December 11, 1989, and that his one year suspension ended automatically on December 11, 1990.
It is interesting to note that Mr. Sexton does not assert he relied on the December 1989 date to his detriment and accordingly ceased his practice that date. Mr. Sexton did nothing to notify the Committee of his withdrawal from the practice of law. It was not until May 3,1990, following our April 6,1990 mandate and a written request by the Committee for compliance with Rule 11, that Mr. Sexton indicated he was no longer practicing and had complied with Rule 11.
We think it is clear that our September 11, 1989 stay of mandate did not terminate until Mr. Sexton’s appeal to the United States Supreme Court was completed. The conduct of the parties involved in this appeal so indicates. Mr. Sexton did not comply with the Rule 11 procedures for withdrawal from the practice of law until the writ of certiorari was denied. Had the Committee interpreted the September 11,1989 stay as terminating on December 11, 1989, rather than on the completion of the appeal to the United States Supreme Court, it could have notified Mr. Sexton of his failure to comply with Rule 11 and initiated contempt proceedings against him. See Rule 11(9). Instead, the Committee, like Mr. Sexton, did nothing until the appeal to the United States Supreme Court was completed.
We find that Mr. Sexton will be eligible for reinstatement to the practice of law on April 6, 1991. This is exactly one year from the date of the issuance of our April 6, 1990 mandate which Mr. Sexton never challenged. The April 6,1990 mandate was the last expression by this court.
Finally, we point out that we will not consider Mr. Sexton’s due process claim with respect to Rule 7(E) of the Procedures of the Arkansas Supreme Court Regulating Profes sional Conduct of Attorneys at Law, 303 Ark. 725, 792 S.W.2d 323 (1990). Mr. Sexton’s suspension has not yet terminated; his claim that Rule 7(E) could effectively extend his suspension is therefore not ripe for consideration.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
This case involves a suit for personal injuries and wrongful death.
On the morning of December 2, 1987, the appellee, Billy Wilkerson, was driving a tractor/trailer rig loaded with sawdust. Wilkerson was employed by the appellee, T & S Sawmill, Inc. (Sawmill), which also owned the rig that Wilkerson was driving. North of Pine Bluff, Wilkerson approached the Highway 79 bridge over the Arkansas River; the highway at that point had four lanes — two lanes each going north and south. An accident on the bridge had blocked both south-bound lanes; as a result, Wilkerson stopped his truck in the outside lane behind a line of stopped vehicles. Wilkerson turned on his flashing lights, locked his trailer brakes, and waited in his truck for the accident to be cleared. A Chevrolet Blazer was parked behind other stopped vehicles on the inside lane next to Wilkerson.
Approximately ten minutes later, the appellant, Joseph Mack, approach the bridge from behind Wilkerson. Mack was also driving a tractor/trailer rig and his son, David Mack, was a passenger. Traveling at an estimated speed of 35 miles per hour, Mack was unable to prevent his rig from colliding into both Wilkerson’s rig and the Blazer. As a result, Mack was injured, and his son was killed.
Mack brought suit against Wilkerson and Sawmill and claimed that his accident was a result of Wilkerson’s negligence; the Estate of David Mack also filed suit against the appellees for wrongful death. The cases were consolidated for trial, and the jury found in favor of Wilkerson and Sawmill.
The appellants assert two points of error on appeal: 1) that the trial court erred in refusing to give their requested jury instruction AMI 601 containing Ark. Code Ann. § 27-51-1303 (1987) and Arkansas Motor Carrier Act, 1955,49 C.F.R. Ch. Ill § 392.22 (10-1-89 ed.), and 2) alternatively, that the trial court erred in refusing to give their requested jury instruction AMI 601 containing only section 27-51-1303. Both arguments are without merit, and we affirm.
Section 27-51-1303 addressed the stopping, standing, or parking outside of business of residence districts and provides in pertinent part as follows:
(a)(1) Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or leave the vehicle off such part of the highway. In every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicles shall be available from a distance of two hundred feet (200') in each direction upon the highway.
(Emphasis added.)
* * * *
Section 392.22 addressed emergency signals with reference to stopped vehicles and provides in pertinent part as follows:
(b) Placement of warning devices —
(1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall as soon as possible, but in any event within 10 minutes, place the warning devices with which his vehicle is equipped in conformity with the requirements of § 393.95 of this subchapter, either three emergency reflective triangles, three electric emergency lanterns, three liquid-burning emergency flares, or three red emergency reflectors in the following manner:
(Emphasis added.)
* * * *
In Burchfield v. Carroll, 255 Ark. 245, 499 S.W.2d 620 (1973) (citing American Bus Lines, Inc. v. Merritt, 221 Ark. 596, 254 S.W.2d 963 (1953)), we noted with reference to Ark. Stat. Ann. § 75-647 (Repl. 1957) (the predecessor of section 27-51-1303) that the statute does not apply to stops arising out of the exigencies of traffic.
We note as well that section 392.22, by its own phrasing, excludes vehicles stopped for necessary traffic stops.
In this case, the evidence is undisputed that Wilkerson was properly stopped behind other vehicles in southbound traffic at the Highway 79 bridge because of an accident on the bridge. It is clear, then, that Wilkerson had stopped due to the exigencies of traffic and that the stop was a necessary one. Consequently, neither section 27-51-1303 nor section 392.22 applies to the circumstances of this case, and the trial court’s refusal to give an incorrect instruction is not error. See Davis v. Arkansas State Hwy. Comm’n, 290 Ark. 358, 719 S.W.2d 694 (1986) (citing Kanis v. Rogers, 119 Ark. 120, 177 S.W. 413 (1915)).
Accordingly, the judgment is affirmed.
Newbern and Price, JJ., dissent. | [
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Per Curiam.
Petitioner, Rodney Lamont Harris, by his attorney, Howard W. Koopman, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Steele Hays, Justice.
Appellant seeks relief in this court from the trial court’s refusal to sever two counts of aggravated robbery for separate trials.
On December 28,1988, appellant Leffel Brown was charged by information with two counts of attempted capital murder and two counts of aggravated robbery occurring on December 23, 1988. Appellant was also charged with being an habitual of fender. Appellant moved to sever the charges and the state agreed to a severance of the two attempted capital murder charges but opposed trying the two aggravated robbery charges separately. The court denied the motion as to the robberies.
At trial, the jury found appellant guilty of one of the robberies but could not reach a verdict on the other. After hearing evidence of prior convictions, the jury imposed a sentence of sixty years and appellant appeals from the judgment of conviction.
The applicable rule is A.R.Cr.P. Rule 22.2, Severance of Offenses:
(a) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (1), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.
Under the rule, a defendant has a right to a severance when two or more offenses have been joined solely on the ground that they are of the same or similar character. Otherwise, granting or refusing a severance is within the discretion of the trial court. McEwen v. State, 302 Ark. 454, 790 S.W.2d 432 (1990).
The question is, were the two robberies joined solely because they were of the same character, or were they part of a single scheme or plan so as to justify denial of the severance request. We will uphold the trial court if we find these offenses are part of a single scheme or plan, or if both offenses require the same evidence. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). Here, the denial of severance can be sustained on multiple grounds.
We addressed the issue of a single scheme or plan in Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), where a defendants’ motion to sever two capital murder charges was denied. The defendants had kidnapped three individuals, murdered one of them and attempted to murder a second and left those two in the trunk of a car. The third individual was murdered thirteen to fourteen hours later and left in a wooded area in another county. That opinion states:
They argue that the offenses are not part of a single scheme or plan. That assertion is debatable, but whether they were part of a single pían or simply random, disconnected crimes is beside the point, because they constitute one criminal episode and when a series of acts are connected that is enough to give the state a right to join them in a single information. Rule 21.1. . . .
Rule 22.2, which appellants cite, gives an absolute right of severance when the offenses have been joined solely on the ground that they are of the same or similar character. Here, the offenses cannot be said to have been joined solely on that ground for reasons we have stated.
Similar arguments were presented and rejected in Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Parker murdered two members of his ex-wife’s family at their home, and attempted murder of a third. Later that day he kidnapped his ex-wife and shot a police officer. We held the trial court did not err in denying the defendant’s motion to sever two counts of capital felony murder from two counts of attempted first degree murder, two counts of burglary, one count of kidnapping and one count of attempted capital murder.
In this case both robberies were of convenience stores located in Fort Smith, and were closely related in time — the first occurring about 11:20 p.m. and the second thirty minutes later. This proximity in time and place provides an ample base for denial of severance under our interpretation of Rule 22.2 in Ruiz, supra, and later cases.
Additionally, some of the state’s proof was pertinent to both robberies — the officer who stopped appellant after the second robbery was reacting in part to a radio broadcast alerting the police to watch for the perpetrators of the first robbery. In order for the officer to explain why appellant was stopped it was necessary to prove the earlier robbery.
Finding no error, we affirm the judgment. | [
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Tom Glaze, Justice.
This appeal concerns a procedural question about service of process. First National Bank, appellee, filed suit against William Cole, appellant, on a past due note on August 7,1984. At that time, the appellant was living in Houston, Texas. The appellee served the summons and complaint by certified mail, return receipt requested, addressed to Mr. William Cole at a post office box in Houston. The mail receipt shows that it was signed by the appellant’s step-daughter Jacqueline Cole on August 17, 1984. When the appellant failed to file an answer, default judgment was entered against him for approximately $42,200 on December 14, 1984.
On April 11, 1989, the appellant received a letter stating that his bank account was being charged with a setoff pursuant to a default judgment obtained against him. On November 8,1989, appellant filed a motion to set aside the default judgment. In that motion, the appellant signed that he had never been personally served with process and had no notice, actual or constructive, of the proceedings against him until he received notification of the setoff on his bank account. The trial court denied the appellant’s motion, and on appeal, appellant claims that denial was erroneous. He also claims appellee’s cause of action should be dismissed with prejudice because it is now barred by the statute of limitations. While we agree with the appellant that the default judgment should be set aside, we dismiss the appellee’s action without prejudice.
To serve the appellant, then an out-of-state defendant, by mail, the appellee was required to follow ARCP Rule 4(e)(3). Rule 4 has been amended many times, but in 1984, when appellee attempted service, it provided the following:
(e) Other Services: Whenever the law of this state authorized service outside this state, the service, when reasonably calculated to give actual notice, may be made:
(3) By any form of mail addressed to the person to [be] served and requiring a receipt signed by the addressee or the agent of the addressee.
We have held that “agent” as referred to in this rule must be an agent appointed pursuant to postal regulations. Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989); see also Reporter’s Notes to Rule 4. In addition, we have stated that statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989).
In the present case, the appellee’s sole attempt at service was mailing a copy of the complaint and summons addressed to the appellant. The appellee received a return receipt signed by the appellant’s step-daughter, but there was no marking on the receipt in the boxes provided for “addressee” or “agent” located above her signature. There is no showing that the appellant appointed his step-daughter as his agent pursuant to postal regulations, and in fact there is an indication that the young woman was under the minimum age of fourteen for service at the time she signed the receipt. ARCP Rule 4(d)(1). Because the receipt was not signed by the appellant or his agent, the appellee’s service failed to meet the requirements of Rule 4(e)(3).
In concluding that service was not made on the appellant, we now address the sufficiency of the appellant’s motion to set aside appellee’s default judgment. The appellee argues that even if service was not proper, the appellant’s motion should not be granted because he did not raise a valid defense pursuant to ARCP Rule 60. Rule 60(d) provides that no judgment against a defendant shall be set aside under this rule unless the defendant in his motion asserts a valid defense to the action, and upon a hearing, makes a prima facie showing of such defense. Section 16-65-108, of Ark. Code Ann. (1987), however, provides that a judgment made by any court of the state against anyone without notice, actual or constructive, is null and void. We have held that in cases where judgments are void, no proof of a meritorious defense is necessary to set aside the judgment. Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990); Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989); see also ARCP Rule 60(k). Thus, we conclude that appellant’s motion is sufficient and should be granted.
While we agree that the trial court erred in denying the appellant’s motion, we do not agree that the appellee’s action is now barred under the statute of limitations. Under ARCP Rule 3, as amended in 1983, a civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing. Pursuant to ARCP Rule 4(i), the plaintiff has 120 days after the filing of the complaint to serve summons on the defendant. If the service is not made within 120 days, the action against the defendant is dismissed without prejudice.
Here, the appellee timely filed its complaint on August 7, 1984. Appellee attempted service by mail, and the parcel was received by appellant’s step-daughter on August 17, 1984. Although we now hold in this appeal that appellee’s service was improper, the trial court previously granted appellee a default judgment, finding that the appellant had been “personally served in the time and manner required by law.”
Although the trial court erred in finding that proper service had been made on the appellant, the appellee should not now be penalized five years later by having its action barred by the statute of limitations. This is especially true in this situation where the trial court compounded its error when it denied the appellant’s motion to set aside the default judgment, finding again that proper service had been made. The saving statute, Ark. Code Ann. § 16-56-126 (1987), is meant to apply in this situation. Under this provision, if any action is commenced within time, and the plaintiff suffers a nonsuit, or after a judgment for him the judgment is reversed on appeal, the plaintiff may commence a new action within one (1) year after nonsuit or when the judgment is reversed.
We have held that the saving statute should be given a liberal and equitable construction to secure that a class of litigants, who “from causes incident to the administration of the law, are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them a cause of action yet undetermined, by giving them a reasonable time in which to renew such action.” Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974).
An analogous situation to the present case is found in the early case of L.R., M. R. & T. Ry. v. Manees, 49 Ark. 248,4 S.W. 778 (1887). In Manees, the plaintiff instituted his suit before a justice of the peace and obtained verdict and judgment against the defendant railroad company in the amount of $125. The verdict was affirmed by the circuit court, but on appeal to this court, we vacated the judgment and dismissed the action finding that the justice of the peace could not have jurisdiction over an injury claim to personal property over the amount of $ 100. When the plaintiff attempted to refile his claim against the railroad, the railroad company argued that his action was barred by the one year statute of limitations. Pursuant to the saving statute, the plaintiff refiled his suit and received judgment against the railroad company. On appeal, we affirmed the trial court’s reliance on the saving statute and stated the following:
It cannot be said to be the policy of the State to encourage the citizen to take upon himself the task or the hazard of determining the validity of the proceedings of the courts. Simple and expeditious judicial remedies are provided to test their legality. It is not to be presumed that the framers of this remedial law, the only object of which was to relieve meritorious creditors, intended to invite the debtor, who had gone through all the forms of a trial in his cause in a judicial tribunal, and seen the result recorded in the form and with apparent effect of a binding judgment or decree, afterwards to take the law into his own hands and wholly disregard the court’s proceedings. ... It is more in consonance with the spirit of the legislation to presume that it was anticipated that every defendant, against whom an apparently binding judgment had been rendered, would seek to avoid it by the forms of law, as the railroad company did in this case, and that when so avoided, the judgment should be deemed arrested or reversed within the meaning of the act.
Applying the above language to the facts of the present case, the appellee had the right to rely on the trial court’s award of a default judgment. The trial court found that the appellant was properly served, and it would be unfair to expect the appellee not to rely on this finding and believe that its action was timely commenced.
For the foregoing reasons, we reverse the trial court’s decision denying appellant’s motion to set aside appellee’s default judgment and direct that appellant’s action be dismissed without prejudice.
Hays, J., dissents on the ground that the appellant should prove a meritorious defense.
We note that the current version of ARCP Rule 4(e) requires restricted delivery, but this was not a requirement under the rule in effect in 1984. | [
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Tom Glaze, Justice.
This case involves the state’s petition for review of a decision by the Arkansas Court of Appeals which reversed the trial court’s ruling, denying the respondent’s motion to suppress marijuana evidence obtained from an arrest and subsequent vehicular search conducted by two Game and Fish Wildlife officers and three deputy sheriffs. The appellate court, relying on Ark. Code Ann. § 12-9-108(a)(1987), and the cases of Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), and Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), held the contraband should have been suppressed because the officers making the arrest and conducting the search failed to meet the standards and qualifications established by the Arkansas Commission on Law Enforcement Standards and Training. We reverse the court of appeals’s decision and affirm the trial court’s ruling.
The court of appeals’s decision was not published, so we first relate those facts necessary to an understanding and disposition of the suppression issue in this review. The two Game and Fish officers involved made the initial arrest of the respondent and cited him for a hunting-out-of-season violation. Incident to the arrest, they removed from respondent’s opened-door vehicle a loaded 30-06 rifle and a camouflage jacket, which were in plain view. The jacket contained rifle shells and a bag of green substance which appeared, and later proved, to be marijuana. The wildlife officers then summoned the Ashley County Sheriff’s Department, and upon their arrival, three deputies conducted a further search of respondent’s vehicle that revealed additional marijuana. The record reflects that, at the time of respondent’s arrest, none of the five officers met the minimum employment standards established by the Arkansas Commission on Law Enforcement Standards and Training. See Regulation 1002, Minimum Standards for Employment or Appointment (1990). The state, by information, charged respondent with possession of a controlled substance with intent to deliver. Respondent entered a conditional guilty plea pursuant to A.R.Cr.P. Rule 24.3(b), after which the trial court denied his motion to suppress and sentenced him to ten years imprisonment.
Because respondent was charged with a valid charging instrument, he does not argue on appeal that the felony charge should be dismissed. See Renshaw v. State, 303 Ark. 244, 795 S.W.2d 925 (1990); Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). Instead, his contention, and the appellate court’s decision, rests upon § 12-9-108(a) which in effect provides that a person who fails to meet the minimum standards required by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer and “any action taken shall be held as invalid.” In brief, the respondent argues that the officers involved in this incident did not fully comply with the Commission’s minimum standards; therefore, the officers’ seizure of respondent’s contraband was invalid under state law. Our recent decision in Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), and the rationale upon which it is premised, requires us to reject the respondent’s argument.
In Moore, unlike the instant case, there were fully qualified officers involved in the search made subsequent to Moore’s arrest, which had been effected by unqualified officers or ones not meeting the Commission’s minimum standards. We indicated that, under § 12-9-108(a), the actions of unqualified officers did not invalidate actions taken by qualified officers or suggest that an exclusionary rule should be applied. In refusing to apply the exclusionary rule, this court’s reasoning was not limited to the mere fact that there were qualified officers involved in the search, but instead the court reasoned and held as follows:
The exclusionary rule is designed to deter unlawful police conduct. It compels respect for the Fourth Amendment by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217 (1960). Here, we are not dealing with unlawful police conduct which constitutes a violation of the Fourth Amendment and, accordingly, we are not compelled by federal law to apply the rule. Still, we may apply it as a matter of state law if we deem it proper. See State v. Shepherd, 303 Ark. 447, 798 S.W.2d 45 (1990). In this case, we do not think it is fitting to apply the exclusionary rule on state grounds. The goal of the statute at issue is to compel police department administrators to check the backgrounds of those seeking to become officers, and to hire only psychologically qualified persons to serve as policemen. It is a statute which deals with standards for employment. It is not a statute which deals with police conduct. The goal of this statute and the goal of the exclusionary rule are different. Therefore, we decline to apply the exclusionary rule on state grounds. See Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).
Consistent with our decision in Moore, we decline to read § 12-9-108(a) as requiring the application of the exclusionary rule when, as here, no police misconduct has occurred.
While the court of appeals did not reach the issue nor does the state brief it, the respondent, citing Ark. Code Ann. § 15-41-203 (1987), also contends the Game and Fish officers were not authorized by law to search vehicles. We find no merit to this argument.
Clearly, Game and Fish officers are empowered to make arrests for violation of the game and fish laws. Ark. Const, amend. 35, § 8. In making such arrests, those officers may also conduct a search of the person or property of the accused (including his vehicle) in accordance with A.R.Cr.P. Rule 12. See in particular A.R.Cr.P. Rules 12.1 and 12.4. PIere, the wildlife officers witnessed a hunting violation by the respondent, and the rifle and hunting jacket, in obvious view in respondent’s truck, were connected with the offense with which respondent was arrested and charged.
For the reasons given above, we reverse the court of appeals’s decision, thereby reinstating the trial court’s ruling denying the respondent’s motion to suppress.
Holt, C.J., Dudley and Brown, JJ., dissent.
We note that the Arkansas Court of Appeals did not have the benefit of the Moore case when this case was before it for consideration and decision. | [
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Per Curiam.
James A. Duty petitions for certiorari seeking to have this court review the record of the disposition of a complaint he filed with the respondent, Arkansas Judicial Discipline and Disability Commission. We deny the petition.
The petitioner filed a notice with this court that he wished to appeal from the disposition of a complaint he has filed with the commission. He then filed a document styled “Petition for Writ of Certiorari to Complete the Record,” and asked that copies of the commission record of the disposition of his complaint be fur nished to him.
Rule 12F of the commission’s rules provides that we may grant certiorari to bring before this court any action or failure to act on the part of the commission. There is no provision in the rules for appeal other than by a judge who was made a respondent before the commission. The petitioner is acting pro se. Despite the wording of the documents he had filed in this matter, we sense that he seeks review of the commission’s disposition of his complaint. The only basis upon which he could possibly obtain review is the certiorari provision of Rule 12F.
Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy. Sexton v. Supreme Court Comm. on Prof. Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). While it is true that the petitioner has no right of appeal from the commission’s decision, the petition makes no allegation of an error on the face of the record.
Petition denied.
Hays and Glaze, JJ., dissent. | [
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Otis H. Turner, Justice.
The appellant, Barbara Moore, appeals from a conviction of multiple felonies resulting in a collective sentence to a term of 42 years. She was convicted of possession of methamphetamine, criminal possession of explosives, felony possession of firearms, and criminal use of prohibited weapons.
The charges against the appellant were joined with similar charges against her husband, Allen Rene Moore. Following the joint trial, Mr. Moore was also convicted, and his sentence was affirmed by this court on November 5,1990. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).
The appellant argues eleven points of error in seeking a reversal, none of which merit reversal of the convictions.
On February 12, 1989, the Clinton Police Department received a report that a man and woman in a U-Haul truck had given two different names while inquiring about rental property. Later on the same date, Officer Dewey, while patrolling U.S. Highway 65, noticed the U-Haul truck occupied by the Moores. Dewey had received information earlier in the day about a couple in a U-Haul truck, but he testified that his attention was drawn to the truck in this instance because the vehicle was crossing the highway center line in an unusual and dangerous manner.
Officer Dewey stopped the truck, and when neither the appellant nor her husband could produce a vehicle operator’s license, they were taken to the local Sheriffs Department. There they were turned over to the sheriff and Officer Barnett. Upon Officer Barnett’s request, Mr. Moore gave permission for a search of the truck for identification. When the officers found a gas mask, they terminated the search and notified State Police investigators. About 10:15 p.m. Investigator Rodney Combs of the Arkansas State Police arrived and was advised that Mr. Moore had consented to a search of the vehicle. Officers raised the back door of the truck and discovered containers of chemicals. There was a heavy odor of phenylactic acid, one of the chemicals used in making amphetamine and methamphetamine.
The appellant and her husband were then arrested and read their Miranda rights. Mr. Moore signed a consent form for searches of the truck and the parties’ motel room. A further search of the U-Haul vehicle produced firearms, explosives, chemicals, and laboratory equipment. Based on information received from Allen Moore, the police located a drug laboratory in Stone County on the following day.
I.
The appellant first argues that Officer Dewey was unqualified and that all of the evidence obtained as a result of her arrest should have been suppressed.
The same argument was asserted in Moore v. State, and we there held that although the initial arrest was by an uncertified officer, that arrest was for a traffic violation. All of the subsequent actions were taken by qualified officers, and all searches were made pursuant to consent granted.
The statute in force at the time provided that any action taken by an unqualified officer shall be invalid. In construing the statute, we have held that the “charge” made by an unqualified officer would be invalid. Grabel v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). The charges asserted against the appellant were by prosecutor’s information, not an officer’s citation. We therefore are not concerned with the validity of the charging instrument and decline to apply the exclusionary rule. For a full discussion of this point, see Moore v. State, 303 Ark. at 517.
II.
The appellant next argues that the evidence obtained flowed from a pretextual arrest and should have been suppressed. This issue was not properly raised below or preserved for appeal, and we decline to consider arguments not properly raised before the trial court. Moore v. State, 303 Ark. at 518.
III. & IV.
The appellant asserts in her third point for reversal that the trial court erred in failing to suppress as involuntary the statements made by her husband. She claims, in her fourth point, that the evidence obtained through those statements should have been suppressed.
Both of these issues are without merit. The appellant is without standing to object to alleged violations of the rights of a co-defendant. We have often said that the right against self-incrimination is a personal right not available to a co-defendant. See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). Also, an accused can only invoke the exclusionary rule to suppress evidence where his or her own constitutional rights have been violated. Goodwin v. State, 295 Ark. 385, 749 S.W.2d 657 (1988).
The appellant insists that this case is distinguishable from Scherrer in that these co-defendants were tried together rather than in separate trials. No cases are cited by the appellant in support of her argument, and such a distinction does not appear to be supported by the language of the Arkansas cases. See Mock v. State, 19 Ark. App. 280, 725 S.W.2d 1 (1986), where three defendants were jointly tried, and each was found to have no standing to assert the Fourth Amendment rights of the others.
V.
The appellant next contends that the trial court erred in not suppressing statements of the co-defendant that may have implicated her with respect to the charge of criminal possession of explosives.
The appellant filed a timely motion seeking to suppress all of her co-defendant’s statements which implicated her in the various crimes charged. The trial court granted the motion only insofar as the co-defendant’s statements detailed a principal role by the appellant.
The appellant, under the court’s ruling, would have been entitled to have any reference to her criminal activity deleted from the co-defendant’s statements. See Moore v. State, 279 Ark. 296, 761 S.W.2d 894 (1988); see also Richardson v. Marsh, 481 U.S. 200 (1987). However, in this instance there is no showing that the appellant ever pursued this matter any further after submitting the general motion to suppress. Nor is there a showing that she objected when the statement was admitted into evidence or requested that specific or implied references to her be expunged before introduction of the statement by the state. It cannot be said that the entire statement of Allen Moore was inadmissible; therefore, the appellant had the burden of pointing out any alleged inadmissible portions at or prior to the admission of the statement. See Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). Having failed to meet this burden, the appellant is unable to present a meritorious argument on this point.
VI.
For her sixth point of error, the appellant argues that the trial court should have suppressed the evidence seized from the U-Haul vehicle and motel room because that evidence was obtained in violation of her constitutional rights.
The appellant made a timely motion to suppress the evidence seized from the vehicle and trailer and that motion was denied. No specific request for suppression of the evidence secured from the motel room was ever made by the appellant, and any objection in that regard is therefore not preserved for appeal. Only specific objections made at trial are preserved for appeal. Parrette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). Further, the appellant has no standing to contest a search of the U-Haul vehicle since there was no showing that she had a proprietary interest or legitimate expectancy of privacy in it. See Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990).
On the merits, it is clear that the searches of both the vehicle and motel room were conducted with the consent of Allen Moore and do not violate the Fourth Amendment rights of this appellant. Arkansas Rule of Criminal Procedure Rule 11.1; Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987).
VII.
The appellant contends that the court erred in denying her motion to suppress a plastic vial seized in a search of her person conducted at the police office. The record, viewed in the light most favorable to the appellee, shows that the appellant was arrested at the sheriffs office and that a search of her person was conducted by a matron after the arrest.
A search incidental to a lawful arrest is a valid search. See Arkansas Rules of Criminal Procedure Rule 12.1. In any event, a search of the person, when performed substantially contemporeanously with the arrest, is permissible. See Horton v. State, 262 Ark. 211, 555 S.W.2d 226 (1977). The appellant’s argument on this point is without merit.
VIII.
The eighth assignment of error is an assertion that the trial court should have granted the appellant’s motion for a mistrial. The counsel for co-defendant Allen Moore, asked Officer Combs, during cross-examination, what evidence he had to show that Allen Moore was manufacturing methamphetamine. After listing the evidence, the officer, when pressed, said there were “other considerations.” Counsel then responded, “Well, I’m sure if they [the other considerations] were for him [Allen Moore] you would be telling us about — against him you’d be testifying to them?” The state objected, asserting that the door had been opened for the state now to inquire concerning the defendant Allen Moore’s prior criminal record, and the court disagreed. However, the state requested that the jury be admonished and the appellant made no objection to the giving of an admonition. The court then made the following statement to the jury:
THE COURT: Ladies and gentlemen of the jury, there has been some interchange here between attorney and witness regarding other considerations and Mr. Foster, the Prosecuting Attorney, has objected to Mr. Lewis’s referral to these matters and this witness said that there are other considerations, but there are certain legal rules of evidence that keeps him, at this point in time, from telling you about those other considerations. It’s not because it’s injurious to the State of Arkansas. It’s just a rule of evidence that doesn’t allow him to go any further than he has gone. Now, if Mr. Lewis and Ms. Baker continue to pursue this matter, then this Court may very well rule that they have opened the door and I’ll let this man tell other things that he has no right to tell at this point in time. So I hope you understand that. . . . (TR. 394, 395.)
It is not clear from the record that the appellant ever stated specifically her objection, except that the admonition was a “comment on the evidence.” Clearly, the trial court properly instructed that the jury was not to concern itself with the court’s rulings on evidentiary matters. Any objectionable comment should have at that time been clearly and timely brought to the attention of the trial court. See Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1986). There is no constitutional prohibition against the trial court commenting on the law as opposed to the facts. McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986).
The instruction by the court was proper and a correct statement of existing law. The line of questioning by the co-defendant’s counsel was at the threshold of an “opening of the door” to allow the state to introduce evidence not otherwise admissible. See Clark v. State, 292 Ark. 69, 727 S.W.2d 853 (1987). It is the role of the trial court to maintain the impartiality of a trial, and, unless he clearly exceeds proper bounds in carrying out that role, the appellate court will not reverse. See Kitchen v. State, 271 Ark. 1, 607 S.W.2d 305 (1980).
The granting of a mistrial is an extreme remedy which will be resorted to only where there has been an error so prejudicial that justice cannot be served by continuing the trial. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). No such prejudice is shown here.
IX.
For her ninth point of error, the appellant contends that Ark. Code Ann. § 5-73-104 (1987), the statute defining the offense of criminal use of a prohibited weapon, is unconstitutionally vague. The thrust of the appellant’s argument is that the statute refers to a “sawed-off shotgun” without defining the weapon so qualifying.
A statute will not be declared unconstitutional unless it clearly and unmistakenly conflicts with the Constitution. Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988). A statute meets a due process challenge of vagueness if the statute is clear enough to provide a standard of conduct for those whose activities are proscribed, as well as a standard for police enforcement and for ascertainment of guilt. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).
Without question, the barrel of the shotgun found in the vehicle occupied by the appellant had been “cut-off,” and the extent to which it had been shortened is not relevant to this prosecution. This court considers words in a statute by giving them their usual and ordinary meaning. Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990). A shotgun with a barrel shortened by cutting off a portion thereof constitutes a “sawed-off shotgun.” The appellant’s challenge to the statute is meritless.
X.
The appellant next contends that the trial court should have granted her motion for directed verdict on the charge of possession of a controlled substance.
The record reflects that at the close of the state’s case, the appellant moved for a “directed verdict on each of the other charges... on the basis that the state has not substantiated their case.” On appeal, the appellant now contends with specificity that: first, the state failed to prove the appellant actively or constructively possessed methamphetamine since some of the substance was found in a motel room, and no additional factors were shown to connect the appellant to the substance; and second, the state failed to show the substance was in a “usable amount.” See Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990).
Under a general motion for a directed verdict, these specific objections now being made were presumably not considered by the trial judge as there is no such indication in the record. The specific objections were not properly submitted with a fair opportunity for consideration by the trial court, and we will not now consider them upon appeal. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983). See also Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990).
Even if we should reach the merits of the appellant’s contention, a vial containing 100 milligrams of methamphetamine was seized from the appellant’s person during a search at the jail. That fact, standing alone, is sufficient to overcome a general motion for directed verdict as made by the appellant.
XI.
Finally, the appellant argues that a verdict should have been directed for her on the charges of felon in possession of a firearm, criminal use of a prohibited weapon, and criminal possession of explosives.
These counts were the “other charges” referred to by the appellant in making her general motion for directed verdict at the close of the state’s case. This is the same argument as that advanced in the appellant’s Point X, and the same holding applies here: the argument is not preserved for appellate review. In any event, the evidence submitted on each charge is abundantly sufficient to sustain a jury’s finding of guilt.
It is uncontroverted that the appellant was a felon; that the appellant was a joint occupant of the premises where the contraband was discovered; and the appellant was an occupant of the vehicle containing the contraband. She was the wife of the co-defendant who was operating the vehicle. The U-Haul vehicle had been rented in Texas, and the appellant had been traveling with her husband. Officers found weapons in the vehicle in plain and unobstructed view. They also discovered drugs and drug paraphernalia in the motel room where the appellant had been staying. The U-Haul vehicle contained the explosives, the sawed-off shotgun, and the chemicals utilized in making methamphetamine. Finally, a vial containing methamphetamine was discovered on the appellant’s person when she was searched.
Taken collectively, all of the evidence was sufficient to create an inference of knowledge and joint possession and thus to sustain the jury’s verdict. See Hartman v. State, 258 Ark. 1018, 530 S.W.2d 366 (1975).
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Dale Price, Justice.
This is an appeal from a decision granting the appellee’s motion for summary judgment. The four points for reversal concern its entry. We find no merit and affirm.
The appellee, American River Transportation Company (American), a subsidiary of Archer Daniels Midland Company, brought suit against the appellant for nonpayment of barge freight charges. The appellant, Robert Keenan, Jr., personally, d/b/a Superior Grain Company, Inc. (Superior), filed a general denial, alleging the proper party was Superior and not Keenan personally. Keenan subsequently filed a motion for summary judgment, contending there was no material issue of fact inasmuch as Superior had merged with Keenan Cotton Gin & Grain Elevator, Inc., as of April 1, 1986. A copy of the certificate of merger was attached to the motion. The motion was denied by the trial court upon its determination there could be a question of fact as to whether Keenan signed as an individual or on behalf of Superior. Keenan counterclaimed for abuse of process and later amended his answer, adopting pervious pleadings and alleging he did not do business with American personally. He further alleged in his amended answer that if paperwork was erroneously made out to Superior, it was a mistake and the contract should be reformed. Keenan was deposed by American, and American thereafter filed its motion for summary judgment which the trial court granted.
Keenan first alleges reversible error in the trial court’s granting of American’s motion for summary judgment. He contends there were genuine issues of material fact which should have been resolved by the trier of fact, and American failed to carry its burden of proof. It is well settled that summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and affidavits show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ARCP Rule 56. Once the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985).
Because this appeal is from the trial court’s granting of summary judgment, our review is limited and focuses on the pleadings, deposition testimony and other documents filed by the parties in support of their respective arguments.
Keenan executed a broker contract with American on November 5,1987, which provided for the shipment of soybeans on two barges. The barge freight totaled $21,447.24. Keenan was the corporate president of Superior. At the time of the contract’s execution, Superior had merged into Keenan Cotton Gin & Grain Elevator, Inc. No one was aware of the merger other than Keenan and his CPA. American was listed as the “seller” and Superior/Robert Keenan the “buyer” in the broker contract. Keenan stated in his deposition that he had read the broker’s contract, knew what it contained, and signed it. He further stated by deposition that he continued to do business under the name of Superior to July, 1988, and never notified Marine Freight Exchange, Inc. (the broker), or American that Superior had merged into another corporation. The barge freight was never paid and Keenan admitted there was no reason to doubt the accuracy of the charges.
American contends the above facts were sufficient for the trial court to rule as a matter of law that Keenan was personally liable for the debt incurred on behalf of Superior. Upon Superior’s merger with Keenan Cotton Gin & Grain Elevator, Inc., Superior ceased to exist and any contracts entered into by or on behalf of Superior would be contracts with a nonexistent entity. The merger occurred under former Ark. Stat. Ann. § 64-705(B) (Repl. 1980), which provided as follows:
Subject to Section 77 [§ 64-708] infra, the separate existence of all corporations parties to the plan of merger or consolidation, except the surviving or new corporation, shall cease.
American correctly recites the rule that one who contracts as an agent in the name of a nonexistent or fictitious principal renders himself personally liable on the contract so made.
The trial court stated at the hearing on American’s motion for summary judgment that the controlling document was the broker’s contract executed by the parties on November 5, 1987, and that its effect was to make Keenan personally liable. Because of the trial court’s determination that Keenan was personally liable to American, there could be no remaining issue of material fact to be tried. Accordingly, summary judgment was appropriate.
The appellant alleges error in the granting of American’s motion for summary judgment because American had not complied with the appellant’s requested discovery. The appellant served interrogatories on American on September 30, 1989, and in an interrogatory asked American to provide the names of all persons who would be witnesses at trial. On November 13,1989, American stated in its response to that interrogatory “[p]ersons who will be witnesses will be determined after deposition of the Defendant and this response will be supplemented.” Keenan was deposed by American on October 17, 1989. American filed its motion for summary judgment on November 16 and Keenan objected to American’s motion on the basis that American had not complied with Keenan’s discovery requests. Keenan complained at the hearing that he had been provided with the name of a witness by American three days prior to the hearing, and the trial court should not have ruled on the motion until Keenan was furnished with responses to his interrogatories.
We sustained the same argument on appeal in First National Bank, Guardian v. Newport Hospital & Clinic, 281 Ark. 332, 663 S.W.2d 742 (1984). The appellant there contended the information and documents requested from the appellee were crucial to its case and were relevant to the issues to be litigated. It was clear to this court that the information sought by the interrogatories and requests was pertinent to the issues of the case. In Mixon v. Chrysler Corporation, 281 Ark. 202, 663 S.W.2d 173 (1984), we held the grant of summary judgment was proper where unanswered interrogatories would not have produced evidence of sufficient force to remove the case from the realm of speculation and conjecture, regardless of the answers.
In the instant case, the appellant has not demonstrated any prejudice as a result of American’s failure to supplement Keenan’s interrogatory which merely requested the names of any witnesses American intended to call at trial. We are unable to say that the trial court erred in granting summary judgment on this basis inasmuch as Keenan failed to demonstrate the answer would change the status of the litigation.
Keenan contends the trial court committed reversible error by granting summary judgment because the motion was not timely filed pursuant to ARCP Rule 56(c). It provides in part as follows: “The motion shall be served at least 10 days before the time fixed for the hearing.”
As previously noted, American’s motion was filed on November 16 and the matter had been set for a jury trial on November 21. Keenan filed a response to the motion on November 20, and the trial court considered the motion on November 21. The timeliness of the motion for summary judgment was raised by Keenan both in his response and at the hearing. The notice requirement was clearly not complied with and as this court stated in Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W.2d 187 (1975), such requirements are not mere formalities and should not be treated so lightly as to deprive a party of an opportunity to present rebutting evidence and argument. Unless it is manifest that the error is prejudicial, reversal is not warranted. See Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978).
Under the circumstances, we fail to see how Keenan was prejudiced by American’s failure to comply with the notice requirement of ARCP Rule 56(c). Keenan filed a response to the motion and had the opportunity to argue it. Accordingly, we cannot say Keenan was deprived of the opportunity .to present rebutting evidence and argument.
Finally, Keenan contends the trial court erred in dismissing his counterclaim with prejudice. He alleges the dismissal was not the appropriate relief and was precipitated by the erroneous entry of summary judgment by the trial court. American correctly states that a counterclaim based upon malicious prosecution cannot be determined until trial of the underlying action for breach of contract. Keenan argues there was no legal basis for the granting of summary judgment and there is therefore no basis for the dismissal with prejudice of his counter claim. Our holding that summary judgment was proper disposes of this argument.
Affirmed. | [
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Dale Price, Justice.
The issue in this appeal is whether the trial court erred in granting the appellee’s motion for summary judgment. We affirm.
The appellant, Ruth Brandenburg Anderson, married William M. Anderson, Jr., in October, 1981. They executed an antenuptial agreement in which the appellant agreed to receive nothing from Mr. Anderson’s estate upon his death. A new will was subsequently executed by Mr. Anderson, leaving the appellant approximately one-third of his real and personal property. The will was prepared by Henry Britt and nominated the appellee, First National Bank of Hot Springs (First National), as executor.
Mr. Anderson died on January 15, 1984, and the will was presented to probate court. The children of the appellant’s deceased husband filed a will contest. First National was appointed administrator of the estate until the will contest was settled. Robert Hargraves was hired by First National as attorney for the estate. On August 6, 1984, the appellant and her deceased husband’s children entered into a family settlement agreement which resolved the issues raised by the will contest and gave the appellant property from the estate.
The appellant alleged in her complaint against First National that (1) First National breached its fiduciary duty by hiring an attorney other than Henry Britt contrary to an agreement between William Anderson, Jr., and First National; (2) First National breached its fiduciary duty by refusing to defend the will in the will contest action and by coercing the appellant into signing the family settlement agreement; and (3) First National’s conduct constituted the tort of interference with an inheritance.
First National filed its motion for summary judgment contending that there was no contractual agreement between First National and William Anderson, Jr., and the appellant had sustained no damages; no consideration was given for First National’s alleged promise to hire Britt; the appellant was not coerced into signing the family settlement agreement; and the appellant was barred by principles of estoppel from denying the validity of the family settlement agreement.
The trial court entered summary judgment against the appellant stating there were no genuine issues of material fact to be decided. The appellant argues on appeal that the trial court erred in granting summary judgment since disputed issues of material fact existed.
It is well settled that summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and affidavits show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ARCP Rule 56. Once the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985). Because this appeal is from the trial court’s granting of summary judgment, our review is limited and focuses on the pleadings, deposition testimony and other documents filed by the parties in support of their respective arguments.
The appellant first contends there was a genuine issue of material fact as to whether First National breached its fiduciary duty by refusing to hire Henry Britt as attorney for the estate. Mr. Britt had prepared the last will of Mr. Anderson, and it was alleged by the appellant in her complaint that Mr. Anderson had agreed to nominate First National as executor on the condition that First National hire Britt as attorney. The appellant testified by deposition that Gene Parker and Mike Dowling, officials of the trust department at First National, entered into an agreement with Mr. Anderson to hire Britt as attorney for the estate. She claimed this occurred following a board meeting in either September or October of 1983. Her only knowledge of the alleged agreement was obtained from conversations with Mr. Anderson. The appellant stated in her answers to interrogatories that Britt was a close personal friend of her deceased husband and that Britt would have served impartially and fairly for all beneficiaries under the will. It was her contention that Robert Hargraves, the attorney hired by First National, was biased and favored the children of Mr. Anderson. The appellant stated in her deposition that First National breached its fiduciary duty by not hiring Britt because it was standard procedure in Hot Springs to hire the attorney who prepared the will to represent the estate.
First National submitted the affidavits of Gene Parker and Mike Dowling, officers of the trust department. Each denied the existence of an agreement with Mr. Anderson to hire Britt as attorney for the estate. The appellant was unable to meet proof with proof as to the existence of an agreement by First National to hire Britt as attorney for the estate. Accordingly, there was no remaining issue of material fact to be tried in this regard and summary judgment was appropriate.
The appellant next contends there was a genuine issue of material fact as to whether First National breached its fiduciary duty by its refusal to defend the will in the will contest proceeding and by its acquiescence in the execution of the family settlement agreement. In support of this contention, the appellant claims First National made threats to her former attorney to the effect that it would withdraw as executor if she did not sign the family settlement agreement. The affidavits of Gene Parker and Mike Dowling provided that they never communicated to the appellant that First National would withdraw as administrator if the appellant did not sign the family settlement agreement. Furthermore, the affiants stated they did not place any kind of pressure on the appellant or encourage her in any way to sign the family settlement agreement. The appellant acknowledged in her deposition that no one from First National intimidated her in this regard. She stated the intimidation was through her deceased husband’s son-in-law and his attorney, and she “attributed this to the bank [First National] because they did not do their duty.” The appellant was again in the position of being unable to meet proof with proof and there was no remaining issue of material fact to be tried in this regard.
A cause of action for the tort of interference with an inheritance was stated in the appellant’s complaint. She alleges in her final assignment of error that First National failed to move for summary judgment on this point, and it was error for the trial court to grant summary judgment on this cause of action. The record reflects First National moved for summary judgment on the basis there was no genuine issue as to any material fact in the appellant’s case and addressed the appellant’s claim for loss of inheritance in its brief in support of summary judgment.
The appellant stated in her deposition that she understood the provisions of the family settlement agreement, acknowledged her signature on it, received benefits from it, and subsequently filed suit for the alleged breach of the agreement by her deceased husband’s children. The trial court found there was no material issue of fact to be decided in this regard, and properly granted First National’s motion for summary judgment on the appellant’s claim of interference with an inheritance.
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John A. Fogleman, Justice.
This appeal invokes the application of the automobile “guest statutes” [Ark. Stat. Ann. §§ 75-913 and 75-915 (Repl. 1957).] Appeal was taken from a judgment based upon a jury verdict after the trial judge denied a motion for a directed verdict at the conclusion of the evidence offered on behalf of appellee. Appellant then rested without presenting any testimony and renewed the motion which was again denied.
The suit was brought by appellee Bertha J. Evans, as mother and next friend of Martha Jane Evans, a minor, against appellant Jake Carden, also a minor. Viewing the evidence in the light most favorable to ap-pellee, the facts are:
Martha Jane Evans, aged 14 at the time, was riding as a passenger in an automobile being driven by Jake Carden, then 17 years of age, on Sunday evening, December 19, 1965. The two had been going together since the late part of the summer, having had dates on Fridays, Saturdays and Sundays. They frequently went in his automobile. He normally drove fast — usually not under 60 miles per hour, most of the time around 70. She had, on occasion, told him to slow down. On most of these occasions he ignored the request. On some of them he slowed down some, but not a lot. On the night of December 19, he wasn’t driving any differently from the way that she knew he always drove, except that he didn’t ordinarily take his eyes off the road or drive with one hand. On this particular evening Carden came to her house around 6:30 and they left for town around 7 or 7:30. They went to Bill’s Tastee Queen and got something to eat. After about a thirty-minute stay at Bill’s, they went to Bigelow where Carden lived. On the way to Bill’s, Martha Jane had occasion to ask Carden to slow down but he did not do so. On the return trip from Bigelow, while traveling on Highway No. 113 at about 11 p.m. at a point half way between Houston and Oppello, out in the open country, the car ra.n off the road shortly after the vehicle had come out of a long curve. As a result, Miss Evans was' thrown out of the car and suffered severe, painful and disfiguring injuries about the mouth and face. Just before the car ran off the road, Jake was helping her, at her request, to adjust or unfasten her seat belt. In order to do so, he looked off the road and had only one hand on the steering wheel. They were in a curve at the time. When she asked him to help he was driving around 70 miles per hour and she asked him to slow down but he did not do so. He ignored her objections to his not slowing down. His eyes were off the road for at least one minute. He negotiated at least one curve safely without ever looking at the road. While she could not say definitely that Carden was driving faster than 60 miles per hour, she testified that the speed limit was not 60 but she could not remember what it was at the point. Appellant admitted to the investigating police officer that he was driving too fast and that he had looked over at Miss Evans momentarily and left the highway.
We find that there was error in failure to direct a verdict for appellant. There can be no liability on the part of young Carden unless there is evidence to show that his vehicle was willfully and wantonly operated in disregard of the rights of others — particularly Martha Jane Evans. While the evidence undoubtedly shows negligence, perhaps even gross negligence, on his part, it is not sufficient to show the required willfulness and wantonness. Splawn, Admr. v. Wright, 198 Ark. 197, 128 S. W. 2d 248; Edwards v. Jeffers, 204 Ark. 400, 162 S. W. 2d 472; Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723; Steward v. Thomas, 222 Ark. 849, 262 S. W. 2d 901; Scott v. Shairrick, 225 Ark. 59, 279 S. W. 2d 39.
In order to constitute the willful misconduct required, there must be a conscious failure to perform a manifest duty in reckless disregard of natural or probable consequences to the life or property of another, as distinguished from gross negligence which does not involve such reckless disregard of consequences. Splawn v. Wright, supra. There must be a willfulness, a wantonness and indifferent abandonment in respect of conse quences, applicable alike to self and guest. Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723. The burden of proof to show the required conduct was upon appellee. Poole v. James, 231 Ark. 810, 332 S. W. 2d 833; Splawn v. Wright, supra. Before a driver will be found guilty of this conduct, the evidence should be unusually strong and convincing. Splawn v. Wright, supra.
This case is uniquely similar to the Splawn case. There the driver of the vehicle was driving at a speed of 40 to 45 miles per hour on a slick, muddy road in bad visibility conditions due to rain and fog when his vehicle went off the road after having negotiated a curve. He lost control of the car after he reached down to turn on or adjust the heater. He had paid no attention to the objections of the injured party that he was driving too fast. There was testimony that most any speed would have been hazardous. This court reversed and dismissed the case because of failure of the trial judge to direct a verdict for the administrator of the estate of the driver who was killed. Even the elements of bad visibility and bad road surface conditions are absent here.
In another case reversed and dismissed for refusal to direct a verdict for a driver and against his guest, it was said that wantonness, in the sense of the statute, is a mental attitude shown when a person, notwithstanding his conscious and timely knowledge of an approach to an unusual danger and of common probability of injury to others, proceeds into the presence of danger, with indifference to consequences and with absence of all care. Ellis v. Ferguson, 238 Ark. 776, 385 S. W. 2d 154.
In Edwards v. Jeffers, 204 Ark. 400, 162 S. W. 2d 472, there was evidence that the injured passenger, as well as the husband of the host driver, had called the latter down two or three times about her excessive speed on a road with curves on which the gravel was loose, before she lost control of her vehicle as she negotiated a “square” turn at a speed of 60 or 70 miles per hour or faster and left the road some quarter of a mile beyond the curve. This case was also reversed and dismissed.
Appellee relies on the holding in Spence v. Vaught, 236 Ark. 509, 367 S. W. 2d 238, as authority for affirmance of this judgment. There is a great distinction between this case and that, so it does not support appellee’s position. There testimony was introduced tending to show that appellant, after her car began to make first a singing, then a grinding noise, and finally a swerve lasting over some period of time, ignored warnings from her guest to slow down from a speed of 50 to 60 miles per hour and see what was the matter. The court found that the failure of appellant to slow down after the grinding noise started and the car swerved more violently, although twice warned to do so, would constitute willful or wanton negligence. We have no such evidence here. As was said in Steward, v. Thomas, 222 Ark. 849, 262 S. W. 2d 901, acting negligently on the spur of the moment is quite a different thing from persistent pursuit of a course of driving in a reckless and dangerous manner over the protest of the occupants of his vehicle. In view of our own holdings we do not find cases from other jurisdictions cited by appellee to be persuasive, even if applicable.
In view of the disposition we make of the case, we find it unnecessary to determine whether the action of the trial judge in forcing appellant to file an answer and go to trial on the same day the court appointed his mother as guardian ad litem to defend for him constituted an abuse of discretion.
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Conley Eyed, Justice.
Appellant, Gene Bryan Kennedy, questions the authority of the chancellor, before entry of a final divorce decree, to reopen the case to permit the wife, Helen Ovita Kennedy, to introduce certified copies of deeds to the real property jointly owned by the parties.
The record shows that at the beginning of the hearing appellant refused to stipulate that the real property was jointly owned, but that he did stipulate to a description of the property. After the close of the hearing the chancellor found that the wife was entitled to a divorce and that no effort had been made to show how the title to the real estate was held. He concluded that he would have to assume that the title was in appellant, entitling the wife to one-third for life. The chancellor hesitated to order a sale of the property for purposes of making a division. Hoping that counsel could work out a division, he gave them until a day certain to do so, with the understanding that if a division had not been worked out by that time, he would take the matter in his own hands and make a distribution.
Before the day certain the wife filed a motion to reopen the case to introduce certified copies of deeds showing the joint ownership of certain real property involved. The chancellor granted the motion, held a hearing and incorporated into the final decree a sale and distribution in accordance with the title as shown by the deeds.
Appellant either mistakes the chancellor’s oral statement dictated into the record after the first hearing as a final decree or misunderstands the nature of a Bill of Review. As to the latter, its function is to permit the chancellor, under certain limited circumstances, to review and reverse a final decree already entered of rec ord. A Bill of Review has no application to the discretion vested in a chancellor to reopen a case before the entry of final decree upon the record. Turner v. Tapscott, 30 Ark. 312 (1875); Tollett v. Knod, 210 Ark. 785, 197 S. W. 2d 744 (1946); McCullough v. Leftwich, 232 Ark. 99, 334 S. W. 2d 707 (1960).
Nor can we find any merit to appellant’s contention that the chancellor abused his discretion in reopening the case.
Affirmed. | [
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George Rose Smith, Justice.
This is a suit for divorce brought by the appellant, Arlene Dickerson, on the ground of personal indignities rendering her condition in life intolerable. The chancellor dismissed the complaint, finding that even though it is probably impossible for the parties to continue to live together the plaintiff failed to prove her asserted ground for divorce. The only issue here is whether that conclusion is against the weight of the evidence.
The couple was married in Ozark in 1948, when he was 21 and she was 17. They were living in Fort Smith when they separated nineteen years later. Pretty much by common consent the husband moved to an apartment, allowing his wife to occupy the family home with their two children, a boy of 18 and a girl of 15. Since the separation Dickerson has voluntarily contributed $150 a month to the support of his family.
Mrs. Dickerson disclaims any suggestion of violence, physical abuse, or infidelity on the part of her husband. Her grievances are twofold: First, she blames him for the couple’s difficulty in really communicating with each other for some time before their estrangement. Secondly, she considers her husband’s handling of the family finances to have been so niggardly and tyrannical as to amount to an intolerable affront to her dignity and peace of mind. Mrs. Dickerson testified that for a year or more before the separation she was under such nervous tension that she broke out with hives and was compelled to take tranquilizers for relief. Her condition improved materially after her husband moved out of the house.
Upon the first point Mrs. Dickerson testified that when she tried to discuss their problems Dickerson would refuse to talk about their difficulties and would instead read the paper or leave the house. Dickerson denied that testimony, saying that during their entire married life there were only one or two occasions when he refused to talk with his wife. On the other hand, he .accuses her of having declined to discuss financial matters (which were evidently of abnormal importance to him).
It is fair to say that by far the greater part of this couple’s unhappiness stemmed from money mat ters. Both have been employed for' a number of years. At the time of the trial Dickerson’s take-home pay was abont $555 a month and Mrs. Dickerson’s was about $65 a week. Dickerson has long taken the position that he and his wife should each hear a definite part of the family expenses. His responsibility has included the purchase of food, payments on the house, insurance, utility bills, his own personal expenses, and part of the children’s clothing and school expenses. His wife’s part in the family financial scheme has embraced the purchase of her clothes, the acquisition of some furniture, payments upon her car, and lesser matters that we need not detail.
It is quite apparent that for the past two or three years what Mrs. Dickerson calls her husband’s obsession about money has been a constantly growing source of irritation to her. For a while the couple maintained a joint bank account, but if Mrs. Dickerson wanted to write a check for an outlay that Dickerson regarded as her personal responsibility he required her to pay him the amount of the check in cash. She finally opened her own account. Again, Dickerson customarily picked up and paid for only his own dry cleaning, leaving his wife to make extra trips to get the rest of the family cleaning. Dickerson has undoubtedly been somewhat secretive about his own income and bank accounts — all part and parcel of the undue emphasis he appears to place upon financial security.
We are not convinced that Dickerson’s peculiarities in the management of the family’s pecuniary problems should be declared to constitute habitual and intolerable personal indignities to his wife. This case is typical of those in which the chancellor’s opportunity for reaching the right decision is immeasurably superior to ours. Even though he concluded that the parties’ clash of personalities is so great that they are not likely to be able to continue to live together, “such a situation does not warrant the granting of a divorce in the absence of proof that a statutory ground therefor- exists.” Lipscomb v. Lipscomb, 226 Ark. 956, 295 S. W. 2d 335 (1956). Dickerson testified positively that he loves his wife and always will. His attitude may well have been regarded by the chancellor as decidedly more conciliatory than that of his wife. With the testimony in conflict upon many pivotal points, we are not able to say that the trial court’s decision is against the weight of the evidence.
The appellee is directed to pay the appellant’s court costs and briefing expense, together with an additional attorney’s fee of $250.
Affirmed.
Harris, C. J., and Brown, J., dissent. | [
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Carleton Harris, Chief Justice.
From September, 1963, to January, 1965, Lorena Parris, appellee herein, entered into seven separate contracts for dancing instruction with Samuel Osborne, who operated a dance studio in Little Rock, using the Arthur Murray course of instruction under a licensing agreement. Mrs. Parris paid a total amount of $7,745.92 for the instructions contracted for, a part of this sum constituting an advance payment for future lessons. In January, 1965, Mrs. Parris, asserting matters that she felt constituted a breach of contract, directed a written demand to the New York office of Arthur Murray, Inc., appellant herein, for reimbursement of 415% unused hours at $10.00 per hour, or a total of $4,150.00. In April, 1965, after correspondence between appellee’s attorney and the New York attorney of Arthur Murray, Inc., Murray released $2,000.00, which actually belonged to Osborne, but was being held by Murray in escrow. This money was paid to the attorney for Mrs. Parris. Subsequently, appellee filed suit against both appellant and Samuel Osborne for $2,450.00, such sum .representing the cost of the unused lessons, less the amount paid from Osborne’s escrow account. On trial, the jury found in favor of Mrs. Parris against both Osborne and appellant, and from the judgment entered in accord with the verdict, the latter brings this appeal. For reversal, it is first urged that the court erred in refusing to grant appellant’s motion for summary judgment.
The evidence reflects that counsel for appellee, on April, 1965, wrote Mr. Paul Ooonrod, general counsel and assistant secretary for Arthur Murray, Inc., advising as follows:
“Mrs. Parris has agreed to settle this matter with you on the following basis:
(A) Arthur Murray and Sam Osborne will refund a total of $4,150 to Mrs. Parris all of which is to be paid to this office.
(B) Two thousand to be paid immediately and the remaining balance of $2,150.00 to be paid at this office at the rate of $100.00 per month.
(C) The first $100.00 payment to be due and payable on or before the 15th day of each following month, the last payment to be in the amount of $50.00.
If you have any questions regarding this settlement please contact me. Otherwise, I will expect your check for $2,000.00 by return mail.”
Coonrod, on April 13, replied to the letter as follows :
“To clarify this matter I wish to advise you that Mr. gam Osborne, the licensee of the Little Rock Studio, has agreed to make the settlement of $4,150.00 to Mrs. Parris.
We are advancing Mr. Osborne the sum of $2,000.00' which he has on deposit in escrow with us in order to enable him to complete the settlement terms with you..
Accordingly, any note or agreement providing for the payment of the balance of $2,150.00 to Mrs. Parris will be executed by Mr. Osborne alone and we will not be a party to such an agreement.
Please confirm your understanding of the above as soon as possible so that I may forward you the check for $2,000.00.”
Thereafter, on April 15, counsel for appellee replied :
“As set out in your letter of April 13, 1965, I understand that Mr. Sam Osborne the licensee of the Little Rock Arthur Murray Studio is the one who has agreed to make a settlement of this matter for $4,150.00 and that you are advancing Mr. Osborne $2,000.00 by return, mail. ’ ’
On April 20, Mr. Coonrod then acknowledged receipt of this letter and stated:
“In accordance with your request, I am enclosing herewith our check payable to your order as attorneys in-the sum of $2,000.00.”
After the filing of the suit, Arthur Murray, Inc., moved for summary judgment, supported by the four letters herein mentioned, and an affidavit by Mr. Coonrod. It was asserted that there was no material issue of fact, the letters and affidavit reflecting that Mrs. Parris had entered into an accord and satisfaction with Murray. In opposing the motion, counsel for appellee likewise executed an affidavit.
We cannot agree that the letters and affidavit established an accord arid satisfaction, and we think a fact question was presented. Mr. Coonrod clearly wrote that Mr. Osborne had agreed to make the settlement, .and that appellant was advancing Osborne money (which actually belonged to Osborne) in order to enable the latter to complete the settlement. Further, it is pointed out that Murray “will not be a party to such an agreement.” Counsel for appellee then replied that he understood that Osborne was the one who had agreed to make a settlement, and the company was advancing Osborne the $2,000.00. In view of the other statements made in the letters, it is apparent that this $2,000.00 was to assist the licensee in furtherance of his settlement. It will be noted that none of Coonrod’s letters state that the $2,000.00 is being sent on the condition that appellant be released from possible liability; nor is there any statement in the letters written by counsel for appellee that can be construed as definitely releasing or discharging Arthur Murray, Inc., from any liability. There may well have been grounds for appellant to assert accord and satisfaction, but there were also grounds for appellee to contend otherwise. In other words, the letters, taken together, presented a question of fact concerning what had been agreed upon, and this was therefore a matter to properly be passed upon by the jury.
Appellant contends that there was no substantial evidence to the effect that Osborne breached the contract with Mrs. Parris. Without going into detail, let it be said that there was ample evidence to present a jury question on this point, including the fact that when Mrs. Parris began her dancing lessons, there were six or seven instructors, and in 1965 (when she ceased taking lessons), there was only one instructor qualified to teach the higher rated students. According to Mr. Hillman Johnson, a former instructor at the studio, but now employed by Southwest Truck line of Dallas, that instructor was a disabled veteran, and was suffering from arthritis. Mr. Coonrod testified that, under appellant’s agreement with Osborne, the corporation was permitted to make refunds (from the escrow account). Of course, it would appear that appellant recognized the justness of appellee’s demand for refund, since it paid to her the full amount in Osborne’s escrow account.
It is next asserted that the trial court erred in refusing to direct a verdict for appellant, it being con: tended that there was no testimony which made a jury question on the issue of whether Osborne was a direct agent of Arthur Murray, Inc. We cannot consider this contention, for, though a motion for directed verdict was made at the conclusion of appellee’s evidence (and denied), this motion was not renewed at the conclusion of all the evidence. In Granite Mountain Rest Home v. Schwarz, Admr., 236 Ark. 46, 364 S. W. 2d 306, we said:
“We are unable, under our established procedure, to consider the first point for, reversal, viz., that 4he court erred in not directing a verdict for appellant. A motion for directed verdict was made by appellant at the conclusion of plaintiff’s (appellee’s) testimony, and was denied by the court. Whether this action by the trial court was correct is of no moment, for upon the motion .being overruled, appellant proceeded to offer its evidence. We have held that when one proceeds, after the denial of such a motion, to introduce proof, he waives the error of the court in failing to grant same. [Citing cases.] * * As stated in Wigmore on Evidence, Volume 9, Third Edition, one ‘cannot take advantage of the judge’s original erroneous refusal to diréet a verdict for insufficiency at the time of the first motion if he does not renew the motion at the close of all the evi dence.’ The reasoning employed, is, of course, apparent,, for if one has waived his original motion, and does not renew same, there is nothing to he passed upon by the court at the conclusion of the evidence. No error could have been committed by the court at this point — for nothing was presented.”
We also held in Granite Mountain Rest Home v.. Schwars, Admr., supra, that where no motion for an instructed verdict was requested, the point could be raised in a motion for a new trial questioning the sufficiency of the evidence, but that was not done here (nor there).
It might be added that appellant requested an instruction (which was given) relating to what appellee must prove in order to establish a breach of contract. Since the complaint against Osborne had already been disposed of by the court’s action prior to the case going to the jury, this instruction could only have been given on behalf of Murray. Of course, the liability of appellant on the agency question was predicated upon the acts of Osborne, and appellant’s sole interest in emphasizing that Mrs. Parris must prove that the contract had been breached by Osborne was due to the fact that appellant was being charged as the principal. As stated in Granite Mountain, this action waived the question of the sufficiency of the evidence on that point.
Other requested instructions by appellant related to-the question of third party beneficiary, and accord and satisfaction. The instruction relating to third party beneficiary was modified by the court and given, without objection by appellant. This instruction reads as follows :
“If you find, by a preponderance of the evidence,, that the contract provided for refunds to be made by Arthur Murray Incorporated in excess of the amount already paid to plaintiff, and that a further refund is justified under the terms of the contract, then you may render a verdict in favor of the plaintiff.
“If you find, by a preponderance of the evidence, that the terms of the contract do not contemplate refunds in excess of the amount already paid to plaintiff, or that a further refund would not be justified in this case, then plaintiff is not entitled to recover under this contract. ’ ’
The contract referred to in this instruction is the one between Murray and Osborne.
Appellant and Osborne had entered into a so-called “licensing” agreement, which provided that Osborne would, on each Friday, pay to Murray 3% of licensee’s (Osborne’s) gross receipts for the preceding calendar week, which would be held by the licensor (Murray) in escrow. The agreement provides that Murray may invest this money in any type of bond, indenture, note or other certificate of indebtedness that it deems safe, and shall not be liable to licensee for errors of judgment or anything other than bad faith or fraud in the handling of the fund. Under the agreement, this 3% is paid until the amount reaches $25,000.00, and the instrument further provides that if this fund is depleted by payments made by Murray (as will be hereafter mentioned), payments to the licensee shall be resumed until the fund again reaches that amount. Among other purposes for which this fund could be used, we find the following:
“The Licensee [Osborne] agrees that he will make refunds to his pupils for unused lessons, at the request of any pupil for a refund when and if a refund is justified.
“In the event that the Licensee fails to make such justifiable refund to any of his pupils, the Licensor [Murray], if convinced that such refund is justified, is authorized to make such reasonable refund as Licensor deems proper, and charge the amount so paid to the Licensee, and Licensee agrees to reimburse Licensor upon demand or Licensor may charge such payment against the deposits provided for in Paragraph 6. Li-censor agrees to endeavor to keep such refunds to a minimum. ’ ’
Appellant, from this clause, apparently recognizes that justifiable demands for refund might be made which are in excess of the amount of money which has been paid in by the licensee (here, Osborne), for the quoted language states that Murray may make a refund, and charge the amount to the licensee. Of course, if Murray only had in mind making refunds to pupils in an amount not to exceed the funds held in escrow, there would be no need to charge the licensee with anything, for it (appellant) would simply pay only up to the amount he had on deposit.
This was a general verdict, and we do not know the basis upon which the jury reached this decision. Though arguing that it is liable neither under the theory of agency nor the theory of third party beneficiary, it is interesting to note that appellant recognizes that it can be liable to the pupils of licensee. In Section 6 we find the following language:
“* * * Upon termination of this agreement [between Murray and Osborne] (or any renewal or extension hereof) or the termination of the relationship contemplated hereby between Licensor and Licensee (or their respective assigns) or in the event that Licensee’s school shall be permanently discontinued, Licensor shall account to Licensee within two (2) years after the happening of either of such events for the fund remaining in Licensor’s hands, if any, and shall pay to Licensee the amount remaining on hand after deducting: (1) all debts and obligations due Licensor; (2) all sums due Licensor or Licensor’s other Licensees for redemption of lessons sold by Licensee to Licensee’s pupils; (3) any payments Licensor may have made or expenses or liability incurred as a result of claims or litigations against Licensor arising out of Licensee’s conduct of the enterprise contemplated hereby. [Our emphasis.]”
It makes but little difference what we call the relationship between these three parties; the fact remains that appellant recognized that, under its agreement with Osborne, it could become liable, inter alia, because of refunds due pupils for unused lessons, and the jury found such liability.
For the reasons herein set out, the judgment is affirmed.
It is so ordered.
George Rose Smith and Brown, JJ., dissent.
The record as to Osborne is here confusing. On Page 83 of the transcript, there is a recitation that Osborne, “not appearing or offering any defense, the court has entered a default judgment against him for the amount of $2,450.00, as prayed by the complaint.” The judgment itself recites that the court “directed a verdict in the amount of $2,450.00 against defendant Samuel L. Osborne.”
For compensation, Section 2 provides that the licensee shall shall pay the licensor, so long as the dancing school is operated, 5% of the gross receipts for the preceding calendar week. | [
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Conley Bykd, Justice.
Appellant, Continental Geophysical Company, appeals from judgments entered in five consolidated cases brought by appellees Jeff Adair, Pleas Garner, R. H. Swint, Johnny McAnally, and Homer Wilkins. The allegation is that appellant's seismograph operations partially destroyed the water supply to appellees’ wells.
For reversal, appellant sets out six separate points, but since we hold that the proof fails to show a causal relationship between appellant’s seismograph operations and the failure of the water supply in appellees’ wells, we deal only with that issue.
The record facts show that some time prior to March 13, 1964, appellant drilled ten holes in the vicinity of the Sugar Grove and Dry Creek areas of south Logan County, at a depth of 100 feet, except for one hole 95 feet deep. In each of seven of these holes appellant placed 200 pounds of dynamite, which took up 40 feet of the hole. The remaining 60 feet was filled with gravel. The charges packed in the holes were set off by appellant on March 13, 14 and 15, 1964. The closest test hole to any of appellees’ wells was 1,600 feet; the farthest was 6,300 feet. It was also undisputed that in 1963 Logan County was declared a drouth area, the recorded rainfall being 26.41 inches. (Average rainfall from 1945 to 1965 was 43.82 inches.) Wells other than those here involved also went dry and lawsuits are pending against appellant with respect to some of them.
The depth of most of appellees’ wells ranged from 28 to 50 feet. Mr. Swint’s well, a drilled well, was 90 feet deep.
Mr. Swint testified that his well was drilled in 1964, before appellant’s operations; that it was capable of pumping 750 gallons of water per hour and was supplying, in addition to his home, two chicken houses with a capacity of 12,500 brooders each; that his well quit some time in the spring of 1964; that when it got to where it would not furnish water for one of the chicken houses he got a driller to set up over it and lower the depth and did get a little more water; and that he did not know exactly how long after appellant’s crews left before he noticed the water Avas getting Ioav, hut it was not too awful long.
Appellee Homer Wilkins testified that he had owned his place for 12 or 15 years; that he had never had any trouble Avith his well before; and that he first noticed the lack of water in his well during the summer of 1964.
Appellee Pleas Garner testified that his veil had been in existence to his knowledge for more than 40 years and had not gone dry, and thát he first noticed his problem some time in the summer of 1964. He at first said it was probably in October, but later testified that it happened just after the time of the exploration of the defendant company. He did not know whether it was 30 or 60 days or what. He knew he had run out of Avater about the time the defendant put dynamite shots off and had been out ever since. He testified that if the dynamite had not caused the damage it was funny because that well had been there some 40 years and had not gone dry. He was willing to say that he felt that the dynamite was what did it because it never happened before to his knowledge and he had been around there all his life. He felt the shots were what caused it. He could not say he knew the dynamite caused it but he had that feeling that that Avas what happened to turn the water off. He Avas going to say that. He guessed that God Almighty was the only one that really knew what caused it but he thought he knew.
Appellee McAnally testified that he had owned his place since 1946 and the well had never gone dry before, and that it had started going dry in the summer of 1964.
Mrs. Adair testified that she and her husband owned places at both Sugar Grove and Dry Creek; that they had had plenty of water up until appellant’s seismograph operations; and that their wells had gone dry in mid-July, 1964. Her testimony was that she knew they set off some dynamite down there; that she heard and felt the blast and could hear the windows shake; and that it was in 1964 some time and right after they did it that the wells all went dry and they went to hauling water.
The only testimony about the geology of the area was given by appellant’s witness, Dr. Leslie Mack. Ho testified that all the wells in the town of Sugar Grove were in the alluvial or unconsolidated settlements; that the water supplying these wells did not move in streams' as such, but that it moved as a body en masse, as a saturated mass. He stated that you could dig a well almost any place in the Sugar Grove area and find water at the same level — that it is all saturated and there are no underground streams in the area. He did point out that in areas of limestone formation, such as in north Arkansas, you can have a cavernous limestone where water actually flows through fissures and cracks in the rock, but that so far as Sugar Grove is concerned there are no such streams.
Under the facts, therefore, it appears that in 1963 there was a severe drouth; that on March 13, 14 and 15, 1964, appellant detonated its seismograph test holes; and that some time in the spring or midsummer appel-lees’ water wells began to fail. We think the proof is insufficient to show a causal relationship between the detonation of the test holes and the failure of appellees’ wells.
In Western Geophysical Co. v. Mason, 240 Ark. 767, 402 S. W. 2d 657 (1966), we had before us a case of damage to a well by seismograph operations similar to those here. But there the proof showed that the well had been damaged once before by similar explosions, and that soon after the explosions the water in the well turned red and muddy and became unfit for use. Here appellees lack the previous experience found in the Western Geophysical case, and the further element of the muddying of the water.
O’Brien v. Primm, 243 Ark. 186, 419 S. W. 2d 323 (1967), involved damage to a water well following a sand fracting operation on an oil well. The proof showed that acid had been placed in the oil well in connection with the sand fract job and that shortly after the 3,500-pound pressure had been applied to the oil well the acid had appeared in Primm’s water well. The record here shows no proof of the transfer of any substance from appellant’s test holes to appellees’ wells.
When we consider the distance from appellant’s test hole explosions to appellees’ wells, and the time lag between the date of the explosions and the failure of the water supplies, we can find no evidence to show that the test hole detonations were a cause which, in a natural and continuous sequence, produced the damages to the wells and without which the damages would not have occurred. Therefore, we hold that the trial court should have directed a verdict in favor of defendants at the conclusion of plaintiffs’ case.
However, our ruling herein does not necessarily require that the case be dismissed. In a similar situation in St. Louis S. W. Ry. Co. v. Clemons, 242 Ark. 707, 415 S. W. 2d 332 (1967), we said:
“We come now to the question of whether this case should be dismissed or remanded. This court has long adhered to the rule so well reiterated in Fidelity Mutual Life Insurance Co. v. Beck, 84 Ark. 57, 104 S. W. 533 and 1102 (1907). The general rule is to remand common law cases for new trial. Only exceptional reasons justify a dismissal. One of the exceptions is an affirmative showing that there can be no recovery. Pennington v. Underwood, 56 Ark. 53, 19 S. W. 108 (1892). There it was said that when a trial record discloses ‘a simple failure of proof, justice would demand that we remand the cause and allow plaintiff an opportunity to supply the defect.’ To the same effect, see Hinton v. Bryant, 232 Ark. 688, 339 S. W. 2d 621 (1960).”
Counsel for appellant readily advises this court that lawsuits involving other wells are still pending. It is not impossible that the defects in the proof could be supplied on retrial. We need not speculate on the nature of the proof. But should we dismiss plaintiffs’ causes of action here and should other plaintiffs furnish the needed proof, the practical result would be that some people in the community would recover for their wells while the plaintiffs here involved would be denied. This seeming inconsistency in the law would be contrary to the philosophy that justice should not only be fair but appear fair.
Beversed and remanded.
Fogleman, J., concurs. | [
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George Rose Smith, Justice.
This is a zoning dispute. The appellee Alexander owns a triangular piece of property on the southwest corner of the intersection of Van Burén and Club Road in Little Rock. Alexander uses the little building on the property as a pick-up and delivery station for patrons of his laundry business. In 1965 the Board of Zoning Adjustment granted Alexander’s application for permission to add 300 square feet to his building, making it about 850 square feet in all. This suit to review the Board’s action was brought by the appellants, neighboring landowners who had opposed the issuance of the permit. The chancellor sustained the Board. For reversal the appellants contend that the Board’s action was (I) illegal, (II) arbitrary, and (III) barred by limitations.
I. Illegality. Apparently the Board reclassified Alexander’s property as “F Commercial” back in 1959. The appellants insist that under the governing statute and the Little Rock zoning ordinance (which was marked Exhibit 11 at the trial) the Board had no power to rezone the property and that therefore the permit now in dispute violated a zoning restriction applicable to nonconforming uses. The appellee’s answer to this contention is that the zoning ordinance (as well as sev eral, allied-exhibits) was not put in evidence at the trial and so cannot be considered here.
We do not take judicial notice- of city ordinances. Campbell v. City of Hot Springs, 232 Ark. 878, 341 S. W. 2d 225 (1960). Nor can we consider a document that was not received in evidence even though it may have been in the courtroom, as, for example, an exhibit to a pleading. Wright v. Midland Valley R. R., 111 Ark. 196, 163 S. W. 1151 (1914); National Annuity Assn. v. McCall, 103 Ark. 201, 146 S. W. 125, 48 L.R.A. (n.s.) 418 (1912).
Thus the question is, was Exhibit 11 put in evidence at the trial? We have suffered much anxiety in the study of this question, but we cannot conscientiously say that the exhibit was actually introduced. We may explain our conclusion by referring to pertinent parts of the record.
During the examination of the plaintiffs’ first two witnesses five exhibits were received in evidence. In each instance the court made a ruling. This excerpt is typical:
Mr. Stubblefield: Could I have the one that shows both marked as Plaintiffs’ Exhibit No. 2 and the second one as Exhibit No. 3?
The Court: Let them be introduced.
(Thereupon, said pictures were marked for identification and received in evidence.)
A few minutes later, after the plaintiffs’ fourth witness left the stand, the record reflects the following:
Mr. Stubblefield: Your Honor, Mr. Bonner and I mentioned before the trial that each of us had some exhibits we would like to have marked for identification, and I believe we said we would let them be marked for identification without conceding their relevancy or competency. The reason we are doing it at this time, the witnesses who testified wanted to get áway, and he was kind enough to consent we could do that.
Counsel for the plaintiffs then produced and described five pieces of documentary evidence, which were marked for identification as Exhibits 6 through 10. Counsel for the defense then, in the same manner, produced and described eight exhibits — the zoning ordinance and seven pictures — which were marked for identification as Exhibits 11 through 18.
Thereafter the reporter’s transcribed record of the trial contains no .additional reference to Exhibits 6 through 11. When defense counsel, in questioning his own client, sought to use the picture marked as Exhibit 12 this occurred:
Mr. Bonner: I hand you here Exhibit No. 12 and ask you to identify that.
A. This is a front view of my building taken from the west side of Kavanaugh Boulevard . . .
Mr. Bonner: Do you want me to place each of these in evidence again? We have had them marked for identification purposes.
Mr. Stubblefield: No, sir.
Mr. Bonner: These will be considered in evidence. That is Exhibit No. 12.
Continuing his direct examination, Bonner successively showed all seven pictures to Alexander, who explained what each one portrayed.
All exhibits except No. 11 are contained in the bound record, which is certified by the reporter and the chancery clerk. Exhibit 11, which is bulky, was sent up in a separate envelope bearing a certificate by the reporter that it “was introduced during the course of the trial in the above styled cause of action.”
Taking the record as a whole, we must conclude that Exhibit 11 was not put in evidence. With respect to the first five exhibits the chancellor made a ruling in every instance: “Let it [them] be introduced.” By contrast, Exhibits 6 through 18 were presented in quick succession and marked for identification only, “without,” in the words of counsel, “conceding their relevancy or competency.” Clearly it was contemplated, as is usually the case with reference to exhibits marked for identification, that a definitive ruling would be made as each exhibit was actually offered in evidence. Exhibit 11 was never so offered. The omission is understandable, for the exhibit was produced in the first instance by defense counsel. There was no reason for him to put the zoning ordinance in evidence, because it was essential only to his adversaries’ case — not to that of his own client.
We should point out that Exhibits 12 through 18 stand in a different position. Those pictures were shown to the witness Alexander and commented on by him. In such circumstances a formal ruling by the court was not necessary. J. W. York & Sons v Powell, 125 Ark. 597 (mem.), 187 S. W. 628 (1916); School Dist. No. 68 v. Allen, 83 Ark. 491, 104 S. W. 172 (1907). But there was no similar actual use of Exhibit 11 in the examination of any witness. Nor does the reporter’s certificate on the envelope containing the ordinance, stating that the exhibit was “introduced,” cure the defect. That certificate does not purport to be a transcription of the reporter’s notes. The reporter’s personal belief that the exhibit was introduced cannot take the place of a ruling by the court.
Counsel for the appellants did not file a reply brief; so we do not know what his answer to the appellee’s argument might be. We have not overlooked, however, the possible contention that (a) Exhibit 11 was pro duced by the appellee, (b) he thereby avouched its accuracy, (c) the appellants make no objection to the exhibit, and (d) therefore it should be considered by this court.
We recognize the force of that reasoning and do not imply that it is unsound. The trouble is that the appellants, in presenting their argument on the issue of illegality, also rely upon Exhibits 6, 7, 8, and 9 in their effort to show that the appellee’s pick-up station constitutes a nonconforming use with respect to which structural alterations are prohibited. Exhibits 6 through 9 were, like Exhibit 11, not put in evidence. But, unlike 11, Exhibits 6 through 9 were produced by the appellants and therefore were not avouched by the appellee. Hence even a holding that Exhibit 11 is properly before us would not dispel the uncertainty that confronts us with respect to the true zoning classification of the property in issue.
II. Arbitrariness. This and' the third point do not call for an extended discussion. The plaintiffs attempted to prove that the proposed addition to the pickup station would create a traffic hazard at the intersection and would prevent passing motorists on Kava-naugh from seeing the plaintiffs’ places of business, with a consequent loss of patronage. The plaintiffs’ testimony about the traffic hazard, given by lay witnesses, was more than offset by the testimony of the only expert witness who testified, DeNoble, who appeared for the defense. We can attach no weight to the fact that the enlargement of Alexander’s building may obstruct the public’s view of the appellants’ shops, for, in the absence of proof that the addition is illegal, there is no basis for saying that Alexander is not entitled to use his property in the way that is proposed.
III. Limitations. It is argued by the appellants that a petition similar to this one was denied in 1959, that Alexander took an appeal from that denial, that he took a nonsuit in the circuit court, and that he failed to refile his suit within a year. A sufficient answer to this contention is that a zoning board may .entertain successive applications for the same relief, especially when there is a showing of changed conditions. McQuillin, Municipal Corporations, § 25.275 (1965). It appears that Alexander’s present application is for permission to construct an addition materially smaller than the one involved in the prior proceeding. That difference may well have been the change in conditions which induced the Board to change its mind.
Affirmed.
Harris, C. J., and Byrd, J., dissent and would grant rehearing. | [
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J. Fred Jokes, Justice.
The petitioners seek a writ of prohibition directed to the Faulkner County Circuit Court prohibiting the judge of that court from proceeding further in the trial of a law suit for lack of jurisdiction.
Sue Bradford, a resident of Van Burén County, Arkansas, filed a suit as plaintiff in the Faulkner County Circuit Court, alleging that the defendant, Elmer Pearson, is a resident of Faulkner County and is an employee and agent of the defendant, Evans Laboratories, Inc., an Arkansas corporation; that on or about October 6, 1966, the defendants sold to plaintiff’s employer, Climatic of Clinton, Inc., insect eradication service including the actual pesticide to be used in and about the plant where Sue Bradford worked in Clinton, Van Burén County, Arkansas.
The complaint alleges that the defendants sold the pesticide services, including the pesticide itself, for the purpose of eradicating pests and insects and there was an implied warranty in favor of Sue Bradford, as an employee of Climatic, that such pesticide was reasonably fit for the use for which it was intended and would not be harmful or injurious when used and sprayed in close proximity to human beings; that the pesticide was so used in the plant in Van Burén County and that plaintiff came in contact with the pesticide in the plant Avliere she worked, and because of having done so she became violently ill.
The complaint alleges that the defendants breached an implied warranty for the reason that such pesticide was not in fact fit for its intended use and purpose, and when it was put to its intended use, the plaintiff sustained personal injuries and damages as the direct and proximate result of the defendants’ breach of warranty. Summons was served on the defendant, Elmer Pearson, in Faulkner County and on the defendant, Evans Laboratories, Inc., in Pulaski County.-
The defendants appeared specially on a motion to quash the summons and dismiss the complaint for lack of jurisdiction in the Faulkner County Circuit Court for the reason that the defendant, Evans Laboratories, Inc., had no place of business, or agent for service, in Faulkner County, Arkansas, and for the reason that the plaintiff was a resident of Van Burén County, Arkansas, and the incident causing the damages complained of, occurred in that county. The trial court overruled the motion.
Petitioner contends that plaintiff’s action was for damages for personal injury and must be brought in Van Burén County where the accident causing the in jury occurred and where the plaintiff resided at the time of the injury.
Respondent contends that the action is a suit on contract and may he brought in any county in which the defendant, or one of several defendants, resides, or is summoned. The respondent urges us in this case to decide once and for all, whether a suit for breach of warranty is a suit on contract or a suit in tort. Whether a suit for breach of warranty sounds in contract or in tort depends upon the nature of the suit, the nature and extent of the warranty, and the effect or results of the breach. Regardless of whether a suit for a breach of warranty is on contract or in tort, venue for an action is not controlled by such classification, hut is controlled by venue statute.
Ark. Stat. Ann. § 27-610 (Repl. 1962) provides as follows:
“All actions for damages for personal injury or death by wrongful act shall he brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.”
All other actions not provided for by specific statute are provided for by Ark. Stat. Ann. § 27-613 (Repl. 1962), as follows:
“Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.”
In the case at bar, the complaint alleged personal injuries in breach of contract, but the plaintiff brought her action for damages for personal injury by wrongful act in Faulkner County where she did not reside, and where the accident which caused her injury did not occur.
The venue for this action is in Van Burén County and the circuit court of Faulkner County is without jurisdiction.
Writ of prohibition is granted. | [
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Smith, J.
The petitioner invokes our superintending control over the Circuit Court to the end that a certain judgment, rendered against him and another, may be quashed as to him, for want of jurisdiction over his person. The action was in the Johnson Circuit Court. The petitioner does not allege the county of his residence; but service of process was had upon him in Pope county. His co-defendant, Battenfield, was served in Franklin; but the .Circuit Court found as a fact, from evidance before it, that at the commencement of the action, his residence was in Johnson. This finding is' conclusive so far as this application is concerned.. And the action being transitory, might properly be brought in any county where either of the defendants resided, or was summoned. Dig., Secs. 5007-9.
The'Johnson Circuit Court acquired jurisdiction over both defendants; by the service of its writs in other counties.
The writ of certiorari is denied, and the petition therefor is dismissed. | [
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Cockrill, C. J.
The appellant’s husband died in possession of a lot in the town of Fayetteville, in 1869. It was the family homestead at that time, and the appellant continued to reside there for a little more than a year after her husband’s death, when she removed to another residence, in the same town, which she owned in her own right, and has ever since made that her home. Her dower never having been assigned to her, she has retained the exclusive control of the residence of her deceased husband, renting it and treating it always as her own. In 1881 a railroad company procured a right of way across the lot, by purchase from the widow and the heir, and soon after the appellee, under a contract with the company to that end, proceeded to excavate a road-bed through the lot. In blasting for that purpose his servants negligently threw heavy stones against the old homestead and another house, on the same premises, which the appellant was causing to be erected, damaging both houses. For this injury the appellant brought suit. The case was tried by the court, without a jury, and the law was declared to be that the widow not being in the actual oc cupancy of the land, and not having title thereto, could not maintain the action. Judgment was accordingly rendered for the defendant. Our only inquiry is as to the correctness of the court’s ruling.
The appellant had no claim upon the premises as a homestead. The law in force when her husband died, and by which her rights are determined, extended the homestead privilege to the widow only so long as she had no home of her own. Art. 12, Sec. 4, Const. 1868.
Her right, however, to the possession of the chief dwelling-house of her late husband, until her dower is laid off and assigned, is not open to question. Mansf. Rev. St., Sec. 2587-8; Padgett v. Norman, 44 Ark., 490; Trimble v. James, 40 Ib., 393; Mock v. Pleasants, 34 Ib., 63.
The ruling of the circuit court was that this possession must be by actual occupancy.
If dower is not allotted to her within two months after her husband’s death, in the language of the statute, “ She shall remain and possess the chief dwelling-house of her late husband,” until it is laid off and assigned to her. The expression “ she shall remain” has reference only to the connection intended to be kept up between her right of possession and the title of her husband. McClung v. Turner, 74 Mo., 45; Gorham v. Daniels, 23 Vt., 600. It implies that the husband was in possession at his death; and, the wife having been in joint possession, as it were, with him, the meaning of • the statute is that the right of possession, upon his death, shall remain or continue in her. To require her to remain in person on the premises would defeat the humane object of the statute in many instances. It was accordingly held- in Carnall v. Wilson, 21 Ark., 62, that she might hold her possession through an agent or tenant, his possession being regarded as hers. See too, 2 Scrib. on Dow., 64; Bevnagh v. Turrentine, 60 Ala., 557; Burk's heirs v. Osborn, 9 B. Mon., 579; McReynolds v. Counts, 9 Gratt., 242; Clark v. Burnside, 15 Ill., 62; Jones v. Jones, 81 Md., 292.
She may enjoy the privilege during her life, unless it is defeated by the heir or other person holding the duty to allot her dower, (‡ Kent Com., 62), and it follows that a recovery of damages may be had by her for a wrongful act which lessens her enjoyment, or impedes hef in the legitimate use of the . T. , * , nil - premises.. It is not necessary that the plaintiff should have the absolute title in order to recover for an injury to real estate. Possession alone may be sufficient for that purpose. 2 Sanders Pl. & Ev., part 2, 1126 et seq.; McKinney v. Demby, 44 Ark., 74.
In this case the widow could have no recovery except for an injury affecting her own right. The recovery is limited to the damage suffered by the person seeking to recover, but the right to redress, to this extent, against a wrong-doer is as complete as though she owned the fee to the soil. Gilbert v. Kennedy, 22 Mich., 5; Foster v. Elliott, 33 Iowa, 216; Cooley Torts, 326.
It is no objection to this right of recovery that the injury is to the freehold and permanent. It is the rule that the same wrongful act may support an action by the tenant and reversioner at the same time. Sanders, sup.; Cooley, sup.; Bentonville R’y Co. v. Baker, ante. The destruction of buildings is the very instance of this cited by thp text writers. The fact that the heir in this case has not complained of the injury done to his interest cannot preclude the appellant from recovering for the damage done to hers.
The court erred in declaring the law applicable to the case, and the judgment must be reversed and the case remanded for further proceedings. | [
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Battle, J.
George Carroll was indicted in the White circuit court for killing Lizzie Carroll. The offense charged in the indictment is murder in the first degree. He was tried for and convicted of this offense. He filed a motion for new trial, and a motion in arrest of judgment, which were overruled and he appealed.
■ The facts stated in the indictment are sufficient to constitute murder in the first degree.
One ground of the motion for a new trial is, the admission of the testimony of witnesses as to rumors. These rumors were that Carroll and Viney Tidwell were criminally intimate. After the admission of this testimony the court excluded it and instructed the jury not to consider it in making up their verdict.
It was proved that Lizzie Carroll, the deceased, was the wife of defendant, and that they and Viney Tidwell lived in the same house during the same period of time. The defendant testified in his own behalf that he had sexual intercourse with Viney Tidwell; and that he did not know but supposed she was pregnant. This being true, the testimony excluded could not have prejudiced him.
Another ground of the motion for a new trial is, the court erred in admitting the testimony of Johnnie Rison. He testified that he saw the defendant strike his wife, the deceased, twice, about two weeks before she was killed, and that at the time he did so he uttered oaths. This was admissible to show the state of defendant’s feelings towards his wife, and the manner in which they lived.
' Another ground of the motion of new trial is, the court erred in refusing to give certain instructions to the jury asked for by the defendant. These instructions were substantially embodied in instructions given to the jury by the court. It was unnecessary to give instructions, already given, in different words. The defendant could not be prejudiced by the refusal to do so, and had no right to complain. There was no error in such refusal.
Another ground of the motion for new trial is, the court erred in giving the instructions numbered i, 2, 3, 4 and 5. These instructions are as follows:
1. “The commission of crime may be proved by direct or by circumstantial evidence. When the existence of any fact is attested by witnesses as having come under the cognizance of their own senses, the evidence of the fact is said to be direct or positive; when the existence of the principal fact is only inferred from one or more circumstances which have been established directly, the evidence is said to be circumstantial.”
2. “ Circumstantial evidence is the proof of such facts and circumstances connected with the commission of the crime charged, as tend to show the guilt or innocence of the accused, and if the facts and circumstances proven by the preponderance of evidence are such as to satisfy the jury beyond a reasonable doubt, then such evidence is entitled to the same weight as direct or positive testimony, and sufficient to warrant a verdict of guilty. But to justify a conviction on circumstantial evidence alone it must be of such a character as to exclude every reasonable hypothesis other than that the defendant is guilty. If the circumstances proven establish the guilt of the defendant in the minds of the jury beyond a reasonable doubt they would be justified in finding him guilty, notwithstanding the evidence may not be as satisfactory to their minds as the positive testimony of credible witnesses.”
3. “ An accomplice is a person who knowingly, voluntarily, and having common intent with the principal offender, unites in the commission of a crime. The co-operation must be real, not merely apparent. Whether the witness, Viney Tidwell, was an accomplice in the alleged murder of the deceased, Liz zie Carroll, is a question of fact for the jury to determine from the testimony. If she was not an accomplice her testimony must be received, considered and weighed the same as the testimony of other witnesses. But if the jury find from the evidence that she was an accomplice in the perpetration of the alleged crime of murder, a conviction of the defendant could not be had upon her testimony alone. It must be corroborated by other evidence tending to connect him with the commission of the crime, and the corroboration is not sufficient if it merely shows the offense was committed, and the circumstances thereof.”
4. “The witness, Viney Tidwell, was jointly charged and indicted with the defendant for the alleged murder of Mrs. Carroll. The State, by its prosecuting attorney and leave of the court, have dismissed the indictment as to her, but this fact is not to be taken into consideration by the jury in determining the guilt or innocence of defendant. The jury are the exclusive judges of the testimony and credibility of the witnesses. If evidence is conflicting, it is their duty to reconcile and harmonize conflicting statements, if they can, so as to make each witness speak the truth, but if this cannot be done, then it is the province of the jury to credit so much of the evidence as they deem under all the circumstances worthy of belief, and discredit that which they deem unworthy of belief.”
5. “The jury are instructed that it is not necessary to prove the existence of a motive before they can convict upon circumstantial evidence. If such evidence establishes guilt beyond a reasonable doubt, they would be justified in finding a verdict of guilty, although the testimony may fail to show a motive to commit the deed.”
To all these instructions, in gross, the defendant excepted, as shown by the bill of exceptions.
It is insisted by appellant that the second one of the above instructions is erroneous, because “ it directs the jury to accept facts and circumstances as proved by a mere preponderance of evidence, when these facts and circumstances are to be the basis of inference for their verdict, and because it directs that the jury may find defendant guilty upon less satisfactory evidence than the testimony of credible witnesses.” In this the defendant is mistaken. The court did not say that such facts and circumstances so proven should be accepted as true, but that when “they are such as to satisfy the jury beyond a reasonable doubt, then such evidence is entitled to the same weight as direct or positive testimony, and sufficient to warrant a verdict-of guilty. But to justify a conviction on circumstantial evidence alone,” said the court, “it must be of such character as to exclude every reasonable hypothesis, other than that the defendant is guilty.”
In these instructions the court told the jury that they “are the exclusive judges of the testimony and the credibility of the witnesses.”
At the instance of the defendant the court instructed the jury as follows: “The law clothes a person accused of crime with a presumption of innocence, which attends and protects him until it is overcome by testimony which proves his guilt beyond a reasonable doubt. Beyond a reasonable doubt, which means that the evidence of his. guilt, as charged, must be clear and abiding, fully satisfying the minds and consciences of the jury. It is not sufficient, in a criminal case, to justify a verdict of guilty, that there may be strong suspicions, or even strong probabilities, of guilt, nor, as in civil cases, a preponderance of evidence in favor of the truth of the charge against the defendant; but what the law requires is proof by legál and credible evidence, of such a nature that'when it is all considered by the jury, giving to it its natural effect, they feel, when they have weighed and considered it all, a clear and entirely satisfactory conviction of the defendant’s guilt.”
Appellant insists that the court erred in instructing the jury as to what is necessary to constitute an accomplice.
In Polk v. The State, 36 Ark., 126, Mr. Justice Eakin, in delivering the opinion of the court, said: “An accomplice, in the full and generally accepted legal signification of the word, is one who, in any manner, participates in the criminality of an act, whether he is considered in strict legal propriety as a principal in the first or second degree, or merely as an accessory before or after the fact.”
Sec. 130J, of Mansf. Dig., declares: “An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.”
In Melton v. The State, 43 Ark., 371, this court said: “But we incline to the opinion that Lawrence was not, in the eye of the law, an accomplice in the murder. The guilt of an accomplice must be legal guilt, not merely a participation reprehensible in morals. 1 Bish. Cr. Pro., 3 ed., Sec. 1159. No indictment could have been sustained against him for the murder of Hale. He was not present when the crime was committed, nor does it appear that he encouraged its perpetration. His sole connection with the affair was membership in the same unlawful association, assisting at the castigation of Hale, some time before, and participation in a meeting at which Hale's death was resolved upon. But it seems he dissented from the conclusion which was reached and did nothing to further the execution of the plot. His subsequent concealment of the crime was the result of anxiety for his own safety, and not of a design to shield the guilty parties.”
The evidence upon which the instructions of the court below as to accomplices, were based, was the testimony of Viney Tidwell. She testified, among other things, as follows: On Saturday before the second day of February, 1885, “there was some- fuss” in defendant’s family. On Sunday, following, Car roll “ got mad ” about something, and at night told me he intended to drown Lizzie Carroll, the deceased, in the well. He said that he would get up early, and just before he started to his work he would call Lizzie and tell her to come and draw the water to wash, as he had to carry the well-rope to Mr. Andrews as it belonged to him. I had washed on Saturday, but Lizzie had not finished washing Saturday, and had some washing to do on Monday morning. On Monday morning, the second day of February, 1885, “we got up at half-past four o’clock and got breakfast.” After breakfast Carroll sat down awhile. “We fixed about the breakfast things a little, and then Carroll got up and went out.” After he was out a short time he called Lizzie and told her to come and draw up the water to wash, as he had to take the rope to Mr. Andrews. Lizzie took the bucket and went out. “ I was dressed at the time, but fell back on the bed, and put my hands to my ears, as I believed Carroll would throw her into the well and I did not want to hear her. I did not hear anything lor some time. Then Carroll came to the door and told me to be sure to wait until he had time to get to his work and then hallow and give the alarm. When I thought he had time to get to his work I went out to the well, and looked in and saw what I thought was Lizzie’s entrails and hair. This frightened me very much and I screamed. After awhile Mr. Smith came and I told him that Mrs. Carroll was in the well and to go and tell Carroll. I was very much excited. I then went to the house an?l staid there until defendant came. He came in the house and then went out and told me to call Mr. Spurl, who was working near the house. After that several others came. When a large crowd got there Lizzie’s body was taken out of the well. She was dead. I was afraid to tell Mr. Spurl, or the others who came, that Carroll had thrown Lizzie into the well. I was afraid to tell until May or June, 1885. I was afraid if Carroll got away he would kill me. I wanted to see Carroll fastened before I made the disclosure. I determined to tell while I was in prison.”
According to the opinion of this court in Polk v. the State and Melton v. the State, supra, and the testimony of Viney Tidwell, if true, she was not an accessory after the fact and in that sense an accomplice. Her testimony was the only evidence of her knowledge of the commission of the crime; without it the evidence introduced in the trial was not sufficient to convict Carroll of murder in the first degree. It is evident the jury believed her, and had the court instructed them as to what is necessary to constitute an accomplice according to the opinions of this court cited above, their verdict would have been the same.
Had the court below been asked by the defendant to instruct the jury as to what is necessary to constitute an accomplice, according to the opinions in Polk v. the State and Melton v. the State, it would probably have done so. But he did not do so, nor except to the instructions given on that point, separately, singly and apart from the instructions excepted to in gross. On the contrary it seems he concurred with the court as to the law of the case in that respect and asked for an instruction to the same effect. For, at his instance, the court instructed the jury as follows: “ If the jury believe from the evidence that the witness, Viney Tidwell, was concerned or engaged in the killing of Lizzie Carroll, or encouraged by words, or aided by acts, any one else in killing her, then, in order to convict upon the testimony, it must be corroborated by other’evidence in such material fact necessary to convict the defendant, and such corroborating testimony must tend to connect him with the killing.”
The defendant was entitled to an instruction upon what is necessary to constitute an accomplice, in accordance with the opinions of this court cited upon that subject, if he had asked it. But having failed to ask it, or, in fact, except to it, as appears from the fact that he asked for an instruction to the same effect, is he now entitled to a new trial because the instruction was not given?
In Benton v. The State, 30 Ark., 335, one ground of the motion for a new trial was, “ the court erred in failing to read to the jury, as part of its charge, the whole law applicable to homicide, but confined itself in the charge to cases of murder in the first and second degree.” “It appeared by the bill of exceptions, that after the court had given the instructions asked for by the state, and nine asked for by the prisoner, being all asked on his behalf, the court, of its own motion, gave a general charge to the jury. No exception appeared to have been taken to the charge given, and the only objection made to it in the motion for a new trial, was that it did not go far enough; that the judge did not read to the jury the whole law applicable to homicide, but such only as applies to cases of murder in the first and second degrees.” Chief Justice English, in delivering the opinion of the court, said: “ It is the province of the court to give in charge to the jury such principles of the law as it may deem applicable to the case. If a party desires other instructions he may move them, and the court will give or refuse them, according to. its judgment of their correctness or applicability. If refused, the party asking them may except to the opinion of the court. If objected to by the opposite party, and given, he may except. So either party may except to the general charge of the court. If the charge be the enunciation of several distinct principles, either party may except to any one or more of them. If all are deemed objectionable, each and all of them may be excepted to. But the exception should not be general to a number of distinct enunciations, but specific.”
“While in one sense,” says Mr. Bishop, “it is undoubtedly the duty of the judge to give instructions to the jury, cov ering the entire law of the case, as respects all the facts proved, or claimed by the respective -counsel to be proved, still, if he omits something, and is not asked to supply the defect, the party who remained voluntarily silent cannot complain.” 1 Bishop Cr. Pro., Section 980; Dave v. State, 22 Ala., 23; Burns v. Commonwealth, 3 Met., (Ky.,) 13; Farris v. State, 13 Fla., 591; People v. Ah Wee, 48 Cal., 236; Mercer v. State, 17 Ga., 146; Mason v. People, 2 Col., 373; The State v. Bogain, 12 La. Ann., 264; Commonwealth v. Costly, 18 Mass., 1; People v. Rodundo, 44 Cal., 538; The State v. Smelser, 12 La. Ann., 386; The State v. O’Neal, 7 Ire., 251.
In this case the court was not asked to supply the defect, but instead of doing so the defendant asked, and the court gave, an instruction to the same effect as that now complained of. He therefore had no right to complain.
The verdict of the jury is sustained by sufficient evidence.
There was no error in the overruling of the motions for new trial and in arrest of judgment. The judgment of the court below is affirmed. | [
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Sol. F. Clark, Special Judge.
The appellees, Mattie B. Portis and her husband, W. N. Portis, and their children, filed in the circuit court of Jefferson county, their petition in chancery against the appellants, Meyer, Weis & Co. and Joseph Merrill.
The object is to quiet title to an undivided half of lot five (5) in block seventeen (17) in the old town of Pine Bluff, in W. N. Portis, as trustee, for his said wife and children.
Among other things they allege that J. M. Portis, brother of W. N. Portis, being seized of such undivided half, on the 10th day of June, 1875, conveyed the same to W. N. Portis in trust for the said Mattie B. and their children, born and to be born, in consideration of the love and affection which he bore them. The wife of said J. M. Portis joined in the deed for the purpose of relinquishing dower. That said W. N. Portis as such "trustee, was, and had been, since said conveyance, in possession •of the premises, except a few months when the same was in possession of a receiver of the United States circuit court, but the receiver had been discharged and the property surrendered again to plaintiff.
That Joseph Merrill claimed to be the owner of an undivided half interest in said lands by virtue of a deed dated the 17th day of September, 1881, from Jno. M. Clayton, sheriff. That Meyer, Weis & Co. claimed to own an undivided half of the premises by virtue of a purchase made by them under a decree of foreclosure of a deed of trust made by Joseph C. Meyer, on the 8th day of March, 1881, to Gabe Meyer in trust to secure a debt due from said Joseph C. Meyer to them. That representatives of these claimants were warning the tenants on the premises not to pay rent to them, and that such tenants were becoming alarmed on account of. conflicting claims, and were about to refuse to pay rent, or to abandon the premises, and praying that the title of plaintiffs might be established as against such claimants.
To this complaint Meyer, Weis 8c Co. put in an answer and cross-complaint against the plaintiffs and defendant Merrill.
They deny that plaintiffs have any legal title to an undivided half of the premises as against their claim of an undivided half; and deny that the conveyance of said J. M. Portis to W. N. Portis, as trustee, of the 10th of June, 1875,. set out in the complaint, had any validity as against their title. They say théy do not know whether the defendant Merrill has-title to any part of the premises claimed by the complainant. They admit that there is an undivided half which they do not. claim to own, but as to one undivided half, they obtained a decree of a qourt of competent jurisdiction against all persons-having an apparent legal or equitable interest, including the said Merrill, James M. and Wm. N. Portis, all said parties having been duly served with process, and were foreclosed of all claim to such undivided half, and under which decree the defendants, Meyer, Weis & Co. purchased the same. And they exhibit the deed under which they purchased; and they pray that the complainants and Joseph Merrill may be required to answer; and that they may have a decree confirming their title.
To this cross-bill Merrill put in an answer, in which he alleges that the half which he claims and owns, is a different half from that claimed by Meyer, Weis & Co. That in the suit brought by them in the United States court for the eastern district of Arkansas against him, and Gabe.Meyer as administrator of the estate of Joseph C. Meyer and others, under which they claimed title by appropriate decree, all claims by Meyer, Weis & Co. to the undivided half so claimed by him were waived and abandoned, and all relief as prayed for against the deféndant, Merrill, was dismissed and refused, and that in all subsequent proceedings in that cause, his title to an undivided half was recognized as a different half from that of the complainants therein.
Defendant Merrill also answered the original complaint, in which he ignores all knowledge of the title of Mattie B. Portis and others to an undivided half of the premises, and submits that his claim is to another and separate half from that of complainants. In his further answer he states facts which clear up to some extent the confusion as to the titles to the separate halves of the property.
In substance, he alleges that on and previous to the 10th day of June, 1875, W. N. Portis and James M. Portis owned the'property together as tenants in common, each owning an undivided half. That on the 5th day of June, 1877,- Merrill recovered judgment against J. M. Portis in the Jefferson circuit court for $794.44, and purchased J. M. Portis’ half.of said lot at a sale under an execution issued on this judgment, made on the 10th day of April, A. D., 1880; and a deed of Jno. M. Clayton reciting the said sale bearing date of the 17th day of September, 1881, was made to him. He exhibits the sheriff’s deed with his answer. And he further alleges that Joseph C. Meyer being at the time in possession, he instituted suit against him in the Jefferson circuit court on the — day of October, 1881, and on the — day of--, 1882,, recovered judgment against his administrator, widow and heirs, he having died in the meantime, for the possession of such undivided half. A copy of the record of such judgment is exhibited. And being in possession he submits that his title is in no conflict with the title set up by either of the other parties, which is the undivided interest owned as aforesaid by the said W. N.' Portis; and prays that his title to an undivided half may be decreed perfect and free from any claims of plaintiffs, or Meyer, Weis & Co.
Treating the cross-petition of Meyer, Weis & Co. as a counter claim, the plaintiffs put in a. reply in which they allege that these defendants (Meyer, Weis & Co.) claim title to the premises from one J. C. Meyer, who, on the 8th day of March, 1881, executed a mortgage of the premises to them to secure a debt in the mortgage set out. That the suit for foreclosure set up in their answer to the complaint was a suit to foreclose such mortgage. That their purchase thereunder was a conveyance only of such title or claim as said J. C. Meyer had when he executed the mortgage.
That previous to that time J. C. Meyer had purchased the land at a sale thereof made by the sheriff of Jefferson county, under an execution issued to him from the supreme court of the state, upon which the sheriff executed to him a deed; but that before said deed was made, plaintiff, Mattie B. Portis, paid to said Meyer the amount necessary to redeem from said sale the half interest in the said premises claimed by the plaintiffs, and promised to convey such interest to her. The receipt for the" money and. agreement is exhibited with the reply. That after the payment, of the said sum of money in a suit then pending in the Jefferson circuit court, wherein the Merchants and Planters Bank was plaintiff, and J. Simon & Co. and others, including the plaintiffs, were defendants, and said J. C. Meyer inter-pleaded, it became material to ascertain the status of the said premises and the validity of the title of the plaintiffs, and also the validity of said sale and conveyance to said J. C. Meyer.
That upon a trial of that cause on the 5th of January, 1881, and before the execution of said mortgage to Meyer, Weis & Co., the court, by its decree, set aside and annulled the sale and canceled the deed to him, but charged the land with a lien in his favor for a sum fixed by the court. That Meyer after-wards entered upon the margin of the record of said decree» satisfaction in full for all claims he had upon said premises, so that when he executed the mortgage he had no title to the land. They admit the foreclosure proceedings in the United •States court, but deny that they were parties to that suit.
That after a decree of foreclosure had been entered in that suit the premises were placed in the hands of a receiver, which prevented plaintiffs from receiving the rents, and they presented to the said court a petition asking that the receiver as to a half-interest be discharged, exhibiting to said court their title; whereupon the court, for the first time being advised as to plaintiff’s claim, granted the petition.
On this state of pleading, and the various exhibits, the court granted a decree in effect dismissing the cross-bill of Meyer, Weis & Co., and quieted the title to one undivided half of the lot in the plaintiffs and the other half in Merrell. Meyer, Weis •& Co. have appealed to this court.
It is manifest that the pleadings on all' sides of the case are so defective as to render it uncertain whether justice between the parties can be reached by any decree which can be founded .upon them.
The plaintiff fails to define the ownership of the half which he does not claim title to, and yet alleges that each of the de fendants claims a half, against which he prays to have his title to his half quieted.
Each of the defendants sets up a title to a half, and alleges that it is not the same half claimed by the other, without specifying at all how the other’s half is derived.
Defendant Merrill alleges that previously, and at the time of the conveyance by James M. Portis to plaintiff of the xoth of June, 1875, alleged in the complaint, James M. Portis was the owner of only one undivided half, and that W. N. Portis, in his own right, owned the other half; and there is nothing in the record to controvert this statement, and it must be taken as true in determining the title of the parties. Yet he claims title under a judgment against James M. Portis, of the date of 7th of June, 1877, without showing how such title had not been previously conveyed to the plaintiff, as alleged in the complaint.
Nor is there anything in the plaintiff’s reply, nor in any of the exhibits to clear up this uncertainty and confusion; yet none of the parties demurred or excepted for such uncertainty, or moved to make any pleading more specific, and the court must pronounce upon the record as it is.
It is a remarkable circumstance, however, that the attorneys of all the parties have argued the case as if a deed by W. N. Portis, to his undivided half of the premises, was made to his brother, James M., on the same day that James M. conveyed a half interest to the plaintiffs, as alleged in the complaint. The plaintiff’s attorneys, in their abstract and brief, fully concede the fact of this deed, though it is not alluded to in any of the pleadings, and is not made a part of the record in any manner. It was manifestly considered in the decree of the court below, and a copy of the deed is in the transcript. This conveyance is very material to the rights of the parties. We are content to treat this deed the same as if it was properly pleaded and properly a part of the record, since it was manifestly so treated in the court below, without objection, and is conceded in the argument here.
The facts, then, so far as they can be understood from the record, are:
That on and previous to the 10th day of June, 1875, the property in controversy was owned by W. N. and J. M. Portis, as tenants in common. That on that day W. N. Portis conveyed his half of the property, together with other property, to J. M. Portis, his brother, and the latter on the same day reconveyed the same to him in trust for his wife and children, as alleged in the complaint.
It appears that W. N. Portis was much embarrassed by debts at the time, and several judgments were soon after rendered against him.
The firm of Talbot & Packard, on the 7th of June, 1877, recovered judgment against W. N. and J. M. Portis and others, in the Jefferson circuit court, which, being appealed to this court, was at the spring term, 1878, affirmed, for the sum of $1846.10. At a sale of this with other lands under this execution, J. C. Meyer became the purchaser, and received the sheriff’s deed on the 12th of February, 1880, which deed was ■on record at the time of the execution of the mortgage to Meyer, Weis & Co.
On'the 5th of January, 1881, however, in a suit pending in the circuit court of Jefferson county in chancery, wherein the Merchants and Planters Bank were plaintiffs, and J. Simon & Co. and the plaintiffs in this suit and others were defendants, and in which J. C. Meyer filed an interplea, a decree was rendered setting aside the sale to J. C. Meyer under the execution on the Talbot & Packard judgment and canceled his deed, but decreed him a first lien on the premises, as well as upon other lands, for the amount of purchase money, paid at the execution sale, with interest.
It seems that this decree was in full force and upon the court records when Meyer executed the mortgage to Meyer, Weis & Co., on the 8th of March afterwards. And it is alleged and proved that previous to that decree, to wit: on the 29th of January, 1880, and before the deed so canceled had been executed to Meyer, the plaintiff, Mattie B. Portis, paid to him the sum of '$1300, which he accepted in full of the amount of Talbot & Packard’s judgment, and agreed to convey the premises to the plaintiff when called upon to do so. Meyer died without having executed the conveyance. There is no evidence that Meyer, Weis & Co. had any notice of this payment and agreement whatever, but we think they were bound to take notice of the. decree annulling the deed.
The settlement of the lands upon his wife and children by W. N. Portis was good as between the parties to it. It was at all times competent for the beneficiaries of the trust to pay off the creditors and maintain the settlement. Creditors only could complain.
The decree in the case of the Merchants and Planters Bank v. J. Simon & Co., et al., pronounced.this settlement to be in fraud of creditors of W. N. Portis, and postponed it to the rights acquired by J. Simon & Co. under their subsequent mortgage, and that of J. C. Meyer under the Talbot & Packard judgment, but did not declare it void as between the parties to it.
For this purpose, the deeds constituting such settlement were on record when the mortgage was executed, and the record of those deeds, as well as that of the decree annulling J. C. Meyer’s deed to the lot, were sufficient, we think, to put Meyer, Weis & Co. on inquiry, and they had at least constructive notice of the want of title in J. C. Meyer when they took the mortgage from him. They cannot claim as innocent purchasers without notice of plaintiff’s title.
It Is insisted, however, that there was collusion and fraud between the plaintiff and J. C. Meyer in procuring the money for which the mortgage was given. That the payment of the $1300 and agreement to reconvey was kept a secret with that view, and that the subsequent procuration of an assignment to Meyer of the J. Simon & Co. decree, and the transfer of it to the plaintiff, Mattie B., were evidence of such frauds.
But we cannot see these transactions in that light. There is no evidence that when she paid off the J. Simon & Co. decree against her property, she knew of the execution of the mortgage to appellants, while the motive to free her estate from these incumbrances—a wholly righteous motive—is all sufficient to account for those payments.
The decree of the court below as to the title of Joseph Merrill to the J. M. Portis half of the lot is not assigned for error here. All parties acquiesce as to his title. It is not, therefore, necessary further to refer to it. The decree of the circuit court is in all things affirmed.
Chief Justice Cockrill did not sit in this case. | [
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Per Curiam.
Appellant Ricky Reese, by and through his attorney, has filed a motion for rule on clerk. His attorney, William Howard, states in the motion that he failed to have a hearing regarding the motion for extension of time.
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. We explained:
Where an appeal is not timely perfected, either the party or attorney fifing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney fifing the appeal is therefore faced with two options. First, where the party or attorney fifing 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. Howard 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.
Beverly C. Claunch, a full-time managing public defender for the Sixteenth Judicial District, moves this court for a second time to withdraw from representing the appellant. Ms. Claunch’s first motion was denied as it did not state whether she is provided a state-funded secretary. See Motes v. State, 368 Ark. 600, 247 S.W.3d 814 (2007). This court instructed that Ms. Claunch could resubmit her motion, providing information about whether she is provided a stated-funded secretary, in order for us to determine whether she qualifies for relief from appellant’s representation. See id.
Since this court’s decision in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), in which we held that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal, the General Assembly has changed the law. Act 1370 of 2001 provided, in part: “[PJersons employed as full-time public defenders who are not provided a state funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” Act of Apr. 5, 2001, No. 1370, 2001 Ark. Acts 5165, § 1 (codified at Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2005)).
Ms. Claunch’s most recent motion reveals that she is not provided a state-funded secretary. Because Ms. Claunch may be compensated for her work, we deny her motion to withdraw as counsel.
Denied. | [
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Annabelle Clinton Imber, Justice.
This is an appeal from a grant of summary judgment in favor of the Arkansas Crime Information Center (“ACIC”) and its director, Charles Pruitt, and Governor Mike Huckabee (collectively “Appellees”). The Pulaski County Circuit Court dismissed an action filed by Appellant Richard Emmet Jones (“Jones”) alleging a violation of his civil rights stemming from the ACIC’s refusal to remove prior records of his arrests from its database, despite court orders to do so. Jones claimed irreparable harm to his reputation, equal protection and due process violations, and a deprivation of his liberty, reputation, and employment interests. We affirm the circuit court’s grant of summary judgment.
The relevant facts are as follows. On February 28, 1980, Jones was arrested for the offenses of keeping a gambling house and violation of the Uniform Controlled Substances Act. Those charges were ultimately dismissed. Fifteen years later, on May 27, 1995, Jones was arrested for the offenses of terroristic threatening and carrying a weapon. Once again, the charges were dismissed.
On February 1, 2001, the Benton Municipal Court entered two uniform “Orders to Seal,” directing that the records ofjones’s February 28, 1980 arrest be sealed pursuant to Act 738 of 1997 (codified at Ark. Code Ann. § 16-90-906 (Repl. 2006)). Similarly, on February 6, 2001, the Hot Springs Municipal Court entered identical orders directing that the records ofjones’s May 27, 1995 arrest be sealed. Under Act 738, any individual who has been charged and arrested for any criminal offense where the charges are subsequently dismissed is eligible to have all records, petitions, orders, docket sheets, and other documents relating to the case expunged. Ark. Code Ann. § 16-90-906.
The ACIC received a copy of the municipal court orders, which specifically stated that the records were to be sealed to all except for those authorized by law to have access. Additionally, each of the orders made a specific finding that the charges against Jones had been dismissed. In compliance therewith, the ACIC immediately sealed the computerized records concerning Jones’s arrests in 1980 and 1995. More particularly, the arrest records were electronically segregated and contained language stating that the records were sealed and were only available to criminal justice agencies for criminal justice purposes. Shortly thereafter, the Benton Municipal Court and the Hot Springs Municipal Court entered “Orders to Remove,” directing that the information about Jones’s arrests and the disposition of the charges be removed from the ACIC records because all charges had been dismissed.
Jones eventually filed an action in 2003 against the ACIC and its director, Charles Pruitt, in his official capacity, Governor Mike Huckabee, in his official capacity, and John Does 1-20, individually and in their official capacities, alleging a violation of his civil rights stemming from the ACIC’s “unlawful and ultra vires failure and refusal to follow existing Arkansas Law and other authority governing its conduct, specifically in its failure to destroy records upon court order and to properly restrict access to them prior to destruction.” In the action brought under 42 U.S.C. §§ 1983 and 1988 and the Arkansas Civil Rights Act of 1993, codified at Ark. Code Ann. §§ 16-123-101 through 16-123-108 (Repl. 2006), Jones further alleged that “unauthorized parties” had accessed his arrest records through the ACIC and that this access violated his right to privacy under the First Amendment to the Constitution of the United States and the Arkansas Constitution, as well as the ACIC enabling statutes, Ark. Code Ann. §§ 12-12-201 through 12-12-217 (Repl. 2003 & Supp. 2005). Finally, Jones urged the circuit court to declare Ark. Code Ann §§ 12-12-201 through 12-12-217 unconstitutional on its face and as applied.
Pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure, Appellees filed a motion to dismiss Jones’s complaint and amended complaint, which the circuit court construed as a motion for summary judgment. In the absence of any genuine issue of material fact, the circuit court granted the motion for summary judgment, and an order to that effect was entered on October 6, 2004. The court’s order dismissing all defendants, except John Does 1-20, included a ruling that “[t]he named Defendants in this case did not violate Plaintiffs constitutional rights.” From that order, Jones filed a notice of appeal, but we dismissed his appeal, finding that the order was not final or appealable. See Jones v. Huckabee, 363 Ark. 239, 213 S.W.3d 11 (2005). Upon Jones’s motion to dismiss the John Doe Defendants, the circuit court dismissed the remaining defendants without prejudice and Jones’s second appeal is now properly before us. This appeal involves an issue of first impression; thus, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(b)(l) (2006).
On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). The burden of sustaining the motion for summary judgment is always on the moving party and this court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Summary judgment is proper when the party opposing the motion fails to show that there is a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id. (citing Ark. R. Civ. P. 56 (2002)).
For his first point on appeal, Jones argues that the circuit court erred when it granted summary judgment in favor of Appellees. Specifically, he claims that the affidavits filed in the circuit court indicate the existence of genuine issues of material fact that require resolution at trial by a finder of fact. We disagree.
With regard to the expungement and sealing of criminal records, Ark. Code Ann. § 16-90-906 provides as follows:
Any individual who has been charged and arrested for any criminal offense where the charges are subsequently nolle prossed or dismissed or the individual is acquitted at trial is eligible to have all arrest records, petitions, orders, docket sheets, and any other documents relating to the case expunged in accordance with the procedures defined by this subchapter and upon entry of an order of expungement may state that no such charges, arrest, and the resulting trial ever occurred.
Ark. Code Ann. § 16-90-906 (Repl. 2006). Any individual who is eligible to have an offense expunged under section 16-90-906 may file a uniform petition to seal records with the circuit court in the county where the crime was committed. Id. § 16-90-904. In that regard, the ACIC is required to adopt and provide a uniform petition and order to seal records that shall be used by all petitioners and by all circuit and district courts in this state. Id. § 16-90-905. The “clean slate” effect of expungement is not absolute:
An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored and shall be completely exonerated, and the record which has been expunged shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law.
Id. § 16-90-902(a) (emphasis added). In other words, if specifically provided by law, an expunged criminal record could affect an individual’s civil rights or liberties.
The record in this case includes an affidavit by Richard J. Thomas, the Administrator for the Criminal History Division of the ACIC, in which he explains the procedure by which his agency expunges an arrest record:
[E]ach computerized arrest record is individually reviewed to ensure that it has been properly identified as belonging to the defendant and that it matches the Order to Seal. A caveat in capítol [sic] letters reading, “**THIS RECORD IS SEALED * RESTRICTED TO CRIMINAL JUSTICE USE ONLY*” is inserted at the beginning of the computerized record. All arrest information and court information follows. At the end of the record under the heading of “OTHER INFO” is the word “SEALED” and the date the record was sealed. This completes the sealing of one record. Each arrest record is handled the same way. The expunged records are then verified by another employee to ensure data entry was correct.
(Internal numbering omitted.) All parties agree that the records at issue here were electronically segregated; that is, they were only available to criminal justice agencies for criminal justice purposes.
As stated earlier, there is no dispute that Jones was arrested on February 28,1980, for the offenses of keeping a gambling house and violation of the Uniform Controlled Substances Act, and that he was arrested on May 27, 1995, for the offenses of terroristic threatening and carrying a weapon. Because the charges were subsequently dismissed, Jones became eligible under Ark. Code Ann. § 16-90-906 to have his arrest records expunged. Consequently, the municipal courts entered orders directing that the records concerning Jones’s arrests be sealed pursuant to Act 738 of 1997. The ACIC received a copy of the orders, which stated specifically that the records of the offenses were to be sealed to all except for those authorized by law to have access. Indeed, the records were immediately sealed and electronically segregated.
At issue here is Jones’s argument that the ACIC violated his civil rights when it refused to physically destroy his arrest records despite the court orders directing the removal of his arrest records from the ACIC database. His argument, however, ignores the following statutory definition: “ ‘[EJxpunge’ shall mean that the record or records in question shall be sealed, sequestered, and treated as confidential. . . . ‘expunge’ shall not mean the physical destruction of any records.” Ark. Code Ann. § 16-90-901(a)(l), (2) (Repl. 2006). Thus, we hold that the ACIC correctly complied with the municipal courts’ orders to seal the records consistent with the statutory requirements of Ark. Code Ann. §§ 16-90-901 through 16-90-906. With regard to the subsequent “Orders to Remove,” it is clear that any physical removal or destruction ofjones’s arrest records is not contemplated by state law. The dissemination of criminal history records is governed by statute:
(a) Pending information, conviction information, and nonconviction information available through the [ACIC], plus information obtained through the Interstate Identification Index or from another state’s record system and juvenile aftercare and custody information, shall be disseminated to criminal justice agencies and officials for the administration of justice.
(d) Expunged records will be made available to criminal justice agencies for criminal justice purposes as other laws permit.
Ark. Code Ann. § 12-12-1008 (Repl. 2003). In sum, Jones’s first point on appeal is without merit. The circuit court correctly concluded that Appellees were entitled to summary judgment as a matter of law.
For his second point on appeal, Jones contends that his privacy rights were violated when “someone accessed ACIC in an unauthorized fashion to use the information held there in a political campaign.” According to Jones, an unknown person illegally accessed his arrest records in the ACIC database and posted the records on the internet.
With respect to Jones’s civil rights claims against the ACIC, its director, and the governor, arising out of the alleged misuse of the arrest records, the doctrine of respondeat superior is not a basis for liability under the federal Civil Rights Act, codified at 42 U.S.C. § 1983. See Keeper v. King, 130 F.3d 1309 (8th Cir. 1997). Likewise, we conclude that the doctrine of respondeat superior is not a basis for liability under the Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 through 16-123-108. In construing our state’s version of 42 U.S.C. § 1983, section 16-123-105, this court may look for guidance to federal decisions interpreting 42 U.S.C. § 1983. Ark. Code Ann. § 16-123-105(c) (Repl. 2006).
The Arkansas General Assembly has provided the remedy of criminal prosecution for any misuse of arrest records: “Every person who shall knowingly release or disclose to any unauthorized person any information collected and maintained under this subchapter, and any person who knowingly obtains such information for purposes not authorized by this subchapter, shall be deemed guilty of a Class D felony.” Ark. Code Ann. § 12-12-1002 (Repl. 2003). The same penalty for similar conduct is set forth in Ark. Code Ann. § 12-12-212 (Repl. 2003). Yet, it does not appear from the record in this case that Jones ever attempted to pursue the available remedy of criminal prosecution.
Finally, in connection with his violation-of-privacy claims, Jones challenges the constitutionality of the ACIC enabling statutes, Ark. Code Ann. §§ 12-12-201 through 12-12-217, citing the right to privacy and the right to reputation as fundamental rights under the Arkansas Constitution, as well as this court’s decision in Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). Specifically, Jones seeks a declaration that Ark. Code Ann. §§ 12-12-201 through 12-12-217 is both unconstitutional on its face and as applied. Absent a specific ruling on the constitutionality of a statute, we are precluded from addressing the issue on appeal. Smith v. State, 363 Ark. 456, 215 S.W.3d 626 (2005). While the record below reflects the circuit court’s ruling that “[t]he named Defendants in this case did not violate Plaintiffs constitutional rights,” the circuit court made no specific ruling on the constitutionality of Ark. Code Ann. §§ 12-12-201 through 12-12-217. Accordingly, that issue is not preserved for appellate review.
Affirmed.
Effective July 1, 2001, municipal courts, as the trial courts of limited jurisdiction, became district courts under Amendment 80 to the Arkansas Constitution. Ark. Const, amend. 80, § 7.
Despite this specific finding, which in fact mirrors his own averments in the pleadings before the circuit court and in the initial brief before this court, Jones argued for the first time in his reply brief and at oral argument that he was not actually “charged” as defined in Ark. Code Ann. § 16-90-901. We do not address arguments raised for the first time in a reply brief. Ayala v. State, 365 Ark. 192, 226 S.W.3d 766 (2006); Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001). | [
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Riddick, J.
The defendant, J. D. Rose, was indicted and convicted in the Searcy Circuit Court for the crime of uttering and publishing a forged instrument with intent to obtain the property of one John Rose. He was sentenced to two years’ imprisonment in the State penitentiary. The evidence showed conclusively that the defendant forged the name of his father, John Rose, to an order addressed to the cashier of the Marshall Bank, requesting him to let J. D. Rose, the defendant, have sixty-five dollars, and to charge it to the account of John Rose, and in that way obtained sixty-five dollars from the bank. Soon after the defendant received the money he started for the Indian Territory in company with a young girl, seventeen years of age, whom he had induced to accompany him, leaving behind him a wife and six children without means of support. After he had got out of Searcy County, he heard that a reward had been offered for his arrest. He thereupon, of his own accord, surrendered to the sheriff of an adjacent county, and was by him carried back to Searcy County.
On the trial the father of the defendant testified that the defendant had no authority whatever to sign his name to such order. The defendant also took the stand, and testified in his own behalf. He admitted that he signed his father’s name to the order which he presented to the bank as genuine, and in that way obtained the money- from the bank. Continuing, he said: “I signed his name to the check and also the names of two witnesses, pretending to show that the check was my father’s. I wanted to get the money, and thought the bank would want two witnesses. The witnesses did not know I signed their names. I did not tell my father about getting his money after I got it and went home. I left soon after this with the girl, and traveled on foot part of the way. This all occurred in Searcy County, Arkansas, and within three years before I was indicted. I want to withdraw that part of my evidence I gave on direct examination to the effect that I signed papers for my father and did business for him. I never did business for him. I never signed but one check, and that was in his presence and fon him. I had no authority to get his money, yet I wrote the check, signed his name and the names of two wit* nesses for the purpose of getting the money, and I did get it. Still I did not believe he would prosecute me. I don’t think so now if it had not been he thought I had gone away forever and left my wife and six.children for him to support. He did care for them during my absence.”
It is not necessary to look to the evidence introduced by the State, for this testimony of the defendant himself makes out a clear case against him, and fully sustains the indictment. The only thing that can be said in his favor is that he seems to have made a candid statement. He admits that he signed his father’s name to the order on the bank without authority, anl also forged the' names of two persons purporting to be witnesses to the signature of his father. But he says that at the time he did so he thought his father would pay the order and not prosecute him. But, even had his father done so, the act of the defendant would still have been criminal. The crime charged in the indictment was complete when he passed this forged order and obtained the money from the bank, and no act of his father could have made it less criminal.
Counsel for the defendant asked the court to instruct the jury that, if the defendant at the time he wrote the order to the Marshall Bank did it in good faith, believing that his father would pay the same, and had good reason to believe that he would pay it, then the defendant would not be guilty, even though his father refused to pay it. But this instruction was clearly misleading. The testimony of both the defendant and his father shows that he had no authority to sign his father’s name to such an order, and that defendant knew this at the time he did so. He therefore did not act in good faith, and, as we have stated, the fact that he thought his father would pay the check in order to protect him did not make his act the less criminal.
This testimony of the defendant shows also that his intention was to obtain the money of his father, and not that of the bank, for he expected that his father would pay the order and say nothing. It sustains the allegation of the indictment that his intention was to fraudulently obtain the property of his father. The court therefore did not érr in refusing to instruct the jury that they should acquit the defendant if they believed that he intended to obtain the money of the bank, and not that of his father, because there was no evidence to sustain this theory of the case. Not only the testimony of the defendant shows that he intended to get the money of his father in this way, but, according to the authorities, it seems to be immaterial whether he actually intended to cheat his father or not. “Generally,” says Mr. Bishop, “there are two persons who may legally be defrauded; the one whose name is forged, and the one to whom the forged instrument is to be passed; and so the indictment may lay the intent to defraud either of these, and proof of an actual intent to pass as good, though there be shown no actual intent to defraud the particular person, will sustain the allegation. 2 Bishop, Crim. Law (4 Ed.), § 555. In such cases the law presumes the intention to defraud the person whose name is forged, when the evidence does not show to the contrary. Commonwealth v. Butterick, 100 Mass. 17; Commonwealth v. Star, 4 Allen (Mass.), 304; Regina v. Cooke, 8 C. & P. 586; 2 Bishop, New Crim. Law, § 597.
The instructions given by the court fairly covered the law of the case, and under the facts in this case there was no error in refusing those asked by the defendant.
Judgment affirmed. | [
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McCulloch, J.
Appellant, John Gazola, recovered a judgment against appellee, Mrs. M. J. Savage, on May 28, 1897, in the circuit court of Monroe County for the sum of $605.42, and on August 29, 1904, caused execution to be issued thereon, which was by the sheriff levied upon a lot owned by appellee in the city of Brinkley. Appellee claimed the lot as her homestead, and filed her schedule of exemptions with the clerk of the court, who issued a supersedeasi staying the sale under execution. Appellant presented to the circuit court at the next term his motion to quash the supersedeas, which motion was denied,. and he appealed to this court.
Appellee is a married woman, and formerly occupied the property as a homestead. The lot had a building thereon which appellee occupied as a residence and kept a hotel or boarding house therein for about nineteen years. The building was destroyed by fire in the fall of 1900 or spring of 1901, while she so occupied it, and she has not since resided upon the lot, but has resided in another house owned by her son in Brinkley. In the year 1903 she leased the lot for a term of five years to one Kelly, who built three houses thereon for business use. These are inexpensive wooden and iron buildings, and Kelly testified that his contract provided that he could remove the buildings at the end of the term, and that, if appellee desired to build a house upon the lot at any time and would pay him for his improvements, he would surrender possession to her. He also testified that he tried to purchase the lot from appellee, but that she declined to sell, saying that she expected to build there and move back on the property.
Appellee testified that she never abandoned her homestead claim, but intended to return to the property and - rebuild her home as soon as she could arrange her business so as to do it, and had reserved the privilege, in her contract with Kelly, of taking the property back at any time she was ready to rebuild. She refused repeated offers to purchase made by various persons, giving at the time as a reason her intention to rebuild a home on the lot.
The trial court made the following finding: “That Mrs. M. J. Savage is, and was at the date of the judgment, the head of a family and a citizen of the State of Arkansas, and resident of Monroe County; and, prior to the burning of the property situated on the land described in the motion, she had resided and had her residence for more than 15 years, residing thereon with her children; that when the property burned she took up her residence temporarily with a son, living in the town of Brinkley; that she intended to return to and make her future home upon said land. Court finds the property was characterized as her homestead, and that she never left it with the intention of not returning. The court holds the property exempt from seizure and sale under execution issued herein, and overrules motion to quash supersedeas.”
Is the evidence sufficient to sustain the court’s conclusion?
In Newton v. Russian, 74 Ark. 88, we said: “It is settled by the repeated decisions of this court that a temporary removal and absence from the homestead for the purposes of business, health or pleasure, without actual intention to abandon the same, will not displace the homestead right. [Citing cases]. A fortiori, an enforced temporary absence on account of the destruction of the dwelling house will not operate as an abandonment. Nor will such absence, under those circumstances, raise a presumption of abandonment unless continued for such length of time as to negative any intention to return.”
The lease given by appellee to Kelly would have raised a presumption of abandonment but for her express reservation of the right to pay for the improvements made by him and resume oc cupancy of the premises at any time that she might desire to rebuild her home. Such reservation tended to negative any intention to permanently abandon the homestead, and we think there is abundant evidence to sustain the court’s finding that appellee did not intend to abandon the homestead.
Where there is substantial evidence in support of the finding of the trial court, the same will not be set aside by this court on appeal. Robson v. Tomlinson, 54 Ark. 229; Schuman v. Sanderson, 73 Ark. 187.
Finding no error ip the proceedings, the judgment is affirmed. | [
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Battle, J.
L. C. Mauldin and J. S. Lake, being the owners of a certain tract of land situate in the county of Izard and State of Arkansas, for and in consideration of the sum of fifty-three dollars to them paid by the White River Railway Company, conveyed to the railway company a strip of land one hundred feet wide over, through and across the land, to be used as a right of way for a railroad, the middle of the strip to be the center of the track of the railroad, with the right of increasing the width of the same (strip) for necessary slopes, embankments and terminals, and with the right of changing watercourses and taking a supply of water 'and of borrowing or wasting earth, stone, or gravel outside of said limits and of felling .any trees which might endanger the operation of said railroad. The railway company located the strip over and across the land pursuant to the deed, and let the construction of its track over it to contractors. In constructing the railroad in this right of way it was necessary to blast considerable rock and throw the same on the adjoining lands of the grantors. The contractors, and those working under them, constructed the roadbed of the railroad within the bounds authorized by the deed and in the manner indicated, and in doing so threw large quantities of rock on the adjacent lands. After-wards Mauldin and Lake conveyed these lands to R. H. Hanks, and the White River Railway Company conveyed its railroad over the right of way to the St. Louis, Iron Mountain & Southern Railway Company. Hanks then brought this action against the latter company to recover damages to the lands caused by the blasting of rock. He recovered judgment against the defendant for $200; and the defendant appealed.
It is not necessary to consider the liability of appellant, under the statutes of this State and its purchase, for wrongs committed by the White River Railway Company. The effect of the deed of Mauldin and Lake to the right of way was to authorize the Railway Company to do whatever was lawful and necessary to do to construct its railway along that route, and to release it from liability for injury caused by such acts, “except as it arises from faulty construction.” St. Louis, Iron Mountain & Southern Ry. Co. v. Walbrink, 47 Ark. 330. The blasting was necessary, and the falling of rocks on the adjoining lands necessarily followed. No evidence was adduced to prove the contrary. The rock was removed by some person other than the appellee, the evidence does not show by whom.
Judgment is reversed, and the action dismissed. | [
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Battle, J.
D. A. Smith, R. E. Smith, and D. B. Smith, as D. A. Smith & Sons, brought this action against E. F. Shinn to recover damages for the loss of a small stern-wheel steamboat, about 46 feet long and 11 feet wide, named Anna May. Plaintiffs allege in their complaint that they were the owners of the boat, and operated the same on the waters of Big Lake and Little River, in Mississippi County, Ark.; that the' defendant, E. F. Shinn, without right took possession of said boat, and while operating her for .his own use and benefit she was sunk; that the boat was of the value'of $1,500, and that the wrongful acts of the appellant were the cause of her destruction, and asked judgment for the sum of $1,500 as damage.
“Appellant in his answer denies any information as to the ownership of said boat; denies at the time charged or at any time he forcibly or without right or authority, or at all, unmoored her and used and operated her for his own use and benefit, or that said boat was used at all by him; denies that the boat was in good condition, or that she was damaged in any way through any wrongful act of his. As a further defense, he states that the boat was old and unfit for service; that her dangerous and sinking condition was well known to the appellees, and that, if ishe was damaged at all, it was through their own negligence and lack of care.”
A trial by a jury resulted in a verdict for plaintiffs for the sum of $150, for which judgment was rendered in their favor, and defendant appealed.
“The following is a synopsis of the evidence. First, upon the part of the plaintiffs, the appellees here, .R. E. Smith, one of the appellees, was introduced and testified: The boat was a thirty-ton craft, and her hull had been rebuilt the year before; that she was built for the navigation of St. Francis and Little rivers, and carried a license as a steamboat; that she was worth about $600 or $700; that in June, 1902, as he was informed, the appellant unmoored the boat from her fastenings at the shore, and had moored her to a stump in the lake, where she sank. That he was the engineer of said boat, and that she was in good condition. On cross-examination he said that the machinery was worth about $500, her hull about $150, the superstructure $50, and other material about the boat about $75; that the machinery of the boat could have been removed, and the superstructure also taken off, that this boat had once before sunk, and been raised for about $100; that Sam Bunch was the agent of appellees for the care and protection of the boat.
“D. A. Smith also one of the appellees, testified to the good condition of the boat before she was sunk, and what her condi Lion was when he found her after she was sunk; that the water was from six to ten feet deep where she was lying, and that she was out from seventy-five to one hundred yards from the shore. He thinks the boat could have been raised, but to do so would have cost $250. He also on cross-examination stated that Sam Bunch was the watchman whose duty it was to look after and care for the boat.
“Will Wells also testified for appellees, and said that the defendant, the appellant here, had asked him and another man to move the boat from where she was moored against the bank, and knocking against the fish dock of appellant, to some other place; that they carried her out into the lake and tied her to a stump; Tidwell and Parker assisted .him in doing this; that they tied her in what they supposed was a safe and secure place and in a safe manner; that she stayed there ten or fifteen days before she sank; that he did not know the cause of her sinking.
“W. S. Brady testified for appellees that he lived about a mile and a half south of Manila and about a mile and a half from the lake where the boat sank; that he was one of the parties who helped remove the boat from her mooring and fasten her out in the lake.”
The defendant then introduced the following proof:
“Sam W. Bunch, who testified that he was acquainted with the parties to the suit:. that he had agreed to and was looking after the boat for the Smiths (the appellees here) : that he saw her at the time she was being moved from her mooring, from the shore to the stump, where she was tied and afterwards sunk; that he saw her every day, and that she was tied out there ten or fifteen days before she sank; that he notified the appellees of her condition; that after her condition was apparently dangerous he^could have saved her with an hour’s or two hours’ work. That Little Dan herein referred to is D. B. Smith, one of the appellees. That in his judgment the boat could have been raised for $50.' On cross-examination he says he did not think the boat was in a safe position; that after he told Dan Smith of her condition they did not have time to have prevented the accident, but on re-direct examination he said the boat sank either the night that he notified them that day, or the following night.
“Albert Youngblood testified for appellant that the cause of the sinking of the boat was not a stump or log under her side; that she was in good condition, and could have been raised with $50 or $100; that he himself was a pilot, and familiar with the handling of steamboats.
“Sherman Stone was introduced for appellant, and testified that he was the pilot on this boat; that he was familiar with her, and that her value would not exceed $250; that her sinking was caused by open seams above the water line, and that the boat was uncalked; that she filled with the rain, and .settled to-these uncalked seams, and from that cause sank; that no log or stump under her gunnels could have caused her to sink.
“The appellant for himself testified that he did not employ any one to remove the boat, but that he had permission from the appellees to have her removed, and that he asked some one for accommodation to do it, and that she was taken out and moored in what seemed to him to be a safe and secure place, and in a secure manner; that she remained there ten or fifteen days before she sank; that he himself was not aware of the fact that she was in any danger, or at least immediate danger.
“R. E. Smith was recalled for appellee, and testified that the boat had been calked about three months before she sank; that a calking would last about one boating season, which was six months.
“R. E. Smith was again recalled and testified that he was away from home upon the Mississippi River, trying to secure laborers; that when he came home the' boat was already sunk; that he lived about three miles and a half from where she sank; that he had never given the appellant authority to remove the boat from where he had left her moored to the place where she was sunk. Upon cross-examination he reiterated that Sam Bunch was to look after and care for the boat.
“D. ’A. Smith, one of the appellees, being recalled, said he never had received any notice of the boat’s dangerous condition, or that she was tied out in the lake until after she sank; also that he never had offered to sell the boat for as little as $300.”
The court, over the objections of the defendant, instructed the jury, in part, as follows:
“No 2. If by the defendant’s wrongful act the boat was moved into the stream negligently, and it afterwards appeared chat the boat was sinking, and he Had equal means with the plaintiff of saving the same, it is no defense that plaintiff might have lessened the damage by performing the duty for him.”
And instructed the jury, at the request of the defendant, as follows:
“No. 2. If you find from the evidence that the defendant removed the boat, or had it moved from the bank out into the stream or lake, and by reason of such removal it sanie, and that after its removal the plaintiffs, or either of them, or their agent or employee, knew of such removal, and of the danger of the boat’s sinking, and refused or neglected to exercise reasonable care and precaution to save it, then -plaintiffs can not recover.
“No. 7. The jury is instructed further that if they find that the sinking of the boat and consequent damages were brought about by defendant Shinn or by his agents or employee, and that, if they also find that after said boat was moved the plaintiffs themselves, or their agents or -employee, had knowledge of the boat’s dangerous position, if its position was dangerous, and the said plaintiff’s agent or employee neglected to use- and employ reasonable means of saving the boat, then defendant would not be liable.”
The instruction numbered 2, and given over the objection of the defendant, and the instructions given at the request of the defendant, should not have been given.
It appears from the evidence that appellant owned a “fish dock” near which the steamboat of appellees was moored, and the boat was knocking against the dock; that appellant caused the boat to be taken out into the lake about 150 yards and fastened to a stump; and that it remained there ten or fifteen days and sank. Now, if he moved it for the purpose of protecting his property and under circumstances which showed he did not intend to injure appellees, but did so in a negligent manner, and by reason of such negligent removal the boat sank, and appellees, or either of them, or their agent or employee whose duty it was to look after the boat for the purpose of protecting it, knew of such removal and of the danger of the boat’s sinking, and refused or neglected to exercise reasonable care and precaution to save it, and by the use thereof could have done so, appellees would not be entitled to recover anything • in this action. On the contrary, if the injury was wilful and unnecessary, he would be liable for damages. Sandford v. Eighth Avenue Railroad Company (N. Y.), 80 Am. Dec. 286; Birge v. Gardiner, 19 Conn. 507; Rowen v. N. Y., N. H. & Hartford R. Co., 59 Conn. 364; Ga. Pac. Ry. Co. v. Lee, 92 Ala. 262, 270.
The instructions given were in irreconcilable conflict and misleading.
We do not decide that the evidence was sufficient to sustain the verdict.
Reverse and remand for a new trial. | [
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Wood, J.,
(after stating the facts.) The court did not err in refusing to direct a peremptory verdict for appellant. The question of negligence was for the jury, and it was submitted upon correct instructions, and the evidence was ample to sustain the verdict. Indeed, so patent was the conflict in the testimony, and so purely was this a question of fact for the jury, that it appears to us that the appeal in this case must have been taken for delay merely. The judgment is therefore affirmed with the statutory penalty in such cases. See St. Louis, M. & S. E. Rd. Co. v. Shannon, 76 Ark. 166; St. Louis, I. M. & S. Ry. Co. v. Kimbertain, 76 Ark. 100; St. Louis & S. F. Rd. Co. v. Thompson, 76 Ark. 37; St. Louis & S. F. R. Co. v. Carlisle, 75 Ark. 560. | [
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Hill, C. J.
Appellee Young, as lessee of the Metropolitan Hotel in the city of Little Rock, brought an action of unlawful detainer against Mitchell, the appellant, to' obtain possession of a room in the lobby of said hotel occupied by Mitchell as a barber shop. On the trial before a jury the court directed a verdict for the plaintiff in said action, and Mitchell appealed.
The evidence develops these facts: The Metropolitan Hotel was owned by one Young, and at his death passed to his heirs and was probably controlled by the administrator. Torrey had a lease upon -it, and during his lease he sub-leased the barber shop to Mitchell. This was in writing, and stipulated that, should Torrey get a renewal of his lease, it would carry a like renewal of Mitchell’s lease of the barber shop. Torrey did obtain a renewal, and recognized Mitchell’s renewed lease. Mitchell held for about two years under the renewed lease, and Torjey died in possession of the leased premises. Thereafter Torrey’s administrator and the Young heirs and the administrator of Young consented to an order of probate court cancelling the Torrey lease, which still had some time to run. After this agreed cancellation of the Torrey lease the hotel was leased to Roger Young, the appellee, who had knowledge of Mitchell’s occupancy of the barber shop and of his lease thereof under Torrey. Mitchell was not a party to the surrender to the Torrey lease, and was not notified of the proceeding in the probate court, and has not consented thereto.
Where there is no covenant against subletting, a lessee has a right to sublease all or any part of the leased premises; and when he does so, he can not, by a surrender of the leased premises. to the lessor, defeat the rights of his undertenant. The interests of the undertenant will continue as if there had been no surrender; the owner of the property becoming the direct landlord of the undertenant. The lessee could only surrender what belonged to him and, having sublet part of the property, it is not his to surrender. The owner takes back the premises subject to the existing rights growing out of the original lease. These principles are found stated and applied in the following authorities: Krider v. Ramsey, 79 N. C. 354; Bailey v. Richardson, 66 Cal. 416; Adams v. Goddard, 48 Me. 212; Eten v. Luyster, 60 N. Y. 252; Jones on Landlord and Tenant, § 429.
It is urged that the bill of exceptions does not affirmatively show that it contains all of the evidence, but it does show inferentially and by natural implication from the language used that it contains all the evidence, and this is sufficient. Leggett v. Grimmett, 36 Ark. 496; Overman v State, 49 Ark. 364.
It is said appellant did not except to overruling the motion for new trial, but that objection is removed by correction of the record by nunc pro tunc entry. It is sufficient if the record shows the exception. Carpenter v. Dressler, 76 Ark. 400.
Reversed and remanded. | [
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Donald L. Corbin, Justice.
Appellant, S.G. Catlett d/b/a King’s Inn, appeals the denial of its motion for directed verdict in a jury trial which resulted in an award of damages to appellees Fred Stewart, Lee Ann Stewart, and Steaven E. Miller. We find no error and affirm.
The action arose out of a shooting that occurred February 9, 1986, on the premises of the King’s Inn in Searcy, Arkansas. Merle Fritts, the husband of Erma Fritts who was an on-duty employee of the appellant, shot the appellees following a domestic dispute with his wife. Appellees filed a negligence suit against appellant claiming that appellant had a duty of care to act reasonably in this situation and that appellant breached that duty vicariously through his employees. Appellant argued there was no duty owed to appellees or, in the alternative, the duty was satisfied by the actions taken by the employees. After receiving instructions relating to an ordinary duty of care, the jury returned a verdict awarding damages to appellees.
Appellant makes but one assignment of error in this appeal and that is the trial court’s failure to grant its motion for directed verdict. That is the sole issue before us. Because this case is somewhat confusing, perhaps it is equally important to state what appellant does not assign as error. Appellant does not challenge the giving of certain jury instructions regarding a duty of care.
Because, however, the concept of duty makes a peculiar appearance in this case, we feel it is important to relate some events that occurred at trial. After an objection by appellant to the giving of jury instructions relating to a duty of care, the trial judge made his determination of law that an ordinary duty of care was owed in this cáse. Because there was indeed a duty owed here, the trial judge was correct in denying the motion for directed verdict and then presenting the case to the jury for its determination of the various factual elements. The language of Adams v. Browning, 195 Ark. 1040, 115 S.W.2d 868 (1938), regarding the jury’s task of making factual determinations, was cited with approval in Pitts v. Greene, 238 Ark. 438, 382 S.W.2d 904 (1964), and bears repeating here:
“Under our system of jurisprudence, it is the province of the jury to pass upon the facts. It is not only their privilege but their right to judge of the sufficiency of the evidence. The credibility of the witnesses, the weight of their testimony, and its tendency, are matters peculiarly within the province of the jury. If there is any substantial evidence it is the duty of the court to submit the matter to the jury.”
Pitts, 238 Ark. at 441, 382 S.W.2d at 906.
That is what occurred in this case. The judge made a determination of law that appellant owed appellees an ordinary duty of care to act reasonably under the circumstances. The judge proceeded to instruct the jury on the remaining factual elements of negligence, and the jury rendered its verdict accordingly. Thus, the task before us in this case is to review the record, as it is presented to us by the parties and described in the preceding paragraph, and determine if there is sufficient evidence to support the jury’s verdict.
An appeal of a denial of a motion for a directed verdict is considered a challenge to the sufficiency of the evidence. Our standard of review in this situation is quite high indeed. We view all the evidence in the light most favorable to appellees, and if there is any evidence sufficient to warrant the verdict, we affirm the trial court’s refusal to direct a verdict. First Commercial Bank, N.A. v. Kremer, 292 Ark. 82, 728 S.W.2d 172 (1987).
Generally, the facts of this case are not disputed by the parties. Rather, it is the interpretation of the facts that is disputed here. A review of the facts and all the evidence presented at trial as viewed most favorably to appellees reveals that there is sufficient evidence to support the verdict. Accordingly, we affirm the trial court’s refusal to grant a directed verdict.
The evidence reveals that Merle and Erma Fritts were married in 1983. Merle later became disabled by a heart attack and subsequent back surgery. Thereafter, he began to drink heavily. According to Erma, while he was drinking he was continually hitting her. On one occasion, he threw beer in her face and verbally abused her, forcing her to run to a neighbor’s home while he roamed outside with a gun. On another occasion, Merle choked Erma with such force that she had to seek medical treatment.
Merle Fritts appeared at the King’s Inn at about twenty minutes before 7:00 a.m. on the day of the shooting. He had a conversation with Nancy Blackshire, who was on duty as the desk clerk. Erma was scheduled to relieve her at 7:00 a.m. Ms. Blackshire testified that she could smell liquor on Merle’s breath. Prior to that morning, Erma told Ms. Blackshire that Merle drank heavily and that she was afraid of him when he was drinking. Ms. Blackshire was also aware of the parties’ divorce action.
Erma arrived at work at the King’s Inn at approximately 6:50 a.m. She observed that Merle appeared to be drunk or that something was wrong with him. She said she was not fearful until Merle indicated he was going to grab her by the hair of her head and drag her out of the motel. She said he had a wild appearance when he made this threat. He also threatened to blow her head off. She testified that she then asked Dub Throckmorton, manager of the restaurant next to the motel lobby and a life-long friend of Merle’s, to invite Merle in for coffee and to talk to him. She testified that she could have “eased in the back and used the phone but I didn’t think nothing about that.”
Throckmorton saw that Merle was angry and obviously intoxicated. He knew from previous experience that Merle was a troublemaker when he had been drinking. He said Erma asked him to call the police, but he did not because he thought she should. After Merle threatened to blow Erma’s head off, he talked with Merle for about twenty minutes. Each time he thought he had Merle calmed down, Erma would interject a remark that would again anger Merle, causing him to become more vulgar and abusive.
At about 7:20 a.m., after Throckmorton’s attempts to calm Merle, Merle left the restaurant, got a shotgun from his truck, and returned to the motel. Throckmorton observed Merle’s movements and asked appellee Fred Stewart, who was drinking coffee in the restaurant, to help him stop Merle. Stewart agreed and gave Throckmorton the telephone number of the police department. Merle entered the motel lobby and began shooting, severely injuring Fred Stewart and Steaven Miller. Throckmorton called the police who arrested Merle shortly after their arrival.
Twelve reasonable jurors, who lived in the community where the shooting occurred, acting under the instructions by the court, reached the reasonable conclusion that Erma Fritts did not meet her duty to exercise ordinary care to prevent the harm from occurring, a harm that in their judgment a reasonable person should or could have foreseen.
Generally, if there is any conflict in the evidence, or we find the evidence is not in dispute but is in such a state that fair-minded people might have different conclusions, then a jury question is presented, and a directed verdict will be overturned. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980). It follows that the reverse is also true; if there is evidence about which fair-minded people might make different conclusions, then a jury question is presented and a denial of a motion for directed verdict will be affirmed. When applying the law set out above to the aforementioned factual situation in this case, we are unable to say there is no evidence of negligence on appellant’s part to support the jury’s verdict. Accordingly, we hold that, based on the evidence presented and instructions given to the jury, there was sufficient evidence to support the verdict for appellees. We therefore affirm the trial judge’s denial of appellant’s motion for directed verdict.
ANALYSIS OF NEGLIGENCE
The question of what duty, if any, appellant owed to the appellees is answered as early as the case of Ford v. Adams, 212 Ark. 458, 206 S.W.2d 970 (1947), where we recognized that a hotel is not an insurer of the safety of its guests, but that it is charged with the duty of taking all precautions for the protection of its guests which reasonable prudence and ordinary care would suggest. There, we established that as a matter of law the appellant hotel owed a duty of ordinary care to the appellees. Given the facts of this case, it is clear appellant owed appellees a duty of ordinary, care.
The determination of the remaining factual elements were within the province of the jury. See Stacks v. Arkansas Power and Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989); Keck v. American Employment Agency, 219 Ark. 294, 652 S.W.2d 2 (1983), (questions of causation and foreseeability may be questions of fact); Linxwiler v. El Dorado Sports Center, 233 Ark. 191, 343 S.W.2d 411 (1961), (the determination of the satisfaction of a duty of care is a question for the jury).
With respect to the foreseeability issue, appellant argues it was unforeseeable that Merle Fritts would act as he did on the morning in question. Appellees argue, on the other hand, it is not necessary that the particular kind of harm be foreseen. We agree with appellees. We held in Bergetz v. Repka, 244 Ark. 60, 63, 424 S.W.2d 367, 369 (1968) that:
“It is not,” . . . “necessary that the particular injury should have been foreseen. . . . ‘Doubtless the particular situation might not have been foreseen, but this was not essential to making out a charge of negligence. Accidents as they occur are seldom foreshadowed; otherwise many would be avoided. If the act or omission is of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the natural consequences which occurred, whether he might have foreseen it or not.’ ”
Clearly, the fact that Erma Fritts did not foresee that Merle Fritts would use a gun and harm other people did not resolve the issue of Erma’s negligence. Her negligence is properly measured by whether a reasonable person would have foreseen a risk of harm in Merle’s conduct.
FIREMAN’S RULE
Within their argument, appellant argues that the “fireman’s rule” is applicable to appellee Stewart. This rule merely holds that fire fighters and police officers who enter premises in the execution of their official duties do so as licensees, under a privilege conferred by legal authority, usually under circumstances of emergency. Prosser and Keeton on the Law of Torts, § 61, pp. 429-431 (5th ed. 1984). We have not adopted this rule in Arkansas. Fred Stewart, in contrast, entered the King’s Inn on February 9 as a private citizen and business customer of the restaurant, for the purpose of drinking coffee, reading a magazine, and meeting friends, as he was accustomed to doing several times each week. Although Mr. Stewart was a constable for the city of Kensett, Arkansas, at the time of his injuries, his official authority and responsibilities did not extend beyond the limits of that township.
(a) Each constable shall be a conservator of the peace in his township and shall suppress all riots, affrays, fights, and unlawful assemblies, and shall keep the peace and cause offenders to be arrested and dealt with according to law.
(b) If any offense cognizable before a justice of the peace in his township is committed in his presence, the constable shall immediately arrest the offender ....
Ark. Code Ann. § 16-19-301 (1987).
Appellees contend that Fred Stewart had no legal authority or duty to arrest and restrain Merle Fritts, and his attempt to intercede when Fritts returned to the motel with a firearm was motivated entirely by humanitarian concerns, as the court properly instructed the jury. We agree.
Affirmed.
Newbern and Brown, JJ., dissent. | [
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Robert L. Brown, Justice.
This case involves an appeal from a rape conviction and first degree battery conviction, where the appellant, Lonnie Strawhacker, received a life sentence for rape, as an habitual offender, and thirty years for first degree battery, with the two sentences to run concurrently. The appellant argues four points on appeal, and the state as appellee raises one further point under Supreme Court Rule 11(f).
The facts were related by the victim at trial. The appellant did not testify. On Friday night, August 11,1989, the victim went by herself to a nightclub called The Rink in Fayetteville at 9:00 p.m. and stayed there for two to three hours. Prior to going she had consumed about six beers. At The Rink she had at least two more beers and went across the street to a second nightclub, Club West, where she was refused entry because the man at the door said she was too intoxicated. The victim then crossed the street again to find her car, and as she was about to walk down into a ditch area, which had a very rocky bed, she was struck from behind and pushed into the ditch. A man put his hand over her mouth and then tried to choke her. He struck her several times in the face, head, and abdomen with his fists.
The man asked her to take her clothes off, and when she could not, he continued to beat her. By this time she was bleeding from the mouth and nose, and her eyes were swelling shut. The appellant then proceeded to rape her.
The victim estimates she was in the ditch with the appellant for five hours, but because of the darkness and her swollen eyes she never was able to see her attacker’s face. After the appellant and the victim left the ditch, they went to the victim’s mobile home in a trailer park. The victim was in considerable pain and got into her bed, where appellant joined her. The victim does not know whether the appellant had sexual intercourse with her in bed, because she was drifting in and out of consciousness.
When the victim awoke in the morning, the appellant had gone, and, though virtually blind because of her swollen eyes, she made her way to a neighbor’s house to seek help and was taken to the hospital.
Motion for Mistrial
The appellant first argues that a police detective’s testimony which alluded to prior bad acts by the appellant and his conviction for third degree battery, a misdemeanor, severely prejudiced the appellant’s case. The colloquy between the prosecutor and the detective was as follows:
Prosecutor: That would be through his conversation with Mr. Krogman?
Detective: That’s correct. We began to research through our department files to see what information we might have on Mr. Strawhacker. The only thing that we could find there was that he had been involved in a fight in May of 1989. We didn’t have any current photographs of him on file, but we did have a misdemeanor arrest warrant for him for failure to answer a summons on a failure to pay fines and costs on an original charge of third degree battery.
Three more questions and answers ensued, after which the defense counsel approached the bench and moved for a mistrial due to the mention of the prior conviction.
The trial court denied the motion for mistrial, and the defense counsel asked for an admonishment to the jury which the trial court made:
Ladies and gentlemen of the jury, I want to instruct you to totally disregard any comments the witness might have made relative to a conviction for battery in the third degree, any prior arrest warrants or any mug shots. That has been ruled on by the Court that it will be totally disregarded by you. Is there anyone that feels they cannot follow that instruction? (No response.) That’s not to be considered in this case in any way whatsoever.
We have held in the past that the trial court is granted wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984). We have further held that a cautionary instruction or admonishment to the jury can make harmless any prejudice that might occur. Id; see also Ronning v. State, 295 Ark. 228, 748 SW.2d 633 (1988); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).
Another important factor we have considered in similar cases is whether the prosecutor deliberately induced a prejudicial response. See, e.g., Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983). In Maxwell the prosecutor specifically referred to a prior conviction in his cross examination, and we held that an admonishment by the trial court did not cure the possibility of prejudice. We concluded that the deliberateness of the prosecutor’s action could not be “made harmless by anything less than a reprimand in the presence of the jury or by the granting of a mistrial.” 279 Ark. at 425, 652 S.W.2d at 33. In this case that deliberateness does not exist. The prosecutor’s action was inadvertent and did not specifically elicit the response from the detective.
There is always some prejudice that results from the inadvertent mention of a prior conviction, albeit a misdemeanor, in front of the jury. Any prejudice, however, was sufficiently cured by the trial court’s admonishment, and the trial court was correct in denying the mistrial motion under these facts.
Admissibility of Photographs
The appellant next argues that the two photographs of the beaten and scratched victim should not have been admitted into evidence, because they were inflammatory and cumulative, following the victim’s testimony. We do not agree. The appellant was charged with rape, an offense which requires proof of forcible compulsion, and first degree battery, where serious bodily injury must be proven for a conviction. Corroborative photographs showing the extent of the bodily injury to the face, head, abdomen, and breasts of the victim certainly were relevant to the charges. Such photographs are admissible within the discretion of the trial judge if they help the jury understand the testimony. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). They are further admissible to show the nature and extent of the victim’s injuries. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Even inflammatory photographs can be admitted, if they shed light on any issue or are helpful to the jury. Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990). The photographs introduced in this case easily qualify under the Richmond, Earl, and Cash standards.
The defense counsel at trial sought to stipulate that the victim was raped and beaten, while at the same time denying the appellant’s involvement, in an effort to eliminate the photographs as evidence of those crimes. We have previously held, however, that a defendant cannot prevent the state from offering proof of photographs simply by conceding the fact of the crime. See Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Here, that is exactly what defense counsel attempted to do.
The trial court did not abuse its discretion in admitting the photographs into evidence.
Double Jeopardy
For his third argument the appellant contends that his double jeopardy rights were violated due to conviction for first degree battery which, he argues, is a crime embraced within the “forcible compulsion” element of rape. The information charged that the appellant:
did unlawfully, feloniously, and by forcible compulsion, engage in sexual intercourse or deviate sexual activity with another person, in violation of A.C.A. §5-14-103, against the peace and dignity of the State of Arkansas; and
did unlawfully and feloniously cause serious physical injury to another person, under circumstances manifesting extreme indifference to the value of human life, in violation of A.C.A. §5-13-201, against the peace and dignity of the State of Arkansas ....
Our statute on double jeopardy requires that a defendant cannot be convicted of more than one offense, when one offense is included within another. Ark. Code Ann. § 5-1-110 (1987). An offense is included within another offense, if it is established by proof of the same or less than all the elements required to establish the commission of the other offense. Id. That is not the situation in this case. Rape and first degree battery are separate and distinct crimes as set out in the information with different elements of proof. And neither is a crime which can be subsumed under the other. See Henderson v. State, 286 Ark. 4, 688 S.W.2d 734 (1985). Moreover, “forcible compulsion” under the rape statute is defined as “physical force,” which is further defined as “any bodily impact, restraint or confinement, or the threat thereof.” Ark. Code Ann. § 5-14-101(2) (1987); West v. State, 290 Ark. 329, 335, 719 S.W.2d 684, 688 (1986). “Serious physical injury” under the first degree battery statute is defined as “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-102 (1987). Comparing the elements of forcible compulsion and serious bodily injury highlights the substantial difference between the two crimes. Quite simply, the injury contemplated under the first degree battery statute is much more significant than forcible compulsion. The appellant’s argument on this point has no merit.
Voice Identification
The appellant further contests a voice lineup which was conducted on August 16, 1989 — four days after the crime — while the victim was still in the hospital. The appellant and five police officers participated in the lineup. Each man read the following sentences: “Let’s go to Club West and go drinking. I like light beer. I’m going to kill you. Shut up. I’m going to kill you, bitch. I’m going to kill you, bitch. Shut up. Shut up. You need to go take a bath and clean up.” The victim could hear but not see the speakers, because they stood behind curtains.
The appellant argues that the police officers had “cop voices” which were distinguishable from the appellant’s and that by directing the appellant where to stand before he spoke, the supervisor of the lineup signaled the identity of the suspect to the victim. We do not agree. The supervisor at the lineup also directed another participant where to stand. And though the victim asked the appellant to read the sentences one more time, she testified this was not due to uncertainly but was done to confirm her decision.
Voice identifications are permissible in Arkansas. See Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984). As we also said in Wilson: “It is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide what weight the identification testimony should be given. 282 Ark. at 553, 669 S.W.2d at 890.
The admissibility of identification evidence is a matter for the trial court, and we will not reverse unless its ruling is clearly erroneous. Wilson v. State, supra. Furthermore, we will not insinuate ourselves into this process, unless the likelihood of irreparable misidentification is substantial. See Simmons v. United States, 390 U.S. 377 (1968).
The trial court listened to a tape recording of the lineup and not only admitted it but added, “It appears to me to be an awfully clean lineup.” We affirm his decision on this point.
Sufficiency of the Proof - First Degree Battery
Lastly, there is an argument raised by the state under Supreme Court Rule 11 (f) as to the sufficiency of the appellant’s conduct to warrant a first degree battery conviction. The appellant did not raise the sufficiency question before the trial court, and by not doing so he waived his right to raise this issue on appeal. We have repeatedly declined to consider sua sponte what was not raised before the trial court for its consideration. See, e.g., Parkerv. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
This appeal arises from a declaratory judgment and involves the interpretation and construction of an insurance policy. We do not reach the merits of the appeal since the trial court’s order fails to comply with Ark. R. Civ. P. Rule 54(b).
The appellees, First Commercial Bank (Bank), as guardian of the estate of Eric Wayne Eslick, a minor, and Gary and Linda Eslick, parents and next friends of Eric Wayne Eslick, sued Maxwell Baldwin, James Kwee, Richard B. Clark, and David Barclay for alleged medical malpractice in the obstetrical care of Linda Eslick and the delivery of her son, Eric Eslick. The issues on appeal, however, only concern the malpractice insurance coverage of the appellants, Dr. Baldwin and Dr. Barclay.
At the time of the alleged malpractice, Doctors Baldwin and Barclay were members of the University of Arkansas School of Medicine faculty and were involved in the administration and operation of the University resident program, of which Linda Eslick was a patient. In addition, Doctors Baldwin and Barclay practiced medicine under the auspices of the University Medical Group (UMG), which is an association of University faculty physicians engaged in private practice. The doctors were insured against medical malpractice by a policy issued by appellant, St. Paul Fire and Marine Insurance Company (St. Paul), in 1973.
St. Paul was allowed to intervene in the action since it contended that the policy was intended to cover only those acts or omissions occurring while the doctors were engaged in private practice as members of the UMG, and not, as alleged in the Bank’s complaint, those acts or omissions involving the doctors’ positions as state employees working with the resident program.
The parties filed a joint motion for declaratory relief requesting the court to determine the extent of coverage afforded by the policy and stipulating that Doctors Baldwin and Barclay would only be liable to the extent of any insurance coverage.
The trial court held that the insurance policy was “sufficiently broad in scope” as to insure the appellant physicians not only in their private practice but in their capacities as state employees as well. The court’s order provided that it’s decision was a “final judgment as to St. Paul” and dismissed that party from the lawsuit; however, it specifically stated that Doctors Baldwin and Barclay “should be retained as party defendants in this litigation.” Unfortunately, the order did not reflect that the trial court made an express determination that there was no just cause for delay, as required by Rule 54(b).
Rule 54(b) provides in pertinent part:
When more than one claim for relief is presented in an action, whether as a claim, a counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment . . . .(Emphasis added).
We have stated many times that strict compliance with Rule 54(b) is necessary before an order is appealable, and we have specifically held that the absence of “an express determination that there is no just reason for delay” prevents us from hearing the appeal. Martin v. Couey Chrysler-Plymouth, Inc., 302 Ark. 33, 786 S.W.2d 576 (1990); Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987).
Although the issue was not raised by the parties on appeal, compliance with this rule is a jurisdictional requirement that we must raise sua sponte. Tackett v. Robbs, supra. In doing so, we dismiss this appeal without prejudice. | [
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David Newbern, Associate Justice.
Antonio Demarion Coley appeals from his conviction of aggravated robbery and forgery for which he was sentenced as an habitual criminal to life imprisonment plus 30 years. His sole argument is that the evidence was insufficient. We find the evidence was sufficient, and we have determined, in accordance with our Rule 11 (f), that the court made no error prejudicial to the defendant. The conviction is affirmed.
Marie Robinson identified Coley as the man who, on January 12, 1989, appeared at the Jackpot Store where she worked and attempted to cash a check. He wrote the check in her presence, making it payable to “Jack Pot” for $20. He then tore the check out of a checkbook and turned it over and endorsed it with the name “Tony Johnson” and a phone number. The check, which was introduced as an exhibit, was on the account of Michelle McEwen, and it was signed with that name.
Ms. Robinson testified she explained to Coley she could not cash a check except for the amount of purchase. With that he picked up a carton of soft drinks. She said that was not enough of a purchase. Coley then asked that she call the store manager to approve the check. When she turned away to place the call, she heard the cash register make a noise as if one were trying to open it but had punched the wrong key. She turned to face Coley and told him she could not reach the manager. Coley then asked that she change a dollar. When she opened the register, Coley attempted to get his hand in it. She slammed the drawer closed and asked what he was doing. She testified Coley then backed away, placed his hand in his pocket, and said, “If you’re not going to give me the money, I’m going to have to shoot you.” She twice asked Coley what he had said, and he repeated the statement twice. She then screamed at people on the store lot, and Coley picked up the soft drinks and ran.
Robbery is defined by Ark. Code Ann. § 5-12-102(a) (1987) as follows: “A person commits robbery if, with the purpose of committing a theft. . ., he. . . threatens to immediately employ physical force upon another.” Aggravated robbery occurs, according to Ark. Code Ann. § 5-12-103(a)(l) (1987), if the person committing robbery “is armed with a deadly weapon or represents by word or conduct that he is so armed . . . .”
Coley cites Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), for the proposition that the necessary “substantial evidence” of guilt must do more than create a suspicion and must be of sufficient force and character to force the mind beyond conjecture and compel a conclusion one way or the other. The evidence in this case meets that test.
1. Aggravated robbery
Coley argues that Ms. Robinson’s identification of him in a photo of a physical line-up did not occur until a month after the robbery and that she had described him to the police only as being a black man six feet tall and weighing 180 pounds. No authority is cited in support of his contention that a “belated” identification or such a general description discredits Ms. Robinsons’s positive identification of Coley from the line-up photo and at the trial.
He also argues the evidence was insufficient to prove there was a threat of force. Ms. Robinson’s testimony included the following:
A: . . . I said, “What are you doing?” And he backed off, and he put his hand in his j acket, and he said, “If you’re not going to give me the money, I’m going to have to shoot you.” And I said, “What?” And he said, “If you don’t give me the money, I’m going to have to shoot you.” And he told me that— I asked him again. I don’t know why I asked him three times. I couldn’t believe it. And he told me three times he was going to shoot me if I didn’t give him the money. And I started yelling for the kids out on the parking lot, and he ran out and got in his car. He took the six-pack of Cokes with him, and left.
Q: Were you scared?
A: Not at first, no, sir. After he left, I was very scared. Q: Did you ever see a gun?
A: No, sir.
Q: Why did you ask him again?
A: I just couldn’t believe he was doing it. I mean, I didn’t see a gun, and he just well, if you’re not going to give me the money, I’ll have to shoot you. And I just— I don’t know. I guess I just was nervous or something.
Although he does not cite our cases on the point, Coley’s contention appears to be that Ms. Robinson’s actions belied any fear on her part that Coley had a gun in his pocket. The statute says nothing about fear in the victim, but we held in Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980), that to satisfy the threat of deadly force requirement there must be an appreciation on the part of the victim that the accused was armed. Fairchild acknowledged he had tried to make his victim think he had a gun by placing his hand inside his shirt; however, the evidence was that the victim placed no significance on the hand inside the shirt.
In Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985), we held that the fact that Richard was armed with a cap pistol which was perceived by the victim as a deadly weapon was sufficient to satisfy the statute. We noted in passing that the “gravamen of the crime of robbery is the injury or threat of injury to the victim. The threat of injury was just as real to the victim in this case as it would have been had the gun been capable of inflicting injury.”
In Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990), we held that where there has been a “verbal representation” of being armed with a deadly weapon the requirement of § 5-12-103(a)(1) is satisfied. Clemmons’s victim testified she assumed “it was his finger in his jacket” although Clemmons had said “I’ve got a gun. Give me your purse or I’m going to shoot you.” We distinguished the Fairchild case solely on the basis of Clemmons’s statement that he had a gun and would shoot the victim. Although Coley did not say he had a gun, his statement that he would “shoot” Ms. Robinson if she did not give him the money is a verbal representation that he was armed with a deadly weapon.
2. Forgery
Forgery is described, in part, by Ark. Code Ann. § 5-37-201(a) (1987) as drawing a written instrument purporting to be the act of a person who did not authorize it. Second degree forgery occurs when a person forges a check “that does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status.” Ark. Code Ann. § 5-37-201 (c)(1) (1987). Coley’s argument here is that the evidence showed that a fingerprint analysis was done of the check and it did not show Coley’s prints. Michelle McEwen testified that the check was on her account, that her checkbook had been stolen, and that she had not given anyone authority to sign her name to the check.
The fact that Coley’s fingerprints were not found on the check becomes insignificant in the face of the testimony of Ms. Robinson that she observed Coley draw the check. It was the prerogative of the jury to believe or disbelieve Ms. Robinson’s testimony. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).
We do not “pass upon the credibility of the witnesses and [have] no right to disregard the testimony of any witness after the jury has given it full credence, at least where, as here, it cannot be said with assurance that it was inherently improbable, physically impossible or so clearly unbelievable that reasonable minds could not differ thereon.”
Robinson v. State, 291 Ark. 212, 723 S.W.2d 818 (1987), quoting Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).
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Conley Byrd, Justice.
This litigation between appellant, Plastics Research & Development Corporation, and appellees, Bill Norman and Rebel Manufacturing 'Company, Inc., arises out of the manufacture and sale of a plastic fishing lure called “Rebel.” At issue is (1) whether Bill Norman breached his employment contract with Plastics Research calling for 4 per cent of the net profits of their lure department, (2) the method of calculating the net profits for the lure department as distinguished from the net profits of appellant’s whole operation, and (3) whether Bill Norman and Rebel Manufacturing are guilty of unfair competition in the marketing of an identical lure.
Bill Norman commenced the litigation by filing cause No. 3773 based onjiis contract of employment with Plastics Research, which provided in part:
“* * * 2. Employee will receive a base salary of $800.00 per month for the year November 1, 1964 through November 1, 1965. In.addition thereto Employer agrees to pay to Employee, as a bonus 4% of the net profits of the Lure Department for the fiscal year November 1, 1964, ending November 1, 1965.”
He prayed for an accounting of the net profits of the lure department and ■ for a judgment for 4 per cent thereof. Appellant pleaded that Norman had breached his employment contract by incorporating “Rebel Manufacturing Company, Inc.” on October 25, 1965, before his employment ended, and that Norman had solicited appellant’s sales representatives to withhold orders to appellant until Rebel Manufacturing got into production of an identical lure. Prayer was that Norman take nothing on his complaint and that he be enjoined from using any information acquired while employed by appellant in the manufacture, promotion or sale of fishing lures. It was also asked that Norman be enjoined from engaging directly or indirectly in the manufacture of lures using the name “Rebel” or “Rebel Minnow.”
Subsequently appellant filed cause No. 3858 against both Norman and Rebel Manufacturing, alleging unfair competition and praying that Norman and Rebel Manufacturing bo restrained from, manufacturing' a fishing lure similar to the “Rebel’Mure,.from using the name “Rebel” and from representing that appellant was in financial trouble, that Norman me directed to turn over to appellant any molds made from appellant’s materials, and for damages.
The two causes were consolidated for trial. In cause No. 3858 the trial court found no unfair competition but did enjoin Norman from making statements to the effect that appellant was in such bad financial shape that it could not make delivery of goods. In cause No. 3773 the trial court found no breach of the employment contract by Norman and calculated the net income of the lure department to be $367,231.64, resulting in a judgment in Norman’s favor of $14,689.26 for his bonus.
The record shows that Norman was in the fishing lure manufacturing business on his own, to some extent, at the time of his employment by appellant in the spring of 1963. Norman’s first pay check from appellant was for $300 before deductions. By-August 1964 his salary, by written agreement, had been increased to $15,000, and for the year ending October 31, 1965, he had a base contract for $800 per month plus 4% of the net profits of the lure department. Sales of the “Rebel” lure had climbed from nothing, at the time Norman was employed, to $893,884.50 for the year ending October 31, 1965. Appellant fired Norman on November 5, 1965.
A dispute between Norman and appellant about the net profits of the lure department had arisen before his discharge. Counsel was retained by Norman by October 18, 1965, and appellant was so notified on that date by Norman’s counsel. Prior to June 20, 1965, statements showing sales and costs of purchases had been furnished to Norman, but because of labor problems between appellant and its employees no statements were furnished thereafter.
With reference to Norman’s alleged breach of the employment contract, the record shows that he caused “Rebel Manufacturing Company, Inc.” to be incorporated on October 25, 1965, six days before the termination of his employment contract. Prior to October 31 Norman had discussed with other employees the possibility of going into a competitive business. Furthermore, there was testimony by appellant’s sales representatives that around November 1, 1965, Norman had solicited them to hold their orders until he could get into production.
The trial court found that Norman’s conduct amounted to nothing more than a mere, planning for employment upon the termination of his employment contract. The finding is amply supported by the record and is in accord with our prior cases. In Hamilton Depositors Corp. v. Browne, 199 Ark. 953, 136 S. W. 2d 1031 (1940), we recognized that merely organizing a corporation during employment to carry on a rival business after expiration of the term of employment did not amount to a breach of an employment contract. One is entitled to seek other .employment before he is on the street.
The net profits of the lure department present the most difficult issue in this litigation. Obviously “net profit” means that which is left after payment of necessary expenses. The dispute here is complicated by appellant’s departmentalized accounting and the allocation of indirect expenses among its several departments. The departmentalized accounting and intercompany charges were explained by Loren Janes, appellant’s accountant, in this manner: ■
“Q. Now, take for instance, as I understand it, your plant is departmentalized?
A. Yes.
Q. Now mention has been previously made about charges to various departments. You have ' also outside customers do you not, such as Norge and so forth?
A. Yes.
Q. Are they charged on the same basis as your departments ?
A. No
Q. What is the difference?
A. It is a compromise difference, but essentially it is half the profit potential or 10% less is just what it about amounts to. Exactly what it amounts to, in fact, the in the Lure Department for instance, [sic]
Q. I don’t understand that. Exactly what do you mean?
A. In the case of Norge, we would take a job, we would take a mold to run in our press, we would charge them at $8.00 per hour per thousand pieces plus material at cost, or reasonably therefor.
Q. What did this $8.00 encompass?
A. This covers everything including profit for the Production Department.
Q. Now, assume that the same item was manufactured for the Lure Department.
A. You would charge it at $7.20 per hour.”
Janes testified that when a payroll was written, he directly allocated charges in labor hire, labor production, labor tooling, or labor overhead; and that when a person worked in a department his labor cost was directly charged to that department, but with overhead labor, the cost was spread according to an allocation agreed upon between the department heads, including Norman-
With reference to supplies and expenses, Janes testified that they were allocated each month on the basis of each department’s outside sales as a percentage of the company’s total outside sales. Thus, if the lure department sold 50 per cent of. the sales of the whole company, the production department 30 per cent and the tooling department 20 per cent, these supplies would be charged on the basis of 50 per cent of the cost, say, of printing checks, to the lure department, 30 per cent to the production department and 20 per cent to the tooling department.
The records kept monthly by Janes show many discrepancies between the monthly allocations and the final allocations. For instance, the total “Direct Labor” shown on the monthly books was $84,441.51, whereas the total calculated by appellant after Norman was fired was $98,005.18. No explanation is given for the nearly $14,000 difference. The cost of purchases, as shown by the monthly books, was $148,039.70, but appellant’s final calculation showed this figure to be $280,023.02.
The discrepancy in the figures involving cost of purchases was demonstrated in the following manner. Janes showed that for the eight months ending June 30, 1965, sales totaled $707,992.47 and purchases totaled $180,019.09, being a cost-to-sales ratio of 24.3 per cent. Sales on September 30 totaled $849,863.87 and purchases to the same date totaled • $206,016.55, being a ratio of 24.2 per cent. Sales on October 31 totaled $893,884.50, but purchases had climbed to $280,023.02, for a cost-to-sales ratio of 31.3 per cent. By subtracting the September 30 total sales of $849,863.87 from the October 31 total of $893,884.50, and the total cost of purchases as of September 30 ($206,016.55) from the October 31 total ($280,023.02), we find that while sales increased only by $44,020.63 for October, the cost of purchases increased by $74,006.47. With respect to the October purchases, Janes testified (as abstracted by appellant):
“I have testified that the figures were kept monthly on each department. I have a breakdown on the cost allocated to the lnre department including outside purchases for October, 1965. That figure is $12,676.62. I am a dime off in my reconciliation, the outside invoices total $4,229.86. That’s outside purchases as evidenced by invoices. The lure molding charge for the production department to the lure department for the month of October was $5,816.00 even. The lure metalizing charge for metalizing the lures for the month of October was $2,694.57. There was an audit adjustment and I have got the adjustment in a box, but there was an additional $63.91 minus due to an audit adjustment. I didn’t have the .time last night to actually track it down. So we actually reduced the purchases by $63.91 and that should total with the 10-cent error that should total to $12,676.62. That is the figure that is reflected on the monthly financial statement of the lure department. With reference to Plaintiff’s Exhibit 15 that does not reflect all the outside purchases for the lure department. It could not because there is only $3,000.00 here and we entered $4,000.00. It could not, they have missed something.” (Emphasis supplied.)
The general ledger kept by Janes also showed an inventory for October 31 of $153,889.66 and a $44,049.82 adjustment which Janes stated was due to defective lures removed from inventory and placed in a warehouse. While Janes was sure of the inventory loss because of defects, yet both he and Mr. Perrin, appellant’s president, testified that everything shippable from the lures placed in the warehouse had been shipped by October 31.
Many other unexplained discrepancies appear in appellant’s calculation of income for the lure department. For instance, Janes testified that costs of supplies and expenses were allocated monthly. By the monthly records the total of the costs allocated to the lure department was $4,560.60, but in appellant’s subsequent tabulation of income for tbe lure department $9,178.30 had been allocated for these costs. In the matter of executive salary allocation, there was included in the lure department’s charges for 1965 the sum of $5,600 paid to Norman in 1965 as the bonus on his 1964 contract.
Furthermore, in connection with the net profits issue the record shows a number of accounting exhibits, which were referred to by the witnesses sometimes by exhibit number and sometimes as “that statement.” None of the exhibits was abstracted, even though it would not have been impracticable to do so.
Under this state of the record, we are unable to say that the trial court’s finding of net income, substantially upon the basis of appellant’s general ledger, is not supported by the evidence. Because of the many discrepancies, he could very well have disregarded the allocations of indirect expenses made by appellant’s accountants following Norman’s dismissal.
On the issue of unfair competition, the record is clear that the “Rebel” lure was copied from the “Rapalla” lure, a balsam wood product from Finland. The difference is that the “Rebel” lure is made of plastic and has some other refinements, such as floating depth and the manner and location of the hook attachments. There is no doubt that Norman’s minnow is a copy of the appellant’s. Furthermore, the testimony was that appellant had expended in excess of $100,000 advertising its minnow as the “Rebel Minnow” and the “Amazing Rebel Minnow.” Norman advertised his minnow as the “Reb-1” and as the “Amazing Minnow.” He used the same series number to identify the size of his minnows as did appellant.
Norman’s right to copy appellant’s “Rebel” minnow is guaranteed to him by the federal patent laws, see Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964). However, this does not mean that he can poach on appellant’s advertising in such manner as to palm off his product as that of appellant. Nor is it necessary for appellant to prove actual deception of customers before he is entitled to an injunction where that is the natural and probable result of Norman’s conduct, Robert Reiss & Co. v. Herman R. Reiss, Inc., 63 N. Y. S. 2d 786 (1946).
Exhibit J-l, Norman’s “Amazing Minnow,” is packaged in a blue and white box similar to that of appellant’s “Rebel” (Exhibit J-2). Where appellant has the word “Rebel” printed in white on the blue background with the Confederate flag in the top of the letter “R,” Norman has two crossed Confederate flags in similar red and white on the blue background. On the white portion of the box Norman has in red the words “Amazing Minnow.” Appellant, on the white portion of its box, has in red an outline of its lure. On the white ends of the boxes both exhibits have either stamped or printed thereon “103 Blue.” Thus it is seen that confusion is the natural and probable result of Norman’s conduct in the packaging of his product.
Consequently we hold that the trial court, in addition to its action with reference to appellant’s financial condition, should have enjoined Norman and Rebel Manufacturing Company, Inc., from using the words “rebel,” “Reb-1” or “amazing” in connection with the marketing of its minnows. This includes also the word “Rebel” in the Rebel Manufacturing Company, Inc. Nor do we think it was permissible for Norman to use the same series number to designate the color and sizes of his minnows — there is a considerable difference between the use of “9” and “99’r” in the case of James Heddon’s Sons v. Millsite Steel & Wire Works, (6 Cir., 1942) 128 F. 2d 6, and the exact duplication of the series here.
Appellant asked for damages but tbe abstract fails to show any damages to have been sustained. Therefore its claim for damages is denied.
The bonus judgment is affirmed. We are reversing and remanding this cause with directions to enter an injunction restraining Norman’s and Rebel Manufacturing Company’s unfair competition in accordance with this opinion. | [
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Tom Glaze, Justice.
This case involves the construction of Kerman Jackson’s will. Kerman Jackson died on March 13,1986, and was survived by four children, Janice Gabriel, Kerman Jackson, Fannie Mobley and Barbara Conover. Barbara Conover suffered from encephalitis (inflammation of the brain) and was dependent on her father before his death. Apparently, for this reason, a trust was provided for Barbara in the residuary clause of Jackson’s will. Barbara Conover was the sole beneficiary of this trust, and her bills were paid out of the trust money by her sister, Fannie Mobley, as trustee and the executrix of their father’s estate. Under this residuary provision, the residuary trust for Barbara was to terminate upon her death, and the proceeds were to be divided among the decedent’s other three children per stirpes. The residuary provision in the will stated specifically that none of the lawful descendants of Barbara Conover shall take any part of the estate or trust property.
A separate provision of the decedent’s will is in question in this appeal. That provision involved a bequest of Jackson’s stock in the Grady W. Jones Company, which was to be divided equally among his four children, per stirpes. On agreement of the four children, the stock was sold after Jackson’s death, and each child received $62,000, the distributions being made on September 29, 1988, February 1, 1989 and April 18, 1989. Barbara Conover’s distributive share was put into the Conover residuary trust.
While her father’s will was still being probated, Barbara Conover died intestate on July 18, 1989. Her daughter, Lisa McNabb, as administratrix of her mother’s estate, filed a complaint for turnover of assets against Fannie Mobley, as executrix of Jackson’s estate and against Barbara’s brother and two sisters individually. In denying McNabb’s claim, the probate court found that the intent of the testator, Jackson, was that the children of his daughter, Barbara Conover, not take under any part of his will.
On appeal, McNabb argues the stock was a specific legacy bequeathed to Jackson’s four children per stirpes and Barbara’s share from the sale of the stock should have been given directly to her and upon her death, to her estate. In other words, under the terms of the Jackson’s will, the stock proceeds were wrongly put in the Conover residuary trust. We agree. Therefore, we reverse and remand for Barbara’s distributive shares to be made pursuant to our holding.
First, we briefly dispose of the appellees’ argument that Barbara had waived her right to protest the distribution of the stock sale proceeds when her father’s will was being probated. The record shows otherwise. Barbara consented to the sale of the stock and signed a waiver of appearance and notice to the probate hearing, but there is no showing that she agreed or consented to her share of the stock sale proceeds being put in the residuary trust. Further, we do not find the fact that she used the money in the trust for her living expenses persuasive that she waived anything. Clearly, the testamentary trust was established for that purpose under the residuary clause in Jackson’s will, which contained the majority of his estate. And furthermore, there was no showing that Barbara’s living expenses came from the stock sale proceeds instead of the money placed in the trust by the residuary clause. Lastly, in support of their waiver argument, the appellees argue Barbara willingly gave the residuary trustee money she received from her father’s IRA to be put in the trust fund. We fail to see how that act showed Barbara consented to the stock sale proceeds being placed in the trust, especially when witnesses, including her sister, Janice, testified that she voiced anger to such placement.
Under Ark. Code Ann. § 28-53-110(d) (1987), a suit to recover property improperly distributed or money improperly paid is barred three years after the decedent’s death or two years after the time of distribution of the payment, whichever last occurs. Under the facts of this case, the last distribution of the stock sale proceeds was made on April 18,1989,and McN abb, as administrix of Barbara’s estate, filed her suit on October 11, 1989. Thus, we conclude that Barbara never waived her right to protest the improper distribution of the money from the stock sale and that McNabb’s action challenging that distribution was timely.
Now, we address the construction of the Jackson will, which is the gist of this appeal. We have stated that the paramount principle in the interpretation of wills is that the intention of the testator will govern. Motes/Henes Trust v. Motes, 297 Ark. 380, 761 S.W.2d 938 (1988). The intention of the testator is to be gathered from the four corners of the instrument, itself, considering the language used and giving meaning to all of its provisions, when possible to do so. Armstrong v. Butler, 262 Ark. 31, 552 S.W.2d 452 (1977). The will is to be liberally construed. Motes, 297 Ark. 380, 761 S.W.2d 938. Only when there is uncertainty as to the testator’s intentions from looking at the language used in the will, may the court read the language employed by the testator in the light of circumstances existing when the will was written. Martin v. Simmons, 250 Ark. 774, 467 S.W.2d 165 (1971). However, oral testimony is admissible only for the purpose of showing the meaning of the words used in the will when they are ambiguous, and not to show what the testator intended, as distinguished from his expressed words. Armstrong, 262 Ark. 31, 553 S.W.2d 453.
Keeping these rules of construction in mind, we must interpret the following language from Jackson’s will:
ARTICLE IV
BEQUESTS
B. If my wife, Georgia Helen Jackson, predeceases me then I give, devise and bequeath my stock in Grady W. Jones Co. to my children (Barbara Ann Conover, Little Rock, Arkansas; Janice Faye Gabriel, Sherwood, Arkansas; Kerman Eric Jackson, Jackson, Mississippi; and Fannie Lou Mobley, Pine Bluff, Arkansas) in equal shares per stirpes, provided however I direct that my son, Kerman Eric Jackson shall have the option for a period of one year after my death within which to purchase from three sisters of their decendants their shares of said stock and interest at the then book value of said shares of stock or interest.
C. If my wife... predeceases me then I give, devise and bequeath; one-fourth ('/<) of my gross estate (which has not been distributed in Article IV Paragraph B of this Will) to Janice Faye Gabriel; one-fourth ('/a) of my gross estate (which has not been distributed in Article IV Paragraph B of this Will) to Kerman Eric Jackson; one-fourth O/4) of my gross estate (which has not been distributed in Article IV Paragraph B of this will) to Fannie Lou Mobley; and one-fourth O/4) in trust, to the trustee named in Article II of this Will, for the uses and purposes hereinafter set forth: . . .
* * *
5. If Barbara Ann Conover is deceased prior to the termination of this Trust, then the Trustee shall distribute the principal and any accumulated income thereon to my other children ... per stirpes. In making this distribution it is my intent that none of the lawful descendants of Barbara Ann Conover shall at any time take any part of my estate or the trust property or income thereon.
In reviewing the above provisions, we believe that the intent of the testator is clear. The testator made a specific legacy of his shares of stock to his children in paragraph B of the will. A specific legacy or devise is a gift by will of a specific article or part of a testator’s estate which is identified and distinguished from all other parts of the same kind, and which may be satisfied only by delivery of the particular thing. See Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925). Since the testator’s wife predeceased him, the bequest in paragraph B states that the stock goes to his four children in equal shares per stirpes. Further, an option was given to his son for a year to purchase from his sisters or their descendants their shares of the stock. Clearly from this language, the testator intended Barbara to receive her one-fourth interest in the stock, which would pass to her children upon her death.
Such an interpretation is not contrary to other provisions contained in the residuary clause, paragraph C, of Jackson’s will. In those provisions, the testator clearly expressed his desire that one-fourth of his gross estate to be put into trust to care for his daughter Barbara during her lifetime. After her death, the money was not to go to her children but was instead to be divided among her brother and sisters per stirpes. The testator again made his intent clear by stating. “In making this distribution it is my intent that none of the lawful descendants of Barbara Conover shall at any time take any part of my estate or the trust property or income thereon.” The words “this distribution” refer only to the distribution of his gross estate as provided by the residuary clause. The specific bequest of the stock is not mentioned, and in fact in the language describing the interest to be transferred to the testator’s other children, the following qualifying language is used, “which has not been distributed in Article IV Paragraph B of this Will.” In sum, from our reading of the four corners of the will, the testator intended that the specific bequest of stock be treated differently from his residuary clause. If this were not the case, then the specific bequest provision in the will would have been meaningless.
We note that oral testimony was heard by the probate judge concerning the intent of the testator. However, because the terms of the will are not ambiguous, it was error for the trial court to consider extrinsic evidence when interpreting the will. However, even if we were to agree that the will was ambiguous, we believe the testimony heard by the probate judge, especially from attorney, William Marshall, who wrote the will, clearly supports our construction of language and provisions contained in the Jackson will.
For the reasons stated above, we reverse and remand. | [
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Lyle Brown, Justice.
Suit was filed by J. E. Brooks, plaintiff-appellant, against Renner and Company Inc., a Fayetteville insurance agency, and Commercial Standard Insurance Co., with whom Renner placed a substantial part of its business. The sole issue below was whether a Commercial Standard auto liability policy issued by Renner to J. E. Brooks on June 3, 1964, was in effect on November 2, 1964. On motion for summary judgment the trial court ruled against Brooks.
Brooks resided in Fayetteville continuously for many years. For some ten years he had insured one or more automobiles through the Renner agency. A policy was written annually; however, it carried a four months expiration date. Prior to the stated expiration date, Renner would mail a four months renewal statement and a premium bill. It is Brooks’ contention that because of the described business practices, there existed an implied agreement between the parties which bound Renner, in the absence of notification to the contrary, to renew the contract.
In 1963, Brooks moved to Little Rock but maintained his auto liability coverage with Renner. The expiration date on the involved policy was October 3, 1964.
Under date of September 21, 1964, Renner addressed this letter to Brooks at his office in Little Rock:
“Your coverage on your cars under the above policy will expire October 3, 1964.
“In your present situation, it would be best that you secure coverage in Little Rock. You will be able to get better service from an agent there closer to you.
“When you get your other coverage effective 10-3-64, be sure the agent furnishes evidence of the insurance to G-MAC on the 4 Dr. Hardtop and the Bank of Arkansas on the Convertible.
“We greatly appreciate having written this coverage for so many years.”
The letter to Brooks was received in due course. He is not sure just when he read the letter; it was his general recollection that it was approximately one week after receipt of it. Brooks did not reply to Renner’s letter.
Did Renner’s letter to Brooks, dated September 21, 1964, constitute notice that the policy would not be renewed? Any doubts and inferences about the content of the letter in this respect must be resolved in Brooks’ favor. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963).
On a motion for summary judgment this court is authorized to ascertain the plain and ordinary meaning of a written instrument. This is permitted only after any doubts are resolved in favor of the party moved against. If doubt exists and makes the meaning ambiguous, there then arises an issue of fact to be litigated. Elbow Lake Coop. Grain Co. v. Commodity Credit Corp., 251 F. 2d 633 (1958).
Tested by the stated principles we think there is but one logical conclusion to he reached. It plainly and simply gave notice to Brooks that his policy was not being renewed. It is devoid of any alternative. For example, the letter did not point up the inconvenience of his insurance being written in a city 200 miles distant from his city of residence, and, alternatively, offer to continue writing it if Brooks insisted. Renner gave him the date of expiration. Brooks was told it would be best to secure the coverage in Little Rock. He was advised to notify GMAC and the Bank of Arkansas of the change. Appreciation was expressed for having had Brooks as a customer.. This was unequivocally a letter of finale.
Appellant attaches significance to the absence of such a bold statement as “I am not going to continue coverage.” That argument is not convincing. American National Insurance Co. v. Hamilton, 192 Ark. 765, 94 S. W. 2d 710 (1936). There the court held an instructed verdict for the Company should have been granted. Our court said that a notice which reasonably appraises the insured that the insurer is exercising its right not to renew is sufficient. We think Renner’s notice meets the reasonableness test.
Finally, appellant argues that if the non-renewal letter of September 21 is interpreted in light of extraneous circumstances, it would be obvious to a jury that the letter was ambiguous; here it is pointed up that Mr. Renner and Brooks were friends and Brooks was a longstanding customer. For those reasons, appellant Brooks concludes,i> rather inarticulately, that. Renner was impliedly obligated to take care of Brooks’ insurance needs. We recognize that service agencies are expected to, and usually do, take an interest in the welfare of their regular customers. Ofttimes they render courtesies over and above the obligations created by contracts. That is -simply good business.
Concerning appellant Brooks’ final argument, we lave reviewed the record and conclude it is without mer it. To the contrary, the record refutes it. The only variance in the contractual relationship was that Renner ac-commodated Brooks by not requiring payment of premium in advance. He carried Brooks on open account and the last premium due in June 1964, was not paid until the following November. In all other respects their transactions were handled in accordance with sound business practices. The same procedure for renewal was followed for some ten years. That was Brooks’ testimony. Every four months Renner would mail a renewal certificate and render a statement. That was done each time in advance of the expiration date. Ten days in advance of the October renewal date the usual renewal notice and billing were not mailed. In lieu of those, Renner wrote a letter reminding Brooks of the expiration date, advising him to obtain his insurance in Little Rock, cautioning him to notify the automobile lienhold-ers of the change, and thanking him for having “written this coverage for so many years.”
If, as now contended by appellant, neither of the parties treated this letter as a non-renewal notice, why did Brooks wait until November 5 to reply? That was three days after one of his automobiles had been involved in an accident in Little Rock.
Affirmed. | [
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Carleton Harris, Chief Justice.
This litigation is quite complicated. On February 1, 1960, Cleve Zachary and wife went to the store of Abe J. Davidson in Marvell, Arkansas, and executed a promissory note in the amount of $22,794.04 to Davidson, with interest at the rate of 8% per annum. The purpose of the note was to satisfy an indebtedness due Davidson by Ellis McKissic and wife, the McKissic indebtedness having accumulated over a period of several years.
In March, 1957, McKissic had given a real estate deed of trust to Davidson to secure a $5,000.00 note, this debt being due in November 1957; in October, 1957, a note executed by McKissic in favor of Helena Federal Savings and Loan Association, had been purchased by Davidson for $13,240.15, this note being due in November, 1957. In December, 1957, McKissic executed a note to Davidson in the amount of $18,905.45, with interest at the rate of 10%, due February 28,1958. This note was endorsed by Zachary. By the end of 1959, only a minimal amount had been paid, and, after the adding of interest, McKissic’s balance was $20,722.05. In January, I960, an additional amount of $2,072.00 was added, making a grand total of $22,794.05. The recitation in this paragraph relates the facts leading to the signing of the note from Zachary to Davidson in February, 1960.
On the same day, in Davidson’s office, McKissic and wife executed a quitclaim deed to Zachary for 160 acres of land, being McKissic’s farm. Zachary then executed an agreement to reconvey the lands to McKissic upon the repayment by the latter of the indebtedness, plus interest. The agreement also provided for McKissic to pay all taxes' and to repay any further amounts loaned by Zachary, together with interest. Also, on this same date, McKissic and wife acknowledged that the $22,794.04 was the correct amount that they owed, and they signed a statement recognizing that they were indebted to Zachary in that amount. In January, 1963, Zachary made the final payment to Davidson on the note (that he had signed in behalf of McKissic), the total amount including interest being $27,505.18) Shortly thereafter, Zachary notified McKissic to quit the premises; however, McKissic ignored the notice and stayed on.
In September, 1963, Zachary executed an “Offer and Acceptance” with appellant, Jerry L. Carter, for sale of the McKissic lands for the sum of $26,000.00, the sale to be closed by December 1, 1963, and, since Mc-Kissic remained on the property, Zachary instituted an, unlawful detainer action against McKissic in January, 1964. In August, 1964, Carter was' granted leave ;by the court to file an intervention, and he sought to require Zachary and wife to specifically perform the agreement to sell him the McKissic lands, and asked in the alternative, that he be awarded damages against Zachary. Zachary answered the intervention with a general denial. In March, 1965, McKissic amended his complaint, asserting that the deed had been given as a mortgage, and further alleging that Zachary was guilty of usury. In May , McKissic instituted a cross-complaint against Davidson, contending that the latter had made usurious charges. Davidson answered with a general denial, and, the cause having been transferred to equity, the case w'as heard by the Chancery Court in November, 1965. After hearing the evidence, the court found:
1. That McKissic had failed to prove the allegations of usury against Davidson, and dismissed that complaint.
2. The intervention of Carter was dismissed.
3. The quitclaim deed from McKissic to Zachary, together with the agreement to reconvey from Zachary to McKissic, was intended by all parties in interest to he:
“a mortgage with right of redemption given to _se-cure a debt owed by the Defendant to the Plaintiff, Cleve Zachary, in the sum of $22,794.05, which debt bore interest at the rate of 10% per annum until paid; that said lien was also given to secure any and all other advances made by Cleve Zachary to Ellis McKissic during the period of redemption; that said period of redemption had not expired at the commencement of this action.
“5. That up to and including January 14th, 1963, Cleve Zachary advanced additional sums to the Defendant in such an amount that said indebtedness aggregated on that date, the total sum of $27,505.18; that same is now in default; that the Defendant is indebted to the Plaintiff for his principal and interest in the aggregate sum up to this date in the aggregate sum of $37,516.66.
“6. The Court further finds that Cleve Zachary, as Mortgagee in possession of the properties, has paid all taxes and assessments due on said lands for the years 1962, 1963 and 1964, in the total sum of $758.24, and has been compelled to pay premiums of insurance upon the improvements thereon in the sum of $216.58.”
The court then made a finding that McKissic was entitled to a credit for the reasonable rental value of the lands, which was f ound to be $2,040.00 per year, or a total amount of $8,120.00, and was likewise entitled to a further credit of $834.68. Judgment was thereupon entered for Zachary against McKissic in the amount of $29,536.80, and the court directed that if this amount, together with costs, was not paid within 60 days, the property should be sold at public sale. From the decree so entered, Carter appeals from the dismissal of his intervention against Zachary, and McKissic appeals from that portion of the court’s order holding “that there was no usury in any of the transactions involved in said cause and denying to the defendant, Ellis McKissic, any relief either against the plaintiff, Cleve Zachary, or the third-party defendant, Abe J. Davidson.”
We proceed to a discussion of each of these contentions.
1. Was the February, 1960, deed from the McKissics to the Zacharys intended as a mortgage f The Zach-arys have not appealed from the court’s decision holding that the deed, in effect, was a mortgage, and this question is appealed only by Carter, who, of course, cannot prevail in his prayer for specific performance, unless the Zacharys owned the property.
Carter asserts that the deed given on February 1, 1960, conveyed the lands to Zachary, and that McKissic did not comply with the agreement to reconvey, and thus lost his right to claim the property. Evidence was offered by a witness, James Suitt, that McKissic had recognized Zachary’s title, and had so advised Suitt when applying for a production loan. No point would be served in detailing the testimony of the various witnesses, for we are of the opinion that the testimony of Zachary and his wife justified the Chancellor in reaching his conclusion. It is well established that the question of whether a deed to realty (when absolute on its face, and construed together with a separate agreement to repurchase) amounts to a mortgage, or a conditional sale, is to be determined by the intention of the parties. Ehrlich v. Castleberry, 227 Ark. 426, 299 S. W. 2d 38. In Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240, we said:
“It is unquestionably within the power of two individuals, capable of acting for themselves, to make a contract for the purchase and sal© of land, with a reservation to the vendor of a right to repurchase the property at a fixed price and at a specific time. If such transaction is security for a debt, then it is a mortgage, otherwise, it is a conditional sale. *** ”
The examination of Zachary during the trial reflects the following:
“Q. At the time that you all went down there to have the papers fixed, did you go down there with the intention of getting a deed for the property that day?
A. No, sir, I didn’t go down there with intentions of getting* a deed then.”
Zachary stated that the deed was taken for security.; Annie Zachary testified likewise. We think it is clear that the deed was intended as a mortgage.
2. Was Carter entitled to specific performance, or m the alternative, to damages from Zachary/ The testimony reflects that on September 5, 1963, Zachary, acting on advice of counsel, agreed to convey merchantable title to Carter for $26,000.00, subject to good title, and Carter gave Zachary a check in the amount of $500.00 as earnest money. There is evidence that Zachary thought, and with good reason, that McKissic had abandoned his claim to the farm. Although we feel that the record supports the view that Zachary acted in good faith in offering to sell the lands to C'arter, there is no point in reviewing the testimony, since we do not decide this point on that premise. Nonetheless, we do not think that Carter is entitled to damages. Appellant’s claim in this respect is based on the difference in the contract price and the market value of the land; under the contract, he would have purchased the lands for $26,000.00, the agreemnt reciting that the transaction would be closed by December 1, 1963. The only evidence offered by appellant as to damages was his owh testimony, and this was not at all forceful. When asked by his attorney as to the fair market value of the land on December 1, 1963, Carter replied, “I don’t really know [our emphasis]. I was offered $32,000.00 for it prior to that and I didn’t take it.” It will be noted that appellant admitted that he did not know the value of the land on December 1, 1963, and the purported purchasers were not called upon to testify. The testimony about the offer of $32,000.00, if competent otherwise, certainly was hearsay evidence. This was all the evidence relative to damages, and could hardly support such an award. For that matter, the testimony of Carter, since appellant is an interested party, does not stand under the law as uncontradicted, and the court was not required to accept the testimony as correct. McDonald v. The Olla State Bank, 192 Ark. 603, 93 S. W. 2d 325. Appellant apparently recognizes that his proof is inadequate, for he closes his brief by stating that if specific performance of the contract is now impossible, he “is entitled to damages for breach of the contract, and that the case must be remanded to Chancery Court in order that those damages may be determined. ” As a rule, Chancery cases are developed completely on trial, and a final determination is made in this court on the record presented. We rarely remand a case simply to develop proof on one phase, where that proof could have been offered at the original trial.
3. Is McKissic entitled to relief from Ztachary because of usury 1 McKissic contends that usurious interest was charged by Davidson, and that Zachary, as a. volunteer, in settling this indebtedness, paid these usurious charges without first ascertaining the accuracy of Me-Kissic’s account with Davidson. It is admitted that Zachary did not know of any usurious or improper charge, but it is contended that he made no inquiry of McKissic as to the correct amount, and therefore, Zachary is not entitled to reimbursement.
In the first place, we think the evidence is heavily against this appellant’s contention. One clearly gains the impression from reading this record that Zachary assumed this indebtedness purely as an act of friendship .to McKissic, and the evidence reflects that Zachary was entirely willing, before the suit was filed, for McKissic to pay the indebtedness assumed without interest being paid to the former. It is difficult to visualize any person assuming a debt of another of nearly $23,000.00 (aside from the interest that would have to be paid) without first being requested to do so, and further, without ascertaining from that person the proper amount of the debt. Such a transaction, though possible, is contrary to human experience. We think logic supports the testimony offered that these parties met at the office of Davidson, and entered into the transaction. Certainly, the record discloses a written acknowledgment by McKissic that he owed $22,794.04, the amount for which Zachary executed the note to Davidson. In Lowe v. Walker, 77 Ark. 103, 91 S. W. 22, Walker made a loan to Lowe to enable the latter to pay off a debt due to a Mrs. Bice. Thereafter, Lowe raised the issue of usury. Walker testified that he had no notice of the usury though Lowe testified to the contrary. The Chancellor found for Walker, and Lowe appealed. In affirming the Chancellor, this court, through Justice McCulloch, said:
“Appellee was not affected by usury in the contract between Lowe and Mrs. Rice. Conceding that the debt was tainted with usury, Lowe elected to pay it, and procured its payment by appellee. He cannot defeat his liability to appellee for the money because the original debt to Mrs. Rice which it extinguished was tainted with usury. ’ ’
There is yet another complete defense, but it will be discussed under the next heading.
4. Is McKissic entitled to relief from Davidson because of usury % Let it be remembered that the burden of proving usury is on the one who alleges it. Let it further be remembered that McKissic never raised any claim of usury until March, 1965, when, in an amendment to his answer, he alleged usury against Zachary, and subsequently in May, the same contention was raised against Davidson in a third party complaint. Without discussing the testimony on this point, some of which was uncertain and confusing, it is sufficient to state that any usurious transactions are barred by the statute of limitations. The last transaction occurred on February 1, 1960, when Zachary settled McKissic’s indebtedness by executing the note to Davidson. The last note given by McKissic himself to Davidson occurred on December 10, 1957, when he executed his note in the amount of $18,905.45. McKissic’s contention that the statute of limitations does not apply is based on his assertion that fraud was practiced upon him, but there is no proof of this allegation in the record. There is no evidence of concealment, or fraudulent acts. In fact, one item which is alleged to constitute usury is the amount of $2,072.00, which was added to the account in January of 1960, and which clearly appears in writing for anyone to see. McKissic stated that he never did see any of the instruments or papers, and said that he did not know he had signed a quitclaim deed; that Da vidson kept these papers for him, but there is no evidence that McKissic even asked to see any instruments or the account, or that he made any inquiry whatsoever. In Williams v. Purdy, 223 Ark. 275, 265 S. W. 2d 534, we stated that mere ignorance of one’s rights does not prevent the operation of the statute of limitations; in the event there are affirmative and fraudulent acts of concealment, the statute commences to run when the fraud is discovered. McKissic had been dealing with Davidson for years, and part of his claim of usury dates back for a long period of time. Yet, no contention along this line was made until May, 1965, more than fifteen months after Zachary had instituted suit to obtain possession of the lands in question.
On the whole case, we are unable to say that the Chancellor’s findings were against the preponderance of the evidence.
Affirmed.
Dhe figure “.04” is used at times, while “.0'5” is also used.
There is no explanation of why these various pleadings were filed so long after the original suit was commenced.
The check was never cashed, and was returned to this appellant.
The court originally sustained objection to the testimony concerning an offer, but subsequently permitted it. Later, Carter testified that the property had increased in value by March of 1964 to $35,000.00.
Carter’s pleading sought $10,000.00 damages.
Ark .Stat. Ann. § 37-206 (Repl. 1962) lists the actions which must be brought in three years, and Ark. Stat. Ann. § 37-209 (Repl. 1962) sets out those that must be commenced within five years after the cause of action shall accrue. It is immaterial here whether the three year statute or the five year statute is applicable.
McKissic also testified that he did not know that Zachary had executed the note assuming his (McKissic’s) indebtedness, and did not know that Zachary had ever endorsed his note. | [
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Lyle Brown, Justice.
This is a wrongful death case brought by appellant, Martha Fountain, Administratrix of the Estate of Johnnie 0. Thompson, deceased. Ap-pellees, Chicago, Rock Island & Pacific Railway Company, and its employee, successfully moved to strike all claims for pecuniary benefits and mental anguish. Thompson was survived by his mother and several brothers and sisters. The principal ruling of the trial court here attacked is that the death of the mother, which shortly followed the fatal accident to her son, extinguished any possible recovery for mental anguish.
Johnnie 0. Thompson, 54 and single, was employed by Magnet Cove Barium Corporation. While unloading ore from a Rock Island car, he was struck by a metal crank attached to the car and alleged to be defective. The injury proved fatal. Suit was brought by the ad-ministratrix. The elements of damage alleged were: (1) pecuniary benefits for Thompson’s dependent mother and sister, ages 87 and 62 years, who lived in his household; (2) mental anguish suffered by the mother and sister, as well as other brothers and sisters not members of his household; and (3) expenditures by the estate.
The defendants moved to strike those elements of recovery described in (1) and (2) and alleged: (a) at the time of Thompson’s death, his mother was the only “heir and next of kin” within the meaning of the wrongful death statute; (b) that shortly after the fatal accident and before suit was filed, the mother died and her cause of action abated; (c) that Thompson did not stand in loco parentis to the mother and sister of his household; and (d) that the brothers and sisters were not entitled to recover for mental anguish. The trial court sustained the motion to strike and left only the claim for the benefit of the estate to be litigated.
First, we dispose of the contention of the admin-istratrix that pecuniary loss to, and mental anguish of, the mother are proper elements of recovery. Those rights abated with the death of the mother. Jenkins, Admr. v. Midland Valley R. R., 134 Ark. 1, 203 S. W. 1 (1918).
We next consider that point of the administratrix which, in substance, asks us to overrule, in part, Peugh v. Oliger, Admx., 233 Ark. 281, 345 S. W. 2d 610 (1961). With reference to recovery for mental anguish, Peugh holds recovery to be limited to the enumerated relatives who are also heirs at law.
Decisions from other jurisdictions are of no aid because their statutes allowing mental anguish are distinctly different from our Act 255 of 1957 (Ark. Stat. Ann. §§ 27-906-10 [Repl. 1962]). The significant difference is that, for the most part, other statutes list the relatives in classes, with the priority of each class established. We do point out that our Act 255 was originally drafted by a committee of the Arkansas Bar Association and was adopted with some modification by the Legislature. There was available to that committee the statutes of those states which then allowed recovery for mental anguish. Nevertheless, the bar committee elected to place the beneficiaries in a single group. That fact is of some significance in determining legislative intent.
In analyzing Act 255 we find these three points persuasive :
(1) The Legislature listed all beneficiaries in a single group, specifying no priority of one beneficiary over the other.;
(2) The interpretation in Peugh v. Oliger does not allow all the named beneficiaries to recover for their mental anguish. That decision did treat a foster daughter as an heir at law for purposes of the mental anguish statute and permit her to recover. But in placing that daughter in the category of next of him, this court reversed a modest recovery for mental anguish awarded to a sister of the deceased. It was held that both could not recover. Mrs. Drake, the 71-year-old surviving sis ter of the deceased, according to the evidence, was so distraught that she required constant attention for a considerable time after the accident which was fatal to her only living sister. They had been close neighbors for forty years and saw each other almost daily. When they moved a short distance apart they saw each other weekly and talked on the telephone. The foster daughter had been married since 1934 and for several years immediately prior to her foster mother’s death the foster daughter lived 165 miles distant. We have no quarrel with the allowance to the foster daughter, although that recovery was permitted by a novel construction of the statute. However, we think an interpretation of Act 255 Avhich would deny recovery to Mrs. Drake is contrary to the intent of the Legislature. Her mental anguish could well have been as great, or greater, than that of the foster daughter.
The evidentiary situation just recited, as between Mrs. Drake and the foster daughter, leads us to a conclusion so well stated in 18 Ark. L. R. 166 (1964): “This provision has been narrowly construed by the Arkansas Supreme Court, however, so as to effectively prevent recovery for mental suffering in some cases. As a result, the mental anguish provision of the statute loses much of its vitality .... A more liberal approach to the wording of the statute would be consistent with the expressions of the legislature.”
(3) Finally, we are persuaded by the reasoning in the dissenting opinion. in Peugh and we hereby adopt that opinion bv reference.
Reversed and remanded.
Harris, C. J., and Fogleman, J., dissent. | [
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George Rose Smith, Justice.
Two of the appellees, Joyce and Robert Meredith, were injured in a traffic accident involving their mother’s car, in which they were riding, and a car being driven by the appellant. This action for personal injuries and property damage was brought by Joyce, by Mrs. Meredith as the next friend of Robert, a minor, and by Mrs. Meredith in her own right. The jury returned verdicts of $6,000 for Joyce, $3,500 for Robert, and $1,500 for Mrs. Meredith. For 'reversal the appellant questions the court’s instructions to the jury and the amount of the awards.
We think theccourt erred in instructing the jury that Joyce was entitled to recover the present value of any earnings reasonably certain to be lost in the future. AMI 2201 and 2206. At the time of the accident Joyce was working in Little Rock at a salary of $200 a month. Her injuries disabled her for several months. At the time of the trial, almost two years after the collision, she was employed at a salary of $250 a month, with guaranteed raises in amounts not shown by the testimony.
The trouble is that although there is proof that Joyce may have suffered a loss of earning capacity, AMI 2207, there is no evidence to assist the jury in fixing the amount, in dollars and cents, of earnings reasonably certain to be lost in the future. Dr. Murphy esti: mated that Joyce’s cervical spinal injuries had resulted in a permanent disability of 5 percent to the body as a whole. Joyce had been back at work for more than a year before the trial. She testified that she experienced dif- ficiilty in working, in that “about the middle of the day my neck will start hurting and I’ll have to stop my work and rest for a period of time in order that it would stop hurting, and I can go hack to work. ’ ’ Her statement that her employer understood her condition doubtless implied that he was willing to make allowances for her inability to work steadily all day.
Where there is proof that the plaintiff, at the time of the trial, is still unable to work or is unable to earn as much as he did before he was injured, an instruction upon the loss of future earnings is proper. Holland v. Ratliff, 238 Ark. 819, 384 S. W. 2d 950 (1964); Abraham v. Jones, 228 Ark. 717, 310 S. W. 2d 488 (1958). Here that essential proof is absent. There is no indication that Joyce missed even a day’s work for some fourteen months immediately preceding the trial. No witness testified that it was either probable or possible that she would be unable to continue working regularly. Hence the jury had no basis, except pure guesswork, for estimating earnings reasonably certain to be lost in the future. The judgment in favor of Joyce must be reversed.
We find no error in the court’s refusal to give AMI 2214 in its entirety. That instruction would have told the jury that it is an injured person’s duty (a) to determine whether medical treatment is needed, (b) to obtain medical treatment, and (c) to follow the instructions of his physician. There was some testimony pertinent to element (c): The orthopedists who testified thought that both Joyce and Robert should have followed their instructions to the letter instead of going to a chiropractor for treatment. But even with respect to that element the proof doqs not disclose to what extent their failure to follow instructions resulted in an enhancement of their damages. Moreover, there is no proof touching upon elements (a) and (b) in the requested instruction. In the circumstances the court correctly refused to give the charge.
The verdicts in favor of Robert and his mother were not excessive. Robert suffered a permanent disability of at least 5 percent to the body as a whole. At the time of the trial he was still suffering pain, almost two years after the accident. He attributed to the accident a blurring of his eyesight that seriously interfered with his studies and with his efforts to become an architectural engineer. Far from being excessive, Robert’s award of $3,500 seems to us to be rather modest.
With respect to Mrs. Meredith the state of the record is rather odd. She sued for medical expenses incurred by her for both children and for damages to her car. It was stipulated that Robert’s medical expenses amounted to $710.27, that Joyce’s amounted to $682.55and that the damage to the car was $600.00. The court, however, included the children’s medical expenses as items of damage in AMI 2201 — which was properly given twice, once for Joyce and once for Robert.
There was no instruction whatever with respect to Mrs. Meredith’s measure of damages, either for the' medical expenses or for the car. Nevertheless the court apparently gave the jury a separate form of verdict for each of the three plaintiffs. There was no objection by the defendant either to the court’s failure to give AMl'i 2201 with regard to Mrs. Meredith’s damages or to thej submission of a form of verdict in her favor. In view; of these facts we cannot say that the appellant suffi-j ciently preserved his record to be in a position to ques-j tion the amount of Mrs. Meredith’s recovery. We should add, however, that upon the merits of this issue we not consider the verdict to be excessive.
Affirmed as to Robert and his mother; reversed as to Joyce.
Byrd, J., dissents as to the reversal. | [
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J. Feed JoNes, Justice.
Billy Ray Hobbs and Harold Anderson were charged on information filed by the prosecuting attorney and were found guilty by a jury in the Sebastian County Circuit Court of the- crimes of kidnapping and assault with intent to rob one Claud Knight. They were sentenced to five years in the penitentiary on the assault charges and to fifteen years on the kidnapping charges and they have appealed relying on thé following points for reversal:
“The trial court erred in refusing to grant the appellants’ Petition for a severance.
“The trial court erred in denying the appellants’ Motion for a new trial on the ground that the verdict and judgment were contrary to the law and evidence in this case.
‘ ‘The trial court erred in overruling appellants ’ objections to cross-examination of appellant Billy Ray Hobbs as to alleged particular wrongful acts.
“The trial court abused its discretion in refusing to reopen the case on behalf of appellants after the jury had been instructed but before they had retired to commence their deliberations.”
The facts, under the testimony produced by the state, are briefly these: About 8:00 p.m. on March 15,-1967, Claud Knight left the 400 Bar in Fort Smith where he had been drinking some beer. When he left the bar, he encountered the appellants just outside the bar and they followed him down the street. Knight became suspicious of the appellants and went into McCartney’s Cafe to avoid them. The appellants also went into the cafe and when Knight left the cafe, appellants followed him and forced him into an automobile by brandishing a pistol and by pushing and shoving him into the automobile. Anderson drove the automobile across the Arkansas River bridge toward Oklahoma, while Hobbs sat in the back -seat with Knight. While the automobile was on the bridge, Knight was trying to get out of the automobile and Hobbs severely beat Knight knocking out one or two of his teeth. Appellants took Knight into a wooded area on the Oklahoma side of the Arkansas River, robbed him of his money, glasses, pocket knife and watch, and then drove off and left him. Knight made his way to a beer tavern on the highway where the constable of Sequoyah County was called and the constable drove Knight to the police station in Fort Smith. While Knight was being questioned at the police station, the appellants were brought to the station as suspects in connection with a filling station hold up and Knight readily recognized and identified them as the ones who had kidnapped, assaulted and robbed him.
The officers found Knight’s glasses and driver’s license in a station wagon described by Knight, and claimed by the father of appellant Anderson. They also found a pistol under the porch at Hobbs’ home, and also found one of Hobbs’ shirts bearing human blood stains in Hobbs’ house where he lived with his mother.
Hobbs testified at the trial in his own defense. He admitted that he and Anderson took Knight into Oklahoma, but contended that it was at Knight’s request. He testified that Knight and one Frank Gibson were in company with a woman by the name of Romana Gilliam; that Knight offered to purchase some beer for the appellants if they would drive Knight, Gibson and the Gilliam woman -over into Oklahoma; that the beer tavern in Oklahoma was closed and that by prearrangement, the appellants drove onto a side road and walked away from the automobile leaving Knight and Gibson in the automobile with the Gilliam woman; that somehow Gibson obtained possession of Knight’s billfold and that when Knight attempted to retrieve his billfold from Gibson, a fight ensued between Knight and Gibson; that Gibson knocked Knight down into the ditch, and that he and Anderson helped Knight to his feet but that when Knight started to get back into the automobile, lie was shoved back into the ditch and they drove back to Fort Smith leaving Knight in the ditch. Hobbs explained that the pistol found under his front porch belonged to Gibson and that he had been unable to locate Gibson or the Gilliam woman as witnesses.
As to the first point urged by the appellants, Ark. Stat. Ann. § 43-1802 (Repl. 1964) provides that when two or more defendants are jointly indicted “* * * for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court.” The appellants have shown no abuse of discretion in the trial court’s refusal to grant appellants’ petition for severance in this case.
We find appellants’ second point without merit. The jury evidently believed Knight’s version of what took place on the night of March 15, and we hold that the evidence was amply sufficient to sustain the convictions.
As to the third point, the appellant, Hobbs, was asked on cross-examination if he and Anderson had not robbed Roy Williams at a filling station after they had robbed Knight. The defense counsel objected to the question and the court admonished the jury as follows:
With this admonition, the trial court did not err in overruling appellants’ objections to this line of questioning on cross-examination. This same point was very recently before us on another appeal from the Sebastian County Circuit Court in the case of Wright v. State, 243 Ark. 221, 419 S. W. 2d 320, and in that case we said:
“This witness is on cross-examination and while he is not on trial for any other robbery the prosecution has the right to ask him questions going to his credibility as a witness so you may better pass upon his credibility simply as a witness. Whether you believe him or disbelieve him on the story that he’s told and the merits of the case for which he’s being tried. Objections overruled.
# # #
“The jury will understand now that this witness is not on trial for robbery of these other acts that he is being questioned on. The court permitting these questions to be asked simply to go to his credibility as a witness.”
“There are numerous decisions by this Court holding, in effect, that when a defendant takes the witness stand (as he did here) he is subject to the same rules of evidence and impeachment as other witnesses on cross-examination to test his credibility. Jordan v. State, 141 Ark. 504, 217 S. W. 788; Kyles v. State, 143 Ark. 419, 222 S. W. 458; Hays v. State, 219 Ark. 301, 241 S. W. 2d 266, and Edens v. State, 235 Ark. 178, 359 S. W. 2d 432.”
We hold that the trial court did not err in overruling appellants’ objections under point number three.
We find' no merit in the fourth point relied on by appellants. After the case was fully tried and the State and appellants had rested, and after the jury had received its instructions, the court directed the jury to retire and consider its verdict. At this point appellants ’ counsel requested the court to reopen the case for the introduction of 'testimony of a witness, who apparently had just been procured' by appellant Anderson’s father and brought into the court room for the purpose of offering testimony to corroborate appellant Hobbs’ testimony, that Knight, Gibson and the Gilliam woman got into the automobile with the appellants. The court refused to reopen the case for the introduction of this additional testimony. Appellants’ counsel objected to the court’s refusal and the objection was carried forward into appellants ’ motion for a new trial where it is asserted that the testimony the witness would have given constituted newly discovered evidence.
The reopening of a case for the taking of further testimony after the testimony on both sides has been concluded'and the cause has been submitted to the jury, is a matter within the sound discretion of the trial court, and this court will not reverse the ruling of the trial court unless it appears that the trial court, in making such ruling, has abused its discretion. Whittaker v. State, 173 Ark. 1172, 294 S. W. 397. We find no such abuse of discretion in the case at bar. Furthermore, the appellants did not exercise any degree of diligence at all in the production of the proffered evidence at the trial. No subpoena had been issued for the witness or served on him, and the record' is silent as to how long the proposed witness had been in the court room. Appellants’ own counsel had not even been advised of the name of the witness and had only been advised that ap-' pellant Anderson’s father had walked ten miles to get the witness. Certainly a subpoena could have beep. obT tained for this witness and the sheriff sent on his way to serve it in less time than it took appellant’s father to walk ten miles, had appellants advised their counsel that the presence of the witness was desired. Before the defense rested, the witness could have been called to testify if in the court room, or a motion for recess or continuance made if he was not, had appellants and their counsel deemed the testimony of the witness important to their case.
Finding no error in the trial of these cases, the judgments of the trial court are affirmed.
Affirmed. | [
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George Rose Smith, Justice.
This is a suit by the appellees, Carrigan, his wife, and their mortgagee, to enjoin the appellants from levying execution upon Lot 23 of Chicot Terrace Addition to Little Rock, which is owned by the Carrigans. The chancellor granted the injunction, holding that the deficiency judgment under which the appellants were about to proceed did not constitute a lien against Lot 23. That is the issue here.
All the facts are stipulated. Lot 23 was formerly owned by Roy Stillman. On December 9, 1965, Stillman and Mr. and Mrs. T. A. Hale executed a written offer-and-acceptance agreement by which Stillman agreed to sell the property to the Hales. On March 23, 1966, Pulaski Federal obtained a personal judgment against Stillman and his wife in a foreclosure suit involving other property. That property was sold pursuant to the decree on May 5, 1966, leaving a deficiency judgment for $2,644.07, which was later assigned to the other appellant, Southern Mortgage Insurance Corporation.
On April 20, in the interval between the entry of the foreclosure decree and the entry of the deficiency judgment, Stillman performed his contract with the Hales by conveying Lot 23 to them by warranty deed. Later on the Hales sold the land to the Carrigans. This suit for injunctive relief was brought by the Carrigans when the appellants levied execution on Lot 23 under their deficiency judgment and served notice that the property would be sold by the sheriff.
The chancellor was right. A judgment lien attaches only to the judgment debtor’s interest in the land, “and, if that interest be subject to any infirmity or condition by reason of which it is eliminated or ceases to exist, the lien attached thereto ceases with it. ... A judgment lien is subject to existing equities of third parties in the land.” Snow Bros. Hdw. Co. v. Ellis, 180 Ark. 238, 21 S. W. 2d 162 (1929).
More than three months before Pulaski Federal obtained its foreclosure decree Stillman had bound himself to sell Lot 23 to the Hales. There is no contention that the Stillman-Hale contract was anything other than a good-faith transaction. Hence Pulaski Federal’s judgment lien was subject to that contract and was defeated when Stillman conveyed the lot to the Hales.
The entire thrust of the appellants’ argument is that the Stillman-Hale contract was not a present sale of the land, because the agreement contemplated that various steps were to be taken in the future, such as the furnishing of an abstract of title, the obtaining of FHA financing, the execution of a deed by Stillman, the giving of a note by the Hales, and so forth. No matter. Contracts for the sale of land nearly always leave one or more steps, such as the examination of title, to be taken in the future, but the seller is nevertheless bound to perform his agreement. See McClain v. Alexander, 235 Ark. 64, 357 S. W. 2d 1 (1962); Bushmeyer v. McGarry, 112 Ark. 373, 166 S. W. 168 (1914); Meyer v. Jenkins, 80 Ark. 209, 96 S. W. 991 (1906). If Stillman had attempted to evade his obligation the Hales could have obtained specific performance. It follows that the Hales’ equitable rights were superior to Pulaski Federal’s subsequent judgment lien, because, as we have said, that lien was “subject to existing equities of third parties in the land.”
Affirmed.
Fogleman, J., dissents. | [
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CarletoN Harris, Chief Justice.
On March 22,1966, Mrs. Sara Brannon, age 30, appellee herein, was operating a 1956 Chevrolet automobile, which was owned by her husband, Earnest Dean Brannon, within the city limits of Morrilton. Occupying the vehicle with appellee were her three small children. Mrs. Brannon was traveling west on Highway 64, and she stopped her automobile at the intersection of Cherokee Street. According to her subsequent testimony, it was her intention to turn left, and she signaled such a turn with her blinker light. Joe Mallett, driver of a Save-A-Stop, Inc., tractor and trailer unit, was likewise traveling west behind Mrs. Bran-non, and struck the rear of the Brannon vehicle. Appel-lee received personal injuries, and thereafter, she instituted suit for damages purportedly suffered. Her husband, individually, and'as father and next friend of the minor children, likewise joined in the complaint, seeking recovery for the damage to his automobile, the loss of companionship and consortium of his wife, recovery for the injuries to the children, and judgment for the medical, hospital, and other bills allegedly occasioned by the collision. On trial, the jury returned a verdict for Mrs. Brannon in the amount of $30,000.00, and found for Mr. Brannon in the amount of $2,000.00. The $2,000.00 judgment was paid, but Mallett and Save-A-Stop have appealed from the judgment entered against them for the benefit of Mrs. Brannon. For reversal, six points are relied upon, but under the view that we take, there is no necessity to discuss all of these contentions.
The proof on the part of appellee reflected that she was on her way to her mother’s home somewhere in the neighborhood of 5:00 o’clock P.M. She stated that she traveled west on Highway 64 with the intention of turning left into Cherokee Street, and that she turned on the blinker at the intersection for the purpose of allowing eastbound traffic to clear before making her turn. While waiting, she was struck by the vehicle driven by Mr. Mallett. Appellants readily admit the negligence of Joe Mallett, which is imputed to appellant, Save-A-Stop; however, appellants point out that such an admission is not intended to absolve the appellee of negligence, and it is contended that she was likewise guilty of negligence.
It is urged that the court erred in permitting the testimony of A. A. Davis, who operates a grocery and furniture business on Highway 64. Mr. Davis, whose store is about a half block from the intersection, testified that he heard the crash, and he immediately went outside, and noticed that the left blinker light on the Brannon automobile was blinking. Appellant argues that since Mr. Davis did not see the collision, this testimony should not have been allowed. Appellant argues that the fact that the light was on after the collision was not proof that it was on before the collision, and that this testimony permitted the jury to speculate that the light was on. We are not impressed by this argument. The testimony by Davis was to the effect that he immediately ran out of his store upon hearing the crash, and noticed the blinking light. We think this was a circumstance that the jury was entitled to consider in reaching its conclusions.
It is asserted that the court erred in permitting Dr. T. H. Hickey iof Morrilton to express an opinion based on, according to appellant, a deficient hypothetical question. The question was rather lengthy, and was based on the testimony presented by appellee and her witnesses. In propounding same, counsel for appellee asked the doctor to assume that the weight of the tractor-trailer which struck appellee’s car was approximately 12,000 pounds; that the empty weight of the trailer was approximately 10,000 pounds, but carrying a load of approximately 2,000 to 2,500 pounds, and that the blow pushed the vehicle of Mrs. Brannon (who had her foot on the brake) approximately 73 feet. Her immediate symptoms of injuries were then described and Dr. Hickey was asked if he could state whether or not, with a reasonable degree of certainty, that this collision was a competent producing cause of Mrs. Brannon’s pain and disability. Counsel for appellants objected on the basis of the fact that there was no evidence as to the speed of the tractor, the doctor having stated that weight and speed produce force. Of course, there would .be a difference in the result where a vehicle traveling 20 miles an hour struck an object, and where one traveling 60 miles an hour struck the same object, though it was undoubtedly appellee’s idea that the distance an object travels after being hit (the distance being disputed) is itself an indication of the force (and therefore, indirectly, the speed) of the blow. There being no testimony as to speed, that factor could not properly be used in propounding the hypothetical question, but this does not mean that such a question could not be asked. In Missouri-Pacific Railroad Company v. Hampton, 195 Ark. 335, 112 S. W. 2d 428, this court, quoting earlier Arkansas cases, said:
‘ ‘ In taking the opinion of experts, either party may assume as proved all facts which the evidence tends to prove. The party desiring opinion evidence from experts may elicit such opinion upon the whole evidence or any part thereof, and it is not necessary that the facts stated, as established by the evidence, should be uncontroverted. Either party may state the facts which he claims the evidence shows, and the question will not be defective if there be any evidence tending to prove such facts.”
Further, quoting yet another case, the court added:
“In propounding a hypothetical question to an expert witness, the data upon which it is based need not cover all of the facts which have been proved in the case. The party offering the testimony may select such facts as he conceives to have been proved, and predicate his hypothetical question thereon.”
It was also stated:
“ * * * Besides, if appellants’ counsel thought there were any facts omitted from the question which were essential to forming a conclusion, his remedy is to put those additional facts before the witness on cross-examination. ’ ’
Here, no cross-examination relative to the basis of the answer given by the doctor was conducted; in fact, there was' no cross-examination concerning- the hypothetical question at all. We find no merit in this contention.
Appellants’ primary point for reversal is the assertion that the court erred in denying appellants’ motion to require a further medical examination of Mrs. Bran-non. The factual background giving rise to this point is as follows:
Appellee’s medical witness was Dr. Hickey, who, on February 20, directed a letter to counsel for appellee which states:
“To Whom It May Concern:
Re: Mrs. Sarah Brannon
This patient was seen at St. Anthony’s Hospital on March 22, 1966. She complained of some pain and soreness in the region of her neck and head, with some pain and discomfort in the region of the anterior chest wall. According to the history from the patient, she had just been in an automobile accident in which the car she was driving was struck from behind and knocked some distance. She remained at St. Anthony’s Hospital and was dismissed on April 3, 1966. The pain and soreness in the region of the cervical spine, dorsal spine and anterior chest wall, and the headaches became more severe. She has had almost continual pain in this region since this accident. X-rays were negative for fracture or dislocation. She has been treated with analgesics, sedatives, muscular relaxing drugs, and ACTH, and with a cervical collar. It is my opinion that this patient will have approximately 10% to 15% permanent partial disability in the region of the cervical spine as a result of this accident. ’ ’
Copy of this letter was turned over to counsel for appellants. Appellants had previously requested an ex- animation of Mrs. Brannon by Dr. J. J. Mag;ie, a Mor-rilton physician, and she voluntarily 'submitted to an examination by this doctor on February 27. Magie’s report was submitted to counsel on March 1, and the portion pertinent to this point reads as follows:
“Upon examination of the sensory system there was noted to be complete anesthesia to sharp pin point sticks of the skin involving in an area involving the left upper extremity, left liaemothorax, left neck and left face. The patient is unable to distinguish between dull and sharp pin points in these areas. There appears to be loss of position sense of the sensory system involving the left upper extremity. There seems to be some weakness of trapezius power on the left. The bulk of the muscle appears to be intact as there is no atrophy. The power hand grip is negative. Abduction and adduction of the fingers were normal. Extension and reflexion of the forearm were normal but seem to be weak. The muscle bulk and tone appear to be normal. The reflexes of the upper extremity tricepts, bicepts and braehoradialis were normal. The occumen were positive on the right side. The lower extremities appear to be intact.
“It is thought that this patient contains quite bizarre neurological findings that are difficult to evaluate. It is suggested that this patient be examined by a neurologist for completion of diagnosis. It does appear that this patient has suffered some cervical neck injury. This is demonstrated by weakness of the left upper extremity, weakness of trapezius function and loss of ability to completely flex the neck.”
Tbis 'was ■ appellants ’ first information concerning any nerve damage, and a motion was filed asking that Mrs. Brannon submit to further medical examination under the rules of discovery. A copy of Dr. Magie’s findings was attached to the motion. The court, on March 6, denied this motion.
Mrs. Brannon, inter alia, testified as to a loss of feeling in.her left shoulder and left arm, and Dr. Hickey also testified to these facts on his direct examination. The doctor admitted on cross-examination that he had not mentioned in his letter of February 20 (heretofore set out) any loss of feeling, but stated that, in the letter, he was just giving a “summary” of his findings. Dr. Hickey agreed that a neurologist would be more likely to find nerve damage than the normal practitioner. The doctor had stated on direct examination that he had sent Mrs. Brannon to see Dr. John Adametz, a neurosurgeon of Little Rock, testifying that he made this appointment for appellee as a matter of determining that she had no brain damage. There is no report from Dr. Adametz in the record, nor did he testify at the trial, and appellants obtained the first knowledge of appel-lee’s visit to this neurosurgeon during Dr. Hickey’s testimony.
Appellants argue that they had no way of knowing, when selecting Dr. Magie, that an examination by a neurologist was desirable, since the doctor had been selected before they received the report from Dr. Hickey, and —what is more important — nothing is mentioned in the Hickey report that they received concerning nerve damage.
We think there is merit in appellants’ contention; of course, as stated in Reed v. Marley, 230 Ark. 135, 321 S. W. 2d 193, the statute, Ark. Stat. Ann. § 28-357 (a) (Repl. 1962), does not give an absolute right to a defendant to have the complaining party examined by a physician of its choice, but does authorize such an examination “for g’ood cause shown.”
We think good cause was shown. These alleged injuries certainly were important, and could have influenced the jury in determining the amount of damages to be awarded. There was no reason for appellants to suspect that an evaluation by a neurologist was necessary until after they received the report from Dr. Magie. There was no request for a continuance of the case and there was no reason why the granting of the motion would necessarily delay the disposition of the litigation, but the most important fact is that the suggestion for the further examination came, not from appellants, but from Dr. Magie, who stated that “this patient contains quite bizarre neurological findings that are difficult to evaluate, and suggest that Mrs. Brannon should be examined by a neurologist for a completion of diagnosis.” Of course, there was no opportunity to take the deposition of Dr. Adametz, since appellants were not aware of the fact that he had made an examination.
We think there was an abuse of discretion in not granting this motion.
It is contended that there was no substantial evidence to justify the question of permanent injury being submitted to the jury.'We disagree, but inasmuch as this judgment is being reversed, and the cause remanded for another trial, we see no need to discuss the point.
It is asserted that the judgment was excessive, and this point, of course, is no longer involved, and one other alleged error is presented, but it is not likely to again occur on a second trial.
For the error herein set out, the judgment is reversed, and the cause remanded.
With reference to neurological findings, Dr. Magie, at the trial, testified:
“Well, this was what was quite interesting with this woman, and this woman presents a picture of having, and she states that she has in her history, some loss of anasethia of the left hand; and when I checked her for sensory sensation, this woman has loss • — it’s subjectively shown — that she has loss of sensation of the left upper arm, the upper half of the left thorax and of the face. She has a positive Hoffman sign of the right hand, which probably means nothing really. This is — Can I give my interpretation of this?
“This is quite a bizarre finding — I’m sorry — One other thing is that this woman has loss of positional sense of the left upper arm, and what I mean by that is that I can bend her fingers like this and have her close her eyes and ask her which position her finger is in, and she can’t tell me whether it’s straight or whether it’s flexed. And these findings — loss of sensation of the chest— the skin covering the chest — the arm and the face and the positive Hoffman and loss of positional sense is quite a bizarre array of symptoms, and it’s hard to explain these symptoms, or these signs on the basis of her injury.”
Q. “Doctor, you might tell me what you mean by bizarre?”
A. “Well, it doesn’t fit completely.”
Q. “All right. In lay language then I assume then — or can I assume that you are saying you cannot relate these complaints to a history of whip lash?”
A. “That’s right. ■* * *
“The left side of the neck, the left arm, and the left thoracic cage is supplied by the sensory nerves from the cervical spine— here. The left face is supplied by a cranial nerve, which has nothing to do with the cervical nerve's in the neck. This is why this thing seems quiet bizarre, how this woman with a neck injury could have involvement of the left face, loss of sensation to touch and pain over the left side of her face. This is why, to me, it just doesn’t fit. 1 couldn’t explain it.” | [
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Paul Ward, Justice.
The question here presented is novel, important and, insofar as we can ascertain, is without direct precedent in this State.
Briefly stated, the question is: Does the judiciary or the State Hospital have the authority to determine the “sanity” or the “insanity” of a person on trial for first degree murder? The material background facts out of which this question arose are set out below.
We now examine the statutes relied on to sustain this contention.
(1) Ark. Stat. Ann. § 41-108 (Repl. 1964), which reads:
“A lunatic, or insane person without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged”.
(2) Ark. Stat. Ann. § 41-109 (Repl. 1964), which reads:
“An idiot shall not be found guilty or punished for any crime or misdemeanor”.
It is obvious from a casual reading of the above two statutes that they have no bearing on the question here involved. It is not an issue as to whether petitioner can be “found guilty” or “punished” but whether he can be “tried”.
(3) The statute which is the main support for petitioner’s contention is Ark. Stat. Ann. § 59-237 (Supp. 1965). The portion of this statute which is pertinent to the issue here reads:
“. . . when any person who has been informed against or indicted upon a felony charge and who has been committed to the State Hospital for a mental examination under [Ark. Stats. (1947) § 43-1301] and has been found to be insane, the Superintendent shall request a writ of commitment from the judge before whom the case is pending. The request for commitment shall be accompanied by a certificate from the medical staff of the State Hospital setting forth the facts as to the patient’s mental condition, and that he is insane; and thereupon the Court before whom the case is pend ing shall issue an order of commitment to the State Hospital. Thereafter such person shall be confined in the State Hospital until he regains his sanity.” (Emphasis ours.)
Petitioner, Frank “Sonny ” Davis, was charged with first degree murder. Upon arraignment January 30, 1967 petitioner entered a plea of “not guilty by reason of insanity”. Thereupon the trial court committed petitioner to the State Hospital for observation for a period not to exceed thirty days, as provided in Ark. Stat. Ann. § 43-1301 [Repl. 1964.]
On February 28, the Hospital made a written report to the court stating: ‘ ‘ Their diagnosis was: Manic Depressive Reaction, Manic type”, and that petitioner “was probably mentally ill to the degree of legal ire-responsibility at the time of the alleged commission of his acts”. The report also- recommended that the petitioner remain in the Hospital for treatment, and requested the court “to issue .a Writ of Commitment to give the Hospital the legal authority for the petitioner’s detention” under Ark. Stat. Ann. $ 59-237 (Supp. 1965).
On March 2, the court asked the Hospital to furnish a statement of its findings, which was done on May 5, but in the meantime the Hospital had asked the court for a commitment since, otherwise, it had no legal authority to hold petitioner.
The trial court refused to re-commit petitioner to the Hospital, and set his trial for August 10, 1967. Previously, however, this “Petition for a Writ of Prohibition” wherein this Court is asked to prohibit the circuit court from proceeding with the trial “until Petitioner has regained his sanity” had been filed.
Contention of Petitioner. It is the contention of petitioner that the trial court is legally bound to recommit him to the Hospital and that, therefore, it has no jurisdiction or authority to proceed with the trial. We call attention to the words first emphasized above which require interpretation. If they mean “found to be insane” by a trial court, then this petition must necessarily be denied because no such finding has been made by the trial court in this case. Necessarily, therefore, petitioner must have taken the position that the words mean — “found to be insane” by the Hospital personnel. We accept this interpretation, for the purpose of this opinion, as being correct because the statute also says the Writ is requested “from the judge before whom the case is pending”. It would appear evident that if the case is “pending” there would have been no final judgment.
We now call attention to the last sentence in the statute which gives the State Hospital the right to retain petitioner until “he regains his sanity”. At this point we also call attention to the fact that this is the exact relief which the' petitioner here requests.
Consequently this Court is called upon to answer the following question: Is a statute constitutional, which takes away from the judiciary and delegates to a branch of the executive department, the right and power to finally decide whether a person (charged with murder) is “sane” or “insane”? Our answer to the question is “no”.
Where a person charged with murder and enters a plea of insanity a fact question is presented, and this fact question should be, and has uniformly been, decided by a jury in a court of law. See: Duncan v. State, 110 Ark. 523, 162 S. W. 573; Wilhite v. State, 158 Ark. 290, 250 S. W. 31; Green v. State, 222 Ark. 308, 259 S. W. 2d 142, and; Downs v. State, 231 Ark. 466, 330 S. W. 2d 281. Numerous other cases to the same effect could be cited. Petitioner cites no decision of this Court or any court to the contrary, and our research reveals no such case.
Volume 32 of Corpus Juris at page 756, under the topic of “Insane Persons” deals with “Proof of Sanity or Insanity; Province of Court and Jury”. Among other things it is there stated:
“It is presumed in law that all men are sane, and the burden to prove insanity is on the person alleging it,” citing cases from sixteen different states.
There are two recent articles in volume 20 of the Arkansas Law Eeview, one at page 121 and the other at page 398, both dealing with the Burden of Proof of Insanity in criminal cases. The essence and effect of both discussions, insofar as they bear on the issue here, is to require “the defendant to establish his incapacity to the satisfaction of either the court or jury”.
It is our conclusion in this case; that the Hospital has no power or legal right to demand custody of petitioner for an indefinite time to be determined by it; and that the trial court cannot, at this stage of the proceedings, be forced to deliver petitioner to the Hospital.
Writ denied. | [
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John A. Fogleman, Justice.
Appellants ask that we reverse the trial court’s affirmance of an order of the Arkansas Commerce Commission authorizng the transfer of a certificate of public convenience and necessity. This certificate for the transportation of household goods was issued to one Homer Fisher on March 16, 1955. It covered irregular routes between points in Arkansas, but all shipments were required to originate or terminate in Mississippi County. Fisher entered into a contract with Branscum for the sale of these operating rights. The joint application of these parties was resisted by appellants, intrastate common carriers of household goods. Their protest was based upon the assertion that the certificate was dormant for failure to render reasonably continuous service. Consequently they contend that approval of the transfer is inconsistent with the public interest. One of the appellants held a virtually identical certificate which he had leased to Branscum.
Provision for transfer of certificates is contained in Ark. Stat. Ann. § 73-1767 (b) (Repl. 1957). Transfer is prohibited when the Arkansas Commerce Commission finds that such action will be inconsistent with the public interest or where it appears that reasonably continuous service has not been rendered under the authority granted by the certificate prior to the application.
After a hearing on November 23, 1966, the Arkansas Commerce Commission approved the transfer. It found that the certificate had not been dormant within the meaning of § 14, Act 397 of 1955 (§ 73-1767). It made a specific finding that Homer Fisher had been ill for a considerable period of time and unable to attend, to business such as he normally would have conducted: had he not become ill, but that afterwards he had been1 attempting to carry on his business.
The scope of our review on appeals is governed by § 73-134. This section provides that findings of fact of the circuit court are not binding on this court. On the other hand, it requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable. The circuit court is required to review the order upon the record presented and to enter its finding and order thereon.
In the opinion in Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604, the variable, apparently inconsistent and sometimes confusing statements in some of our opinions with reference to the meaning and application of this statute were harmonized. It is now clear that the review therein provided for is that which we make in chancery cases. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S. W. 2d 372. In doing this, we follow these rules:
1. The trial is de novo upon the record — not as if no judgment had been rendered, but for the purpose of determining whether the judgment is against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S. W. 481; Missouri Pacific RR. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644; Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604.
2. Neither the findings of the circuit court nor the findings of the Commission are binding on appeal, but we will not upset the findings of the Commission unless they are clearly against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truca Service, Inc. v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 157 S. W. 2d 512; Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S. W. 2d 716; Wisinger v. Stewart, supra; Washington Transfer & Storage Co. v. Harding, 229 Ark. 546, 317 S. W. 2d 18.
3. In weighing the evidence, we do not substitute our judgment for that of the Commerce Commission. We will accord due deference to the Commission’s findings because of its peculiar competence to pass upon the fact questions involved and because of its advantage in seeing and hearing the witnesses during the full hearing. St. Louis S. W. Ry. Co. v. Stewart, 150 Ark. 586, 235 S. W. 1003; Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Co., supra; Schulte v. Southern Bus Lines, 211 Ark. 200, 199 S. W. 2d 742; Wisinger v. Stewart, supra; Boyd v. The Arkansas Motor Freight Lines, Inc., 222 Ark. 599, 262 S. W. 2d 282; National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc., 233 Ark. 887, 349 S. W. 2d 672.
4. The burden is on the appellant to show that the judgment is erroneous. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S. W. 481.
5. When the evidence is evenly balanced, the Commission’s views must prevail. Boyd v. The Arkansas Motor Freight Lines, Inc., supra.
In short, this court’s function is to inquire whether the determination of the Commission is contrary to the weight of evidence. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S. W. 2d 372. In so doing, we must not lightly regard the findings of the Commission. Superior Forwarding Co. v. Southwestern Transportation Co., 236 Ark. 145, 364 S. W. 2d 785.
Appellants now urge that the order approving the transfer is not supported by substantial evidence. The basis of their contention is that there was not substantial evidence to show that reasonably continuous service under the authority granted Homer Fisher had been rendered prior to the application for transfer.
Branscum testified that: During the four or five years h¿ had operated under the lease of Beckham’s certificate to the extent that it had been necessary for him to purchase additional equipment and to start con struction of a new -warehouse; the population of the Blytheville area was increasing and industrial plants were moving in; he did considerable business because of the air base at Blytheville, and a lot of civilian moves were going on; to his knowledge, the only certificates for household goods carriers were those issued to Homer Fisher and three of the appellants, one of whom was previously Branscum’s lessor. Branscum also testified, over the objections of the protestants, that he had reviewed the books and records of Homer Fisher and made a list of the moves the latter had made outside the city limits of Blytheville in the preceding two or three years. The list showed 23 moves outside the city limits of Blytheville in 1963, 19 in 1964, 17 in 1965, and 24 in 1966. Although he had access to information as to origin and déstination, this was not shown on the list and it was very possible that most of the shipments during 1963 may have gone within a radius of a mile of Blytheville. He could not tell whether any of the moves on the list went to Little Rock or Texarkana or any other place in Arkansas. In the books he saw moves to Jonesboro and West Memphis.
Homer Fisher, at the time of the hearing, only owned one truck which he testified had been in operation continuously. He further testified that: He worked out of his home, a telephone there being listed in his name; he had two part-time employees; he had no warehouse; he was personally in charge of the operation; he had transported one or two or maybe more shipments between various points and places in Arkansas and Mississippi County in 1966; they originated in Blytheville, one going to Jonesboro and one to West Memphis; he handled 24 or 34 shipments to points around the edge of Blytheville, but outside the city limits, over the preceding two years; he had brought one or two to Little Rock and some to West Memphis during the life of the permit; he had not been able to handle more than a very few shipments during the preceding two years because of illness; he judged that there were five or six ship ments under the permit in Mississippi County just outside the edge of Blytheville during the month of September 1966; to the best of his memory he handled movements under the permit in August 1966, but didn’t know where they went; he had records that would show movements during each month of 1966, but did not have them with him; he moved one or two to Fort Smith and one to Prescott and moved into Jonesboro in 1966, but couldn’t remember any others; the service he had rendered in 1965 had been less because he had been in the hospital most of the time; the bulk of his operations under the permit was conducted in the immediate vicinity of Blytheville; he drove his truck himself; he was advertising in the telephone book, in his front yard and on his truck, and by getting in contact with persons, making solicitations and trying to get business; he was incapacitated from July 1965, up until the first of September, but for the preceding two months he had been up and moving people.
Protestants offered no evidence pertaining to the issues.
We are unable to distinguish this case from The Arkansas Motor Freight Lines, Inc. v. Howard, 224 Ark. 1011, 278 S. W. 2d 118. There the applicant for transfer was authorized to operate as a motor carrier of a wide range of commodities upon designated highway routes extending into every section of the state. It had been unable to exercise its authority to any great extent. It had only one terminal. Its rolling stock consisted of one truck, three tractors and four semi-trailers. It had carried only 39 shipments of freight during its thirteen-month existence, although it advertised for business and never refused any cargo tendered. The Commission found that reasonably continuous service had been rendered and this court affirmed. Language in that opinion which we here deem appropriate is as follows:
“* * * Inasmuch as the Commission’s knowledge of its own specialized field is undoubtedly superior to ours, its judgment on a question of fact is not to be set aside unless clearly against tbe weight of the testimony. Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604. No difficult problems of law were presented to the Commission in this case. Whether there is a need for the whole range of facilities that might be made available under the Atlas certificate is not the question, for the issue of public convenience and necessity was determined when the permit was granted. Nor was Atlas required to show that it had fully utilized the possibilities lying at its disposal; no law or regulaton requires that a motor carrier systematically travel over all its territory with trucks that are empty for want of business.
* * [T]he Commission was warranted in concluding that the Atlas certificate has not been dormant. This little company, with relatively modest assets, held itself in readiness to render service, advertised its existence, and accepted whatever business was offered. Under the statute complaint might have been made that it was not transporting ‘all the commodities authorized . . . over all the routes authorized,’ Ark. Stats., § 73-1715; but no such complaint ivas lodged by the Commission, the public, or any competing carrier. In this proceeding the issue is narroAved to whether the company’s service has been reasonably continuous; the Commission’s affirmative answer is not contrary to the evidence.”
In this case, too, the certificate might have been revoked by the Commission upon complaint of any of the protestants, or upon its oavh motion, on the very ground of appellants’ protest. See § 73-1767 (a). The fact that no such action was instituted could well be the basis for an inference that appellants’ anxiety about the transfer is due to the prospect of a more active utilization of the authority by a healthy proprietor. Appellants argue in their brief that we ought not to permit a change in the competitive situation in Blytheville and say that they are willing for Fisher to continue operations under the certificate. According to the opinion in the cited case, snch a change is not a basis for a finding that the transfer is inconsistent with the public interest.
As a point for reversal, appellants allege error in the admission of the lists prepared by Branseum from the Fisher books. Since they , were not business records kept in the ordinary course of business, they contend that these exhibits were inadmissible under either the best evidence rule or Ark. Stat. Ann. § 28-928 (Repl. 1962). Appellants’ argument on this point is interwoven into, and forms a part of the basis for, their contention that there is not substantial evidence to support the Commission’s findings. Even without these lists, the testimony would have been sufficient to meet the test laid down in the Howard case. Furthermore, it is not always necessary or advisable that boards, commissions and agencies of the nature of the Commerce Commission be required to adhere strictly to the rules of evidence governing courts in jury trials. See Piggott State Bank v. State Banking Board, 242 Ark. 828, 416 S. W. 2d 291. The necessity for strict adherence to rules of evidence by this Commission has also been eliminated by statute. The Arkansas Commerce Commission came into existence by virtue of Act 132 of 1957 (§§ 73-151 to 73-162). Under that Act all authority, powers, duties, privileges and jursdiction of the Arkansas Public Service Commission with respect to regulation of carriers were expressly conferred on the new Commission. We have recognized that procedure on appeals from the Commerce Commission is governed by the statutes which applied to the Arkansas Public Service Commission as the successor to the Corporation Commission which, in turn, was the successor to the Railroad Commission. See Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604. By the same process of reasoning, the statute on rules of evidence governing the Public Service Commission while it had jurisdiction of matters pertaining to carriers should be applied. These rules were set out as a part of the same Act which changed the name of the Arkansas Corporation Commission to Arkansas Public Service Commission. Act 40 of 1945. Subsection A of § 2 of that Act (§ 73-127) provides that the Commission shall not be bound by the strict technical rules of .evidence, but may exercise such discretion as will facilitate its efforts to ascertain the facts bearing upon the right and justice of the matters before it. We cannot say that the Commission abused its discretion in admitting the evidence attacked.
The uncontradicted evidence offered by appellee is not too insubstantial to support the findings of the Commission. The judgment is affirmed.
Harris, C. J., George Rose Smith and Brown, JJ., dissent. | [
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Cockrill, C. J.
There was no dispute about the cause of the injury in this case. The appellee jumped from a running; train, which, according to the testimony of most of the: witnesses, was under full headway at the time, and by his owru statement was moving at the rate of ten or twelve miles an hour. The appellee’s conduct in leaping from the train was. the proximate cause of the injury of which he complains, and the question with the court and jury on the trial, was, whether his action was justifiable or negligent.
The court at the instance of the appellee gave a long and somewhat complicated instruction to the jury, from which we-infer that it was intended to charge that it was negligence on the part of the company, to refuse to stop its train at the station of his destination, in order to allow appellee to alight^ and that this, coupled with the fact (if they should find it to be a fact) that he acted in obedience to the directions of the conductor in leaping from the train, would justify the act; and also, in the same instruction, that the leap was justifiable if the appellant so leaped under the reasonable apprehension that the conductor would eject him from the moving train unless, he left it voluntarily.
The first theory does not embody the law applicable to this, case, and the bill of exceptions does not disclose the evidence upon which the second could be based.
Where the risk or danger of alighting from a moving train is not apparent to the passenger, and he is urged to take the hazard by the company’s employes, whose duty it is to know the danger, and does so, his conduct will not be regarded as negligent. Where the danger is obvious, but slight, he has the right to rely upon the judgment of the conductor, whose duty and experience he may presume give a superior knowledge of such matters, and so justify an act which would otherwise be negligent. The cases of St. Louis, Iron Mountain & Southern Railroad v. Cantrell, 37 Ark., 419, and Memphis & Little Rock Railroad v. Stringfellow, 44 Ib., 322, are illustrations of this in our own reports.
Filer v. N. Y. Cent. R. R., 49 N. Y., 47, was a case of a passenger attempting to alight, while the train was in motion, in obedience to the directions of a brakeman. In disposing of the case, the court say: “That it Was culpable negligence on the part of the defendant to induce or permit the plaintiff to leave the train while in motion, and a gross disregard of duty not to stop the train entirely, and give her ample time to pass off with her baggage, is not disputed. Notwithstanding this, if the plaintiff did not exercise ordinary care, and might with ordinary care and prudence have avoided the injury, she is precluded from recovery.”
In Lambeth v. Railroad, 66 N. C., 494: “If the motion of the train was so slow that the danger of jumping off would not be apparent to a reasonable person, and the intestate acted under the instructions of the manager of the train, then the resulting injury was not caused by contributory negligence or a want of ordinary care.”
Ordinary care, in this case, was defined to be that degree of care which may have been reasonably expected from a sensible person in the passenger’s situation. A passenger cannot throw the responsibility of his own wanton and unreasonable acts upon the company, merely because a conductor has directed it. ■ “One who inflicts a wound on his own body must abide the suffering and the loss, whether he does it in or out of a railroad car.” Black C. J. in Railroad v. Aspell, 23 Penn. St., 147. “If while a train is at full speed, .the conductor should direct a passenger to jump out at a point extremely hazardous, it would hardly excuse the passenger from the legal consequences of contributory negligence if he acted voluntarily.” Railway v. Krouse, 30 Ohio St., 222.
“Had the cars been going at a rapid rate, the plaintiff must have known that she would be injured by leaping from them, and the attempt to leave the cars under such circumstances, even at the instance of the railway servants, would have'been a wanton and reckless act, and no recovery could have been had against the defendant.” Filer v. Railroad, 49 N. Y., sup.
The Appellee was not an infant or non compos. He was not put to a sudden election in an emergency to choose between the least of two impending evils. He had been informed by the conductor, soon after entering the train, that it was a through freight and that the station of his destination was not one of its stopping points. Just before reaching the station he was told the train would not stop. No check, he himself testifies, was made in the speed of the train, but he chose his ground when the station was passed, and leaped. It was a rash and reckless exposure of the person to peril, and the command of the company’s agent did not justify it. As was said in Railroad v. Jones, 93 U. S., 339: “As well might he have obeyed the suggestion to put himself on the track before the advancing wheels of the locomotive.”
To be forcibly ejected from a moving train would, obviously, be attended with more danger than to leap from it, and if the appellee had been justified in the belief that he would be ejected if he did not go voluntarily or without force, no blame could be attached to his conduct. In such case the railroad, being the author of the original peril, would be answerable for the consequences. Railroad v. Aspell, sup; Nelson v. A. & P. Railroad, 68 Mo., 593; Stokes v. Sattonstall, 13 Pet., 181.
It was upon this theory that the court instructed the jury at appellee’s instance, and upon its own motion they were told, that unless the appellee was “induced to jump from the train by reason of the orders, threats, show of force, language and manner of the conductor,” and that these were of such a nature as to cause a reasonable man to believe that if he remained on the train he would receive bodily harm or be forcibly ejected from the moving train. The latter instruction is open to the objection that it assumes as a fact that there were threats of violence and a show of using force by the conductor. It invades the province of the jury. Floyd v. Ricks, 14 Ark., 295; St. Bank v. McGuire, Ib., 537; Montgomery v. Erwin, 24 Ib., 543; Randolph v. McCain, 34 Ib., 702.
But the evidence would not warrant the jury iu finding that there were threats of violence or a show of force, and there is nothing disclosed in the record from which it could reasonably be inferred that the appellee would have suffered any bodily harm by remaining upon the train. These instructions would lead the jury to infer that the evidence tended to establish the facts hypothetically stated in the first, and assumed to exist in the other, and ought not to have been given. L. R. & Ft. Smith R’y v. Trotter, 33 Ark., 593; Lawrence Co. v. Coffman, 36 Ib., 641.
The appellee had not been directed or induced by any of the company’s employes to enter the train. He had made no effort to ascertain whether it would stop at his destination or not. It was his duty to do this. There were other trains going to his destination on the same day, and his mistake in taking a through train cast no obligation on the company to stop its train at a point the regulations of the road forbade, and the bare refusal of the conductor to do so was no direliction of his duty and was not negligence to be visited on the company. R. R. v. Nuzum, 54 Ind., 141; R. R. v. Hatton, 60 Ind., 12; Fink v. R. R., 4 Laus. N. Y., 147; L. R. & Ft. Smith R'y v. Miles, 40 Ark., 321, and cases cited; Marshall v. R. R., 78 Mo., 610.
The company offered to prove on the trial that the train in question was not only a through freight, not stopping at the appellee’s station, but also that it was not running on schedule time, but by telegraphic orders, and that the appellee’s station was not a telegraphic station. All of this was competent evidence, and should have been admitted. It was material to ascertain whose was the first fault, appellant’s or appellee’s, and if the appellant’s, then whether it would excuse the appellee’s. If the appellee, through his own neglect, had embarked on a mere wild train which the conductor could not delay without the danger of throwing the passenger and freight travel of the road into confusion, it was his duty to refuse to stop merely for a passenger’s accommodation. The fact that he took the appellee’s ticket could not alter the rule finder such circumstances. R. R. v. Hatton, 60 Ind., sup; R. R. v. Randolph, 33 Ill., 510, and authorities cited sup.
That the conductor’s conduct was rude and that he grossly violated the duty the carrier owes to its passengers, .the jury were fully justified in believing, and their just indignation at his conduct is evidenced in the round verdict they returned against the appellant; but the appellee’s suit is for a personal injury, which, as we have seen, was the result of his own misconduct, and not the consequence of the conductor’s acts.
For the errors indicated, the judgment will be reversed, and the case remanded for a new trial. | [
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Cockrill, C. J.
The record in this case is somewhat confused, and it is difficult for us to determine what state of facts-the chancellor had before him on the hearing of the cause. Counsel seem to have apprehended this, and have offered for our consideration an agreement upon facts entered into pending the appeal here. We have steadily refused to allow records to be altered by agreement in this court. To sanction a different practice would permit cases to be ma'de up here that were not presented or tried in the lower courts. Parties must stand by the record as it exists in the trial court.
It appears that the appellant was the assignee of a judgment rendered against one Latham; that Latham, at the time of the rendition of the judgment, was the owner of a one-sixth interest in a number of lots in the town of Fort Smith, which he had acquired by purchase from Wood B. Rogers, who was one of the six heirs of John Rogers, deceased. The appellant caused execution to issue on his judgment and had it levied on the Latham lots. The appellee instituted suit to restrain the execution sale as to the lots described in his complaint. He alleged that he was the owner of a part, by virtue of a deed from John Rogers in his lifetime, which had been destroyed by fire, and that his title to the other was by deed from one of the executors and the heirs of John Rogers. He alleged that the appellant’s judgment was not a lien on the lands, but that a sale under the execution would cloud his title and greatly depreciate the value of his property.
An agreed statement of facts, entered of record in the court below, and considered by the court on the hearing, is itself in definite as to the extent of the admission of the appellee’s title. It was doubtless understood by the chancellor to make no questjon upon this point, but to admit the title. In order to invoke the aid of the chancery court to protect his interest by injunction, it was necessary for the appellee to show an interest to be protected. . It would be a vain thing for the court to offer this protection where it would avail nothing. The contest in the lower court seems to have been over the lien of the appellant’s judgment, and the right to satisfaction out of the appellee’s lands, notwithstanding his title.
As to the east half of lots 10 and 12, in block 49, the complaint alleges that the appellee purchased them from John Rogers, the ancestor of W. B. Rogers, in 1859. The agreed statement of facts in the trial court, admits that he entered into possession at that date, and has ever since maintained it adverse to all claimants. This being true, the appellee had title by limitation before W. B. Rogers conveyed to Latham, and as Latham took nothing by the conveyance, he had no interest for the lien of the judgment to attach to.
The appellee’s title to the other lands in controversy is not so clear. The title deeds from the executor and the several •heirs of John Rogers, referred to as exhibits to the complaint, are not in the record. Presumably they were not filed or offered for the court’s consideration. But as the allegations of the' complaint, that the appellee had purchased from the executor and heirs, were not specifically denied in the answer, and the agreed statement of facts admits that he had been in possession since the date of his purchase, the chancellor was warranted in finding that the appellee’s title was not controverted. But this title was acquired subsequent to the conveyance by W. B. Rogers to Latham, and after the judgment against Latham was rendered, This brings us to the main question—is the judgment a lien on these lands?
The judgment was rendered in 1868. In 1871, before the ... ' . . , , lien had expired, a scire facias to revive it was sued out and shortly afterwards served on Latham. • No further step was taken in the matter until 1880, when a judgment of revivor was entered by consent of the parties to the original judgment. It recites that Latham had been adjudged a bankrupt in 1868, by the United States district court for the western district of Arkansas, and had been regularly discharged from personal liability on the judgment; and that the only object of the revivor was to extend and continue the lien as it existed at the date of his adjudication as a bankrupt. It is contended for the appellant that the effect of the judgment of revivor was to continue the lien of the judgment from the date the scire facias issued in 1871, to a day in the year 1883, or three years after the rendition of the judgment. The execution issued and was levied in 1882.
The lien of a judgment upon real estate commences upon the day of the rendition of the judgment, and continues for three years, subject to be further continued or revived by suing out a scire facias and taking judgment for that purpose. Mans. Rev. St., Sec. 3918. This judgment of revivor continues the lien for another period of three years. Ib. 3925. The lien is a creature of the statute purely, and the period of its duration is limited to three years, and in the absence of legislative action, nothing short of judicial legislation can extend it beyond the bounds thus assigned to it. It is true, Sec. 3926, Mans. Rev. St., provides that “if a scire facias be sued out before the termination of the lien of any judgment or decree, the lien of the judgment revived shall have relation to the day on which the scire facias issued;” but no intention to extend the bounds of the lien beyond three years can be gathered from this. Its plain meaning is only to fix the date from which the three years shall begin to run. This is made still more obvious by the latter part of the same section, where it provides that if the lien of the judgment shall have expired before suing out the scire facias, the judgment of revival shall be a lien only from the time of the rendition of such judgment. Here a different time for the commencement of the lien is fixed. It would be a strange inconsistency to hold that the act of the clerk in issuing the writ extends the lien of the judgment indefinitely, when the formal judgment of the court can extend it for three years only. The statute will not admit of the construction that it was the design of the legislature to give an effect to the act of the clerk which they refuse to tolerate with respect to a judgment. It is the judgment of the court that continues or revives, the lien and not the suing out the writ. The writ only brings the judgment debtor into court, apprises him of the nature of the proceedings against him, and, when sued out in the lifetime of the judgment lien, fixes the date from which the court starts the new period of duration.
It was the evident intent of the judgment of revivor in this case to give the lien of the judgment revived relation to a date within three years of the rendition of the judgment. More than this, the court in its judgment of revivor did not attempt. It may be that this did not accomplish what the parties tó the judgment designed, but the rights of purchasers are not to be injuriously affected for that reason. The appellant’s judgment was not a lien on the appellee’s lands at the time of his application to enjoin the execution sale, and there is no error in the decree.
Affirm. | [
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Cockrill, C. J.
The statute regulating the proceedings for condemnation of right of way for railroads makes no provision for the initiation of proceedings by the land-owner. Mans. Rev. Stat., Sec. 3438, et seq. The company alone can put the statutory remedy into operation, and if they neglect to do so, one who is injured by the construction of the road has his remedy by action against the company for the injury sustained. C. & F. R’y v. Turner, 31 Ark., 494; C. & F. R’y v. Trout, 32 Ib., 17; L. R. & F. S. R’y v. Dyer, 33 Ib., 360; Whitehead v. A. C. R’y, 28 Ib., 461; Mills. Em. Dom., Sec. 88.
A tenant for life and remainder-man are each entitled to recover compensation for the injury he sustains. L. R. & Ft. T. R'y v. Dyer, supra. The remainder-man can recover only for such damages as affect his expectant estate. The acts of which he can complain must be of such a permanent nature as to be necessarily prejudicial to the reversion. In general this damage is the amount the estate is thereby diminished in value.
In this case the life tenant and owners of the inheritance . . . joined m an action against the railroad company to recover damages for constructing its road across their land. The company undertook to make defense against all the plaintiffs upon the ground that the life tenant had conveyed to them by deed the right of way. The court sustained a demurrer to that paragraph of the answer alleging this state of facts, and the action of the court is pressed here as error.
It does not appear, however, that the appellant was prejudiced by the order sustaining the demurrer. The company was permitted to show the release to them, of the right of way, on the trial, and the court clearly instructed the jury that no damages could be recovered of the company for injury r/to the life estate, and gave directions for eliminating that interest from the case altogether. This is the utmost advantage the company could have taken under the answer. The life tenant does not complain of this, and we take it her claim was abandoned on the coming in of the answer.
It is not contended here that the grant of the right of way by the life tenant carried the interest of the remainder-man, and the contention would be useless. The appellant, the defendant below, made no objection to the complaint on any score. The technical forms of actions no longer obtain. The complaint alleged a permanent injury to the land, and the proof made by both parties showed that this was true, with all the. particularity that could be required under any state of pleading. The complaint must be taken now as though amended to conform to the proof, and the appellant’s objection to it, if tenable at all, comes too late.
The appellant reserved no exceptions upon the trial to the . . instructions or rulings of the court, except as to the admission ° * of testimony of a witness for the appellees who testified that several acres of the land were worth less by reason of the railroad embankment throwing the surface water on it so that it could not be cultivated. This, in the witness’ opinion depreciated the value of the inheritance, and was a proper matter for the jury’s consideration, and by the decisions of this court one of the elements of damages in such cases. Springfield & Memphis R'y, v. Henry, 44 Ark., 360; Same v. Rhea, Ib., 258; St. L., I. M. & S. R'y v. Morris, 35 Ib., 622.
A new trial was not claimed because of the award of excessive damages.
Affirmed. | [
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Smith, J.
The bill in this case alleged that the plaintiff was, on the-day of-, 1883, a resident of that part of Jackson township in Nevada county designated as school district No. 2; that he was absent from the state when the assessor made his rounds, and for that reason did not furnish him with a list of his taxable property for the year 1883 ; that that officer, acting upon the best information he could get, assessed the plaintiff as residing in school district No. 14, and the taxes upon his personal property were extended accordingly; that owing to the fact that no school tax was levied for that year in district No. 2, whereas a tax of five mills on the dollar was levied in district No. 14, for the support of the schools, and the further fact that district No. 14 included the incorporated town of Prescott, and for that reason was subject to a municipal tax of two mills on the dollar, the plaintiff’s taxes amounted to $17.81 more than if he had been assessed as of the proper district. He tendered the taxes which he admitted to be due, and prayed that the collection of the excess might be enjoined.
The collector interposed a demurrer, which was sustained, and the bill was dismissed.
Sec. 3731, of Mansfield's Digest, empowers the circuit court to grant restraining orders in all cases of illegal or unauthorized taxes and assessments. And we will assume for present purposes, that the case made by the bill is one of the cases contemplated by the statute. Let us further assume that the proper construction of the revenue law, particularly Sections 5614, 5616, 5622—3, of Mansfield's Digest, is, as the plaintiff contends, that the liability of the owner of personal property to pay taxes in any school district is determined by his residence when the assessor lists his property. Still, the bill is fatally defective in not averring with distinctness and certainty that the plaintiff lived in district No. 2 when the assessor listed his personal property for taxation. His allegations amount only to this: That he resided in said district at some time during the year 1883, and that he was out of the state when the assessment was made. All the statements of the bill may be true, and yet the plaintiff be liable for the taxes levied in district No. 14. For he may have removed from the last named district after his status as a resident became fixed for that year for purposes of taxation.
Decree affirmed. | [
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Cockrill, C. J.
The appellant sued Reynolds, Doughty, Chase, Owens and Harmon on a promissory note executed by Reynolds, Doughty & Co., alleging that the parties sued were partners doing business under that style when the note was executed. The court tried the case without the intervention of a jury, after the issues were made, and found the facts to be that Reynolds, Doughty and Harmon, alone, composed the firm of Reynolds, Doughty & Co., and that they had executed the note sued on; that afterwards Reynolds .and Doughty failed in business and made an assignment to one Hunt for the benefit of their creditors; that Hunt accepted the trust, and while acting as assignee, and also as agent for Reynolds and Doughty to obtain their discharge from appellant’s claim, he paid the appellant twenty cents in the dollar on their, debt out of the assets held by him as assignee, and took from them the following instrument in writing, viz :
“ Received of J. B. Hunt, assignee of Reynolds & Doughty, thirty-three and 87-iooth dollars ($33.87) in full of my claim (note) against them for one hundred and sixty-nine and 37-1 ooth dollars, principal and interest. This receipt is not to be construed as releasing any other party whomsoever, responsible on the said note as partners or otherwise.”
The court declared the effect of this to be a release to Reynolds and Doughty of the debt, and that the release of them enured to the benefit of their co-obligor, Harmon, and accordingly gave judgment for the appellees.
It is very clear that the mere payment by a debtor to his creditor of a less sum than the amount of the debt due, though received as full satisfaction, is not an extinguishment of the demand. An agreement to accept from a third person, in behalf of the debtor, however, a less amount for the whole, is binding upon the creditor, and will discharge the debt. Gordon v. Moore, 44 Ark., 349.
In the case before us the payment was made at the instance of Reynolds and Doughty, but by a third person, and out of a fund over which they had no control. The assignment to Hunt vested the title to their assets in him, subject to the trust, and placed the same beyond their reach. There was no hope of a surplus remaining after the debts were paid,- and until that was done they had no legal or equitable interest in the proceeds, that they could control or dispose of in any manner. Bartlett, et al., v. Tea, 1 McCrea, 176. The assignment had not been closed, and it was not known what percentage of their debts the creditors would receive. It was not believed that it would exceed twenty per cent on a final distribution. The appellant accepted this percentage before the distribution was made. It is immaterial that the assignee may have exceeded his authority in making the payment. No one has complained of this; the appellant enjoys the benefit and must stand to his agreement to discharge Reynolds and Doughty. Does this also relieve Harmon, the third partner ?
The general rule is, that the release by a creditor of one of several persons who are jointly, or jointly and severally, bound to him, is a discharge of all. Vandever v. Clark, 16 Ark., 331; Gordon v. Moore, 44 Ark., 356. And a release to one partner is a release to all.
The reasons given for the rule are, that there is but one debt, and that being once received by the party entitled to it, he has no further claim; or that the debtors have the right of contribution among themselves, and that the releasing creditor ought not to be allowed to enforce his claim against one whose remedy he has taken away. A release to have this effect, however, must contain a plain and distinct remission of the claim, and in that event parol testimony cannot be heard to show a contrary intention. Shaw v. Pratt, 22 Pick., 205; Burk v. Noble, 48 Penn. St., 168; Ellis v. Essen, 50 Wis., 138.
If the parties to the instrument cannot reasonably be supposed to have intended a release it will be construed only as an agreement not to charge the person to whom the release is given, and will not be permitted to have the effect of a technical release. 1 Pars. Cont., 23, 162; 1 Whart. Cont., Sec. 1037; 1 Lindley Part., 433-4; Addison on Cont., 1076; McAllister v. Sprague, 34 Maine, 296; Bonney v. Bonney, 29 Iowa, 448.
It is manifest from the terms of the instrument relied upon as a release here that the appellant did not intend to discharge the debt. . It expressly reserves the right of the appellant to proceed against any other person whose liability for its pay ment could be shown. Reynolds and Doughty accepted the discharge subject to this qualification. Their assent to the reservation of the creditor’s rights against their co-debtor, raises an implied agreement on their part that the right of the co-debtor to contribution against them, if it existed at all, should remain unimpaired. Bennett v. Pardieu, 63 Cal., 155; Parmelee v. Lawrence, 44 Ill., 405; Solly v. Forbes, 6 Eng. Com. Law, 27; North v. Wakefield, 13 Q. B., 541.
Since the instrument does not release the debt or impair the obligation of the co-obligors among themselves, the reason of the rule, that a discharge of one is a discharge of all, fails and the rule itself ceases. The instrument, in effect, is only a covenant to discharge the parties named, and the general rule again is that this does not release their co-obligors. Bozeman v. State Bank, 7 Ark., 328; 2 Whart. Cont., Sec. 1033.
The following cases are authorities to the effect that a discharge of one partner is not a release of others when the instrument of discharge was not so intended. Bennett v. Pardieu, 63 Cal., sup.; Parmelee v Lawrence, 44 Ill., 405; Seymour v. Butler, 8 Iowa, 304; Solly v. Forbes, 6 Eng. Com. Law, 27; See 1 Lindl. Part., 434-5.
The payment made by Reynolds and Doughty enured, of course, to the benefit of Harmon, because the debt, to that extent, was extinguished, but he can take no other benefit from the transaction.
Let the judgment be affirmed as to all the appellees except Harmon; as to him let the judgment be reversed and the case remanded for a new trial. | [
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Smith, J.-
Kinkead was charged, before a justice of the peace of Hot Spring township, in Garland county, with carrying a pistol as a weapon. He obtained a change of venue, and the cause was directed to be sent to Justice Allen, in Sulphur township. The trial took place, without objection, so far as appears, before Justice Steigler, whose docket entry recites that he was the only justice of the peace in Sulphur township. The defendant having been convicted, and having appealed to the circuit court, sought there to question the authority of Steigler to hear and determine the case, he not being the justice to whom the case was transferred. But he had jurisdiction to try the offense with which the defendant was charged; and it is too late on appeal to object to the jurisdiction over the person. Townsend v. Timmons, 44 Ark., 482; K. C., S & M. R. R. v. Summers, ante, and cases cited.
Various attempts were also made to take advantage of the form of the original warrant upon which the defendant had been arrested. It was urged that it did not specify with sufficient particularity the offense intended to be charged. The circuit court finally quashed the warrant, but gave leave to the prosecuting attorney to amend the form of it. This was superfluous, and the circuit court might well have declined to listen to such objections. The warrant had already performed its office, viz.: to bring the defendant before the justice who issued it, to be dealt with according to law. A defective statement in it of the crime for which the defendant was prosecuted, would have no effect upon the subsequent proceedings. Watson v. State, 29 Ark., 299.
Upon trial the defendant was convicted, and he now claims that he was within the exception to Section 190J of Mansfield's Digest, which provides that the statute is not to be so construed as to prohibit any person from carrying a weapon upon his own premises. The evidence showed that he was a contractor engaged in the erection of a certain building for other parties; and he was arrested in the building while in the supervision of the work, and the pistol was found upon his person. The exception only protects such as have an estate or interest in the real property which constitutes the premises. Obviously a builder, having merely a lien f®r his work and materials, has no such interest.
Judgment affirmed. | [
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Cockrill, C. J.
The appellant was indicted for murder in the first degree, committed, as was charged, by lying in wait and shooting T. J. Ferguson. The proof adduced against him at the trial was circumstantial wholly. The theory of the prosecution was that the fatal shot had been fired by one Armstrong, who was not indicted however, and that the appellant was present as an abettor. Three days after Ferguson was first missed, his body was found upon an unfrequented road with a bullet hole through a vital part. Armstrong was with the searching party that found the body. His remarks and conduct on that occasion were such as to arouse a suspicion against him and he was placed under arrest to await further developments. On the following day the inquest was held, and Armstrong was brought forward as a witness before the coroner’s jury. On this occasion his conduct and declarations deepened the suspicion of his guilt. Pending the inquest he broke from his guard, made good his escape and, as the witness stated, has not since been heard of. Upon Rowland’s trial all these criminating circumstances against Armstrong were put in evidence by the State, against Rowland’s objection; he was convicted of murder in the second degrée, and now presses the action of the court in admitting this testimony against him, as error to reverse the judgment.
It does not become necessary to recount further the testimony on which the appellant was convicted. It may be taken as true for the determination of the appeal, that a foundation was laid by proof sufficient in the opinion of the trial judge to establish prima facie, that the appellant and Armstrong had conspired together for the purpose of committing the offense charged against the former. It was incumbent upon the State to do this in order to make the acts and declarations of Armstrong done or made pending the criminal enterprise competent evidence against Rowland. Casey v. State, 37 Ark., 67; 1 Greenl. Ev., Sec. 111; People v. Stanley, 47 Cal., 113; Gove v. State, 58 Ala., 391; Priest v. State, 10 Neb., 393.
But when the deed is done and the criminal enterprise ended, the criminating conduct or declarations of one accomplice then occurring or made áre in no sense evidence against another. To be admissible for that purpose they must form part of the res gestee. Authorities, sup. It is proper to remark in this connection that Rowland was not present when any of the declarations given in evidence were made by Armstrong.
As to the flight of Armstrong, if he had been upon trial, that fact would have been a circumstance to be weighed by the jury as tending to prove a consciousness of guilt on his part. Burris v. State, 38 Ark., 221. But we are unable to perceive how the flight of an accomplice, days after the commission of the offense, can be said to tend in any degree to prove the guilt of the accused. In People v. Stanley, 47 Cal, sup., the admission of evidence of the flight of an accomplice was held to be error, and the case reversed for that reason only. See too State v. Rand, 33 N. H., 216.
If we may regard the proof as tending to show that the appellant stands in the light of a principal in the second degree as understood at common law, and Armstrong as the actor or principal in the first degree, it will not alter the case. The guilt of the former at common law did not depend upon the guilt of the principal in the first degree. He was acquitted or convicted irrespective of the guilt or innocence of the actor. The conduct and confession of the first principal were not admissible upon the trial of the second as tending to show his guilt. They were regarded as irrelevant, or as hearsay only. 2 Bish. Cr. Pr., Sec. 14; People v. Bears, 10 Cal., 68.
Our statute abolishing the distinction between principals in the first and second degree has not changed this rule. People v. Bears, sup.; Williams v. State, 41 Ark., 173.
It would be idle to consider whether the testimony could have been admitted against appellant on ,an indictment as accessory before the fact. He was indicted as principal, as the actor in the crime, and could not be convicted as accessory. Williams v. State, sup.
In no view of the case can we discover any principle upon which the evidence should have been submitted to the consideration of the jury. A presumption is raised by the record that the appellant was prejudiced by this, and his motion for a new trial should have been granted.
Reverse and remand for a new trial. | [
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Smith, J.
Chambless was indicted, on the ioth of March, 1884, for selling intoxicating liquors, “ without first procuring a license from the county court to exercise such privilege.” The indictment did not specify in what quantities the liquors were sold. He pleaded “ not guilty,” was tried and acquitted.
The testimony showed, without contradiction, that he sold whisky and beer in quantities less than one quart during the year 1883, and within twelve months next before the finding of-the indictment. He produced a license from the proper authority to sell liquors by the quart from January 1 to December 31, 1883. One witness also testified to sales of whisky in the months of January and February, 1884;-but the defendant being sworn as a witness denied any sales in 1884.
The jury were told in effect that the defendant was guilty if he had sold liquors, at any time within a year before the indictment was returned into court, without being licensed. But the court refused to charge that the defendant could be convicted under this indictment, upon proof that, having only a quart license, he had sold in smaller quántities.
Sections 4.303-12 and 4316-19 of Mansfield’s Digest provide for the issue of two kinds of licenses—one authorizing sales of liquors in quantities not less than a quart, and when the liquors are not to be consumed on the premises of the vendor; and the other being a license to keep a dram-shop. The former license does not protect the licensee in selling by the pint, half-pint and drink, as was the case here. But where-ever the quantity sold, or the place where the liquor is to be drunk, is an element of the offense, it must be alleged in the indictment. Bishop on Statutory Crimes, Secs. 1034, b, 1039; State v. Clayton, 32 Ark., 185.
The charge being general—that the defendant sold without license—the issue thus tendered was met by the exhibition of a license to sell in any quantity whatever. Without specification in the indictment as to the quantity sold, quantity becomes immaterial. The defendant should have been indicted for. keeping a dram-shop, or for selling in quantities under a quart.
As to the sales in 1884, when the defendant had no license of any sort, that waS a question of fact, which the jury, upon conflicting evidence, have determined adversely to the state. As they were properly directed, their verdict cannot be dis•turbed.
Affirmed. | [
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Smith, J.
Appellants were jointly indicted for being interested in the unlawful sale of wine to a minor, without the consent in writing of the parent or guardian of the minor, and at the September term, 1884, of the Craighead circuit court for the Jonesboro district, were tried, convicted and fined $50 each.
The proof showed that Ben. Hughes, an adult, and Levi Shirey, the minor, went to the saloon of Edgar & Dowell, the defendants, and drank over the bar. The witnesses could not remember who called for the drinks. Hughes paid for them in checks. Shirey, the minor, stated that he did not pay for them; that he was his father’s bar-keeper, and that he frequently went to saloons other than his father’s, and took drinks without paying for them, and that if those drinks were paid for by any one he did not know it; and that neither of the defendants was present.
The court instructed the jury as follows:
“2. If the jury find that the saloon at which the minor got the drink belonged to defendants, and that the sale was made by both or either, or by their clerk, agent or bar-tender, they will be held to be interested in said sale, whether made by them or their agent, and they will both be guilty in either event, whether present or not.
“3. If the jury find that Shirey, the minor, and the witness, Hughes, both went up to the counter and called for the drinks, and the bar-tender set out the drinks called for to both parties, it was a sale to both; and the fact that Hughes, after they had taken the drinks, paid for them, would not change the character of the sale, or make it a sale to Hughes only.
“4. The fact that the drinks were paid for with checks instead of money, will not alter the case. A sale may be made for money or any other thing of value, and if it appears that the drinks were sold and the bar-tender accepted their checks in payment, they will be presumed to have had a value.”
The second direction followed Robinson v. State, 38 Ark., 641. The retailing of spirituous liquors is not a natural right, but is subject to the police power of the state. Persons embarking in the business must submit to such regulations, terms and burdens as the legislature may impose for the public good.
rr., . . , TT . The evidence certainly discloses a sale to Hughes, or the minor, or to both. To.whom the sale was actually made was a question for the jury. If each ordered the drinks, it was a sale to them jointly or severally. That the minor did not pay his score, or that it was paid by his companion, or whether, in fact, it was ever paid at all, is immaterial. It was a question of sale, not of payment. Hale v. State, 36 Ark., 150.
The'fourth direction may not contain an accurate definition’ of a sale; but the defendants could not have been prejudiced. If the' checks, that are mentioned as the medium of payment, were checks on a bank, there could, of course, be no difficulty in construing them to be promises to pay. If on the contrary, as is contended in the argument here, they were mere counters or tickets sold by the defendants, worth a certain sum, and to be taken up in drinks at their bar, the jury would be warranted in inferring thaf they were the representatives of money. Stevens v. State, 3 Ark., 66; Fagan v. State, 21 Id., 390.
But the circumstance of payment is, in this case, unimportant. The sale was complete upon the delivery of the wine to the minor, pursuant to his request, and upon the understanding by the bar-tender that compensation would be made.
Affirmed. | [
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Cockrill, C. J.
After the appellant’s motion for a new trial was overruled, an order was made, giving until the first day of the succeeding term, to prepare and file a bill of exceptions. No bill of exceptions was presented or order made in the matter on that day, but on the ninth day thereafter the appellant presented a bill of exceptions to the court, which was allowed and signed, and, as the record recites, “for good cause shown, it appearing that the same was not filed within the time allowed,” it was then ordered to be filed.
The case has been placed on the easy docket, on consideration of the appellee’s motion to advance and affirm as a delay case.
Formerly it was necessary to present bills of exception for allowance at the term at which the trial was had. The statute provides now for extending the time to a day not beyond the succeeding term. Mansf. Dig., 5157. If it is extended generally, without fixing a particular day, the time expires still with the close of the term and is not extended to the end of the statutory period. Carroll v. Sanders, 38 Ark., 216. In the case of this Appellant v. Rapp, 39 Ark., 558, the circuit judge allowed a bill of exceptions on the fourth day of the succeeding term, when the time had been extended to the third day only, and the court disregarded it on appeal. The cases are numerous in this state and elsewhere to the effect that a bill of exceptions, filed after the time granted for that purpose, does not become a part of the record and will not be considered on appeal. Adler v. Conway Co., 42 Ark., 488, and cases cited. The appellant tries to distinguish this upon the ground that the circuit judge undertook to exercise a sound discretion upon cause shown for not presenting and filing his bill of exceptions within the time allotted by the court. If the circuit judge has any discretion in the matter it was exercised in the Rapp case, supra, in the act of allowing the bill of exceptions, as much as was done in this case. It appears from the statement that it was the court that acted in that case as in this; but allowing a bill of exceptions is not a judicial act. Bullock v. Neal, 42 Ark., 278. When the time is extended beyond the trial term and the day fixed allowed to pass without action, the court loses control over the matter, just as it formerly lost control by the lapse of the term, and the opportunity for allowing and filing a bill of exceptions is lost. This is the construction given the statute in Kentucky, whence ours came. Freeman v. Brenham, 17 B. Mon., 603; Vandevers v. Griffith, 2 Met., 425; Meadows v. Campbell, 1 Bush., 104; Bailey v. Villier, 6 Ib., 27; Smith v. Blakeman, 8 Ib., 476.
This construction does not interfere with the power of the court to order a bill of exceptions filed nunc pro tunc where the facts exist to warrant such an order. Kirby v. Bowland, 69 Ind., 290. That results from the power of the court to make its records speak the truth. It was said by Mr. Justice Eakin, in delivering the opinion of the court in Carroll v. Pryor, 38 Ark., 283, “Courts of Chancery are competent to relieve against any hardships arising from accident, fraud or mistake, if from any such cause the bill could not be presented in the time allowed.”
No question was attempted to be presented in the circuit court which does not depend on the bill of exceptions, and as there is no bill of exceptions which we can notice, the judgment is affirmed. | [
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John B. Robbins, Judge.
In this appeal, we are asked to review an order of the Pulaski County Circuit Court enjoining appellant from violating the terms of a covenant not to compete and from misappropriating trade secrets. We affirm, with slight modification, that part of the order pertaining to the covenant not to compete, and we reverse that part of the order pertaining to trade secrets.
Appellee Southwestern Bell Wireless (SWBW) is in the business of selling cellular phone service, sometimes referred to as cellular radio service (CRS) or commercial mobile radio service (CMRS). Its service is marketed through three primary channels: company stores, national retailers (such as Best Buy), and exclusive authorized agents. In 1997 and 1998, appellant Statco became an authorized SWBW agent for the Little Rock and Hot Springs areas, selling and promoting SWBW services exclusively in return for commissions paid by SWBW. The agency agreements executed by the parties contained a covenant not to compete in which Statco essentially promised that, for one year following termination of the agreements, it would not induce customers to choose the services of a SWBW competitor, nor otherwise sell or promote services offered by SWBW’s competitors.
Between 1997 and 2000, Statco became one of SWBW’s most successful agents, enrolling thousands of subscribers. However, disagreements arose between the two companies over compensation, and Statco notified SWBW that, beginning March 1, 2001, its stores would become “multi-line” stores, offering the services of SWBW competitors. SWBW immediately sought an injunction to enjoin Statco from misappropriating trade secrets and from violating the contractual covenant not to compete. A trial was held, and after an extensive hearing involving thirteen witnesses and seventy-one exhibits, the circuit judge agreed that Statco’s decision to market the services of competing carriers violated the covenant not to compete and violated the Arkansas Theft of Trade Secrets Act. The judge entered a twenty-eight-page letter-ruling containing her findings and entered the following order:
Statco is permanendy enjoined from violating the terms of the noncompete provisions in its agency agreements, including:
(1) Entering into any relationship with a SWBW competitor to market, sell, or distribute CMRS for a period of one year from March 1, 2001;
(2) Marketing, selling, or distributing CMRS for a SWBW competitor for a period of one year from March 1, 2001;
(3) In any manner attempting to contact a SWBW CMRS customer with the intent or purpose of inducing or encouraging that customer to change service from SWBW to a SWBW competitor;
(4) Any further misappropriation of SWBW’s trade secrets.
Statco filed a timely notice of appeal from that order, and its first argument on appeal is that the trial judge erred in ruling that the covenant not to compete had been violated.
Covenants not to compete are not favored by the law. Federated Mut. Ins. Co. v. Bennett, 36 Ark. App. 99, 818 S.W.2d 596 (1991). Nevertheless, they have been enforced in some instances. See Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999); Borden, Inc. v. Huey, 261 Ark. 313, 547 S.W.2d 760 (1977); Girard v. Rebsamen Ins. Co., 14 Ark. App. 154, 685 S.W.2d 526 (1985). The burden is on the party challenging the covenant to show that it is unreasonable. Moore v. Midwest Distrib., Inc., 76 Ark. App. 397, 65 S.W.3d 490 (2002). Covenants not to compete are reviewed on a case-by-case basis. Id. We will not reverse a trial court’s findings regarding a covenant not to compete unless the findings are clearly erroneous. Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999); Jaraki v. Cardiology Assocs., 75 Ark. App. 198, 55 S.W.3d 799 (2001). A finding is clearly erroneous when, although there is evidence to support it, we are left, upon viewing the entire evidence, with the definite and firm conviction that a mistake has been made. See Jaraki v. Cardiology Assocs., supra.
For a covenant not to compete to be enforced, three requirements must be met: (1) the covenantee must have a valid interest to protect; (2) the geographical restriction must not be overly broad; (3) a reasonable time limit must be imposed. Duffner v. Alberty, 19 Ark. App. 137, 718 S.W.2d 111 (1986). Statco does not challenge the geographic or time restrictions in the covenant. Instead it argues that: (1) SWBW had no valid interests to protect; (2) even if SWBW had valid interests to protect, the covenant was overly broad and not reasonably tailored to protect those interests; and (3) there was a failure of consideration.
Where a covenant not to compete grows out of an employment or other associational relationship, the courts have found an interest sufficient to warrant enforcement of the covenant only in those cases where the covenantee provided special training or made available trade secrets, confidential business information or customer lists, and then only if it is found that the associate was able to use the information he obtained to gain an unfair competitive advantage. Duffner v. Alberty, supra.
Statco contends that it was provided with no special training by SWBW, but the evidence was disputed on this point. Statco witnesses testified that they received only a short video training session at the beginning of their agency relationship. However, SWBW witnesses testified that agents were provided with various training opportunities, both formal and informal. Subjects of training included not only education in the products and services offered by SWBW, but in sales techniques such as closing, responding to competitors’ promotions, and preventing de-activations (churn). Conflicts in testimony are to be resolved by the trial court, and we will defer to that court’s superior position to judge and determine the credibility of witnesses. DeWitt v. Johnson, 349 Ark. 294, 77 S.W.3d 530 (2002). In any event, the furnishing of special training is just one matter to be considered under the Duffner analysis. We must also consider whether SWBW made trade secrets, confidential information, or customer list’s available to Statco.
The trial court found that SWBW had a vital interest in protecting the confidential information contained in its customer lists, agent compensation plans, written bid proposals, and marketing strategies, to which Statco had access during its agency. We do not think the trial court’s finding on this point was clearly erroneous. Customer lists have been looked upon by the courts as a most valuable asset that is especially worthy of protection, particularly in a situation, such as the one here, where an agent is servicing customers away from the principal’s place of business and builds up personal relationships that bind the customer to him instead of the principal. See Borden v. Huey, 261 Ark. 313, 547 S.W.2d 760 (1977); Girard v. Rebsamen Ins. Co., supra. The customer lists provided to Statco by SWBW contained not only the names of thousands of customers, but valuable information regarding those customers, including the customer’s contract expiration date. This is not the type of information that could be readily ascertained in another manner, such as by looking in the telephone directory. See Jaraki v. Cardiology Assocs., supra at 205. Such information would allow a competitor or a former agent to contact the customer at a time when the customer was vulnerable to changing his service provider.
Statco makes much of the fact that it, not SWBW, developed the customer list and developed relationships with the customers through its own efforts. However, it must be remembered that Statco was acting as SWBW’s agent, not on its own behalf. The agency contract recognizes that, when a subscriber is enrolled for services, the subscriber becomes a customer of SWBW.
We likewise agree with the trial court that SWBW had a protectible interest in the information contained in its agent compensation plans and bid proposals, although we recognize that its interest in those items is not as strong or as apparent as its interest in the customer list. The agent compensation plans detailed the particular manner of an agent’s compensation for various services and features sold. According to SWBW witness testimony, companies in the cellular industry do not usually know how their competitors’ agents are compensated. The witnesses also testified that a competitor who viewed SWBW’s agent compensation plans could gain considerable insight into SWBW’s pricing strategies and that the competitor could discern what products and services were being emphasized, based on incentives given for the sale of those items.
Bid proposals were the written proposals formulated when Statco would compete with other CR.S providers for corporate customers. In doing so, it would submit the proposals to SWBW for special rates, discounts, or features for the customer. SWBW would then reply, on that proposal sheet, regarding whether or not such a bid would be accepted. According to a SWBW witness, the information on some of these proposals would be considered confidential because competitors could learn how low SWBW could go on its rates and possibly discern SWBW’s average revenue per unit (ARPU) figure. Further, the bid proposals could give a competitor insight into the manner that the company deals with corporate customers.
Based on the above, we agree with the trial court that SWBW had a protectible interest in the items discussed, in partic ular the customer lists. However, Statco argues that the confidential value to SWBW of the abovementioned items is belied by SWBW’s actions in dealing with its other agents. In particular, Statco points out that (1) SWBW allowed three of its former agents to sell a competitor’s product within one year of terminating their relationship with SWBW; (2) certain confidential information in the hands of those agents was not retrieved by SWBW upon termination of the relationship; and (3) SWBW had no formal written procedures for retrieving such information from terminated agents or for monitoring an agent’s compliance with the covenant not to compete.
It is undisputed that three former SWBW agents terminated their relationship with SWBW and, when they began selling for one of SWBW’s competitors, they were not enjoined by SWBW from doing so. Two of the agents were operating under contracts with AT&T that were entered into before AT&T was acquired by SWBW. The AT&T contract had a covenant not to compete. The third agent was operating under a “McCaw” contract (a company acquired by AT&T prior to 1997), and that contract had no covenant not to compete.
Statco cites no authority for its proposition that SWBW’s failure to be diligent in enforcing the covenant against two former agents or in failing to monitor the retrieval of information from terminated agents precludes SWBW from asserting a protectible interest in the above items; nor have we found any such authority in our own research, although the extent of measures taken by a company to guard its information is a factor in determining whether a matter is a trade secret. See Conagra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). In any event, the trial court found that SWBW presented credible evidence that it took steps to protect the secrecy of the information contained in the customer lists and other items, and we do not think that finding is clearly erroneous. Agents were required to sign confidentiality agreements and abide by a code of conduct; SWBW was very careful about who it provided customer lists to; and it had a policy to retrieve confidential information from terminated agents. Further, the fact that certain agents were able to sell for a competitor did not present the same kind of risk to SWBW as the defection of a major agent like Statco. SWBW’s minor lapses in enforcement in this case do not necessarily preclude it from asserting a protectible interest in the items at issue herein.
Finally, Statco argues that SWBW could not show that Statco was able to use the confidential information to gain an unfair competitive advantage. They cite the testimony of former agents and of SWBW’s own witnesses that it would be possible for an agent to sell for a competitor without disclosing confidential SWBW information. However, the fact that such a thing would be possible does not necessarily prevent enforcement of the covenant. The question is whether Statco would be able to use the information obtained to gain an unfair competitive advantage. See Bendinger v. Marshalltown Trowell Co., supra at 417, n. 3. The very nature of the information at issue here, especially the customer lists, is such that a former agent would be able to use it to draw customers away from SWBW or assist a competitor in a manner that would be impossible had the agent not had access to the confidential information.
In light of the foregoing, we conclude that SWBW had a protectible interest sufficient to warrant enforcement of the covenant and that the requirements set forth in Duffher v. Alberty have been satisfied.
We turn now to Statco’s argument that the covenant was overly broad. The covenant reads in pertinent part as follows:
AGENT [Statco] agrees that AGENT, its officers, directors, key employees, principals, sub-AGENTS, any Affiliate or the person or persons owning a controlling interest in AGENT or an Affiliate, shall during the term of this Agreement and except as noted below, for a period of one (1) year following the later of the expiration or termination of this Agreementf:]
(1) not directly or indirectly induce, influence or suggest to any Subscriber of SWBW’s CRS to purchase any other CMRS from another Reseller or provider of CMRS in the Area;
(2) not directly or indirecdy influence or suggest to any Subscriber of any other Authorized Service to purchase a competing service from any other provider or Reseller of such competing service in the Area, whether or not the competing service is technologically the same as the Authorized Service in question;
(3) not, under any circumstances or conditions whatsoever, directly or indirectly, as an individual, partner, stockholder, director, officer, employee, manager, AGENT or dealer or in any other relation or capacity whatsoever engage in the sale or promotion of CMRS or any other Authorized Service on behalf of any competing Reseller or provider of such service in the Area[;]
(4) not, direcdy or indirecdy, allow any other person, firm, or other entity to use the name, trade name, goodwill, or any other assets or property of AGENT or SWBW in any manner in connection with such other entity’s sale of CMRS” or any other Authorized Service on behalf of a competing Reseller or provider of service in the Area, and AGENT specifically agrees not to transfer, assign, authorize or consent to the transfer of an AGENT telephone number to such a competing person, firm or other entity upon the expiration or termination of this Agreement.
Notwithstanding any language to the contrary, the restrictive covenants contained herein shall not operate so as to restrict AGENT from the business of providing or selling Paging Services.
The trial court determined that the covenant’s geographic and time restrictions were narrowly drawn and therefore reasonable. The court further found:
[SWBW] has invested its resources to enable its agency representatives to foster a relationship so that the customer will rely on its representative in making purchase decisions. Statco was intimately involved in the process of establishing personal relationships and soliciting customers. It is only fair that Statco be restrained from taking advantage of its relationship with SWBW’s customers, which were built with SWBW’s support, until SWBW has had the opportunity to foster the same relationships with Statco’s successors.
We do not find the trial court’s conclusion to be clearly erroneous because, although the covenant is broadly drawn, it is not unreasonably so.
We begin our discussion of this issue by noting that the covenant was part of an arms-length contract entered into between business entities. The covenant was a conspicuous part of the contract, and the parties agreed, by the terms of the contract, that:
[T]hey have read this Agreement and understand and accept the terms, conditions and covenants contained herein as being reasonably necessary to maintain SWBW, high standards for CRS and other services, thereby to protect and preserve the goodwill of SWBW’s CR.S, Services and its Marks.
The restraints imposed by a covenant not to compete must not be broader than necessary to protect the covenantee’s interests. See Girard v. Rebsamen Ins. Co., supra. Also, the law will not enforce a contract that merely prohibits ordinary competition. Federated Mut. Ins. Co. v. Bennett, supra. If a covenant prohibits the covenantor from engaging in activities which are unnecessary to protect the promise, the covenant is unreasonable. See Easley v. Sky, Inc., 15 Ark. App. 64, 689 S.W.2d 356 (1985). The extent of restraint in a covenant is critical in determining its reasonableness. Restatement (Second) of Contracts § 188, comment d (1981). The test to be employed is whether the restraint is reasonable as between the parties and not injurious to the public by reason of its effect upon trade. Whether or not the restraint is reasonable is to be determined by considering whether it is such as to only afford a fair protection to the interest of the party in whose favor it is given and not so large as to interfere with the interests of the public. Girard v. Rebsamen Ins. Co., supra at 159.
Statco argues that the covenant is too broad because it applies not only to Statco’s owners, officers, and directors, but also to “key employees,” a term that is not defined in the contract. It further contends that the covenant does not merely prevent solicitation of SWBW customers but prohibits Statco from directing any potential customer to another service provider. Additionally, Statco claims, the covenant precludes Statco personnel, even as stockholders, from engaging in the sale or promotion of a competitor’s service. Moreover, Statco contends that the fourth clause of the covenant would prohibit it from transferring its telephone number or subleasing its premises to a competitor.
We interpret the covenant as being aimed at protecting three SWBW interests: (1) keeping its customers from being appropriated by a former agent; (2) keeping the confidential information possessed by its agent from falling into the'hands of a competitor; and (3) protecting its name, goodwill, and assets. Our supreme court has recognized that covenants not to compete are a legitimate means of protecting a principal’s desire that a former employee not appropriate its customers. See Borden v. Huey, supra; Girard v. Rebsamen Insurance Co., supra. We conclude that the par ticular restraints objected to by Statco in this case reasonably serve that objective and the objective of preventing a competitor from acquiring confidential information.
Although the term “key employee” has no established definition, it is more restrictive than the term “employee” and indicates a reasonable desire to restrain only important Statco personnel who possess key information from competing with SWBW. As for the fact that the covenant restricts Statco from directing potential customers to a competitor or from promoting a competitor’s product as a stockholder, these restrictions legitimately restrain Statco from serving the interests of SWBW’s competitors, which could lead to the sharing of confidential information with those competitors. Likewise, SWBW would have an understandable desire that its agent’s telephone number and place of business not become a means by which its customers could inadvertently fall into the lap of a competitor.
When these premises are considered, we disagree with Statco that the terms of the covenant are overly broad. We also note that, even though the one-year time restraint is not challenged on appeal, the fact that the covenant’s restraints apply only for a one-year period buttresses our view that the covenant is not unreasonable in its scope.
Statco further argues that there were other less restrictive means that SWBW could have employed to protect its interests. It points out that the agency contract contained restrictions on Statco’s activities, such as a restriction against divulging customer lists and a mandate to return SWBW marketing materials upon termination of the contract. Further, Statco argues that SWBW could simply have included a non-diversion clause in the contract, prohibiting Statco from diverting SWBW customers following termination. -
Statco’s- argument would apply to invalidate virtually every covenant not to compete and, as we have already pointed out, such covenants may be enforceable. A reasonably drawn covenant not to compete is an effective means by which a principal may protect its customers and its confidential information from appropriation and use by former agents or competitors. While the alternative methods suggested by Statco could be of some use, they do not substitute for a temporary ban on competitive activity, which assures the principal that its interests will not be compromised. We therefore affirm the trial court’s finding that the covenant in this case was reasonably drawn.
Next, Statco argues that, because the right to use SWBW marks was a consideration for it signing the covenant not to compete, that consideration failed when SWBW began to market its product under the name “Cingular.” We disagree. First, the trial judge made no ruling regarding consideration. Even if a matter is pled, we will not address it if it was not brought to the trial judge’s attention for a ruling. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). Second, as the covenant recites, there was consideration for the covenant other than the use of the SWBW marks. Third, SWBW did not begin using the Cingular name in public until after Statco had sent the letter notifying SWBW that it would begin selling competitive products.
The final issue concerns the trial court’s finding that Statco misappropriated SWBW’s trade secrets. A trade secret is information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Ark. Code Ann. § 4-75-601(4) (Repl. 2001). Arkansas courts rely on six factors to determine whether something is a trade secret: (1) the extent to which the information is known outside the business; (2) the extent to which the information is known by employees and others involved in the business; (3) the extent of measures taken by plaintiff to guard the secrecy of the information; (4) the value of the information to plaintiff and its competitors; (5) the amount of effort or money expended by plaintiff in developing the information; and (6) the ease or difficulty with which the information could properly be acquired by others. See City Slickers, Inc. v. Douglas, 73 Ark. App. 64, 40 S.W.3d 805 (2001). To be entitled to injunctive relief, actual or threatened misappropriation must be shown. Ark. Code Ann. § 4-75-604 (Repl. 2001). Misappropriation means:
(A) Acquisition of a trade secret of another person who knows or has reason to know that the trade secret was acquired by improper means; or
(B) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(i) Used improper means to acquire knowledge of the trade secret; or
(ii) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
(a) Derived from or through a person who had utilized improper means to acquire it;
(b) Acquired it under circumstances giving rise to a duty to maintain secrecy or limit its use; or
(c) Derived from or through a person who owed a duty to the person seeking relief to maintain secrecy or limit its use; or
(iii) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
Ark. Code Ann. § 4-75-601(2) (Repl. 2001).
Even if the information acquired by Statco during the course of its agency qualifies as a trade secret, the record is bereft of any evidence that Statco has, or has threatened to, improperly misappropriate a trade secret. Nevertheless, an injunction may issue if there is evidence that an inevitable misappropriation will occur. See Cardinal Freight Carriers, Inc. v. J.B. Hunt Transp. Servs., Inc., 336 Ark. 143, 987 S.W.2d 642 (1999). We do not believe there is enough evidence in this case to support a finding of inevitable misappropriation. Statco has given no indication that it will disclose trade secrets, nor is there any evidence that it must necessarily do so to conduct its business. As mentioned earlier, there was testimony that a former agent could work for a competitor without using confidential information regarding his former principal.
Based on the foregoing, we affirm the trial judge’s finding that Statco violated the covenant not to compete, and we reverse her finding that Statco violated the trade secrets act. We also modify the third part of the trial court’s judgment to add the following phrase at the end of the clause: “for a period of one year from March 1, 2001.”
Affirmed in part as modified; reversed in part.
Stroud, C.J., and Pittman, Hart, and Bird, JJ., agree.
Griffen, J., dissents in part.
As for SWBW’s marketing strategies, these were contained in marketing bulletins sent by SWBW to its agents. The bulletins communicated SWBW’s upcoming promotions as well as strategies for dealing with competitors’ promotions. SWBW acknowledged that much of the information contained in the bulletins could be discovered by competitors through “shopping,” i.e., calling and pretending to be a customer and that much of the information would lose its confidential status over the passage of time, for example in the case of bulletins that announced upcoming promotions. We agree with Statco that SWBW had no protectible interest in the marketing bulletins but, given our holding that a protectible interest existed in the customer lists, compensation plans, and bid proposals, the operative provisions of the trial court’s judgment are not affected.
But see Rector-Phillips-Morse v. Vroman, 253 Ark. 750, 489 S.W.2d 1 (1973), where the court discounted the confidential nature of certain information when twenty-three of thirty-one former RJPM salesmen would have been permitted to compete with R.PM and use the information. However, that scenario is far beyond the scope of what occurred here.
Statco points out that the trial court did not specifically rule on whether certain particular provisions of the covenant rendered it unreasonably broad. Were we to fully agree with that characterization of the court’s findings, we would decline to address the issue. It is the appellant’s burden to obtain a ruling from the trial court and, in the absence of such a ruling, we do not reach the issue involved. See Kangas v. Neely, 346 Ark. 334, 57 S.W.3d 694 (2001). However, our reading of the overall findings and conclusions by the trial judge convinces us that she considered the covenant reasonable in all respects. Thus, we will reach the merits of this point. | [
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John Mauzy Pittman, Judge.
The appellee in this worker’s compensation case was struck by a cart and injured while she was returning her purse to her locker after a scheduled break. Wal-Mart denied her worker’s compensation claim on the ground that she was not performing employment services at the time of the injury, later adding an allegation that her injury was not supported by objective medical findings. The Commission found that appellee had in fact been performing employment services when she was injured and that her injury was supported by objective medical findings. Wal-Mart appeals from the award of benefits to appellee.
For reversal, Wal-Mart contends that the Commission erred in finding that appellee was engaged in employment services when she was injured and in finding that appellee established her injury by medical evidence supported by objective findings. We affirm.
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Daniels v. Arkansas Department of Human Services, 77 Ark. App. 99, 72 S.W.3d 128 (2002). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).
Viewing the evidence in the light most favorable to the Commission’s findings, the record shows that appellee was employed as a cashier by Wal-Mart. To prevent employee theft, Wal-Mart prohibited cashiers from having any personal items other than a pen (for customer use) at the cashier station. All other personal items were to be kept in the employee’s locker. On the day in question, appellee secured her personal possessions as required by the employee handbook that she signed at orientation, and reported to her cashier station. She worked until it was time for her regularly-scheduled fifteen-minute break, and, after placing her cash drawer in a safe under a supervisor’s observation as required by Wal-Mart policy, she clocked out and returned to her locker, where she retrieved her cigarettes, lighter, and money for a soda. She then went to the designated breakroom where she purchased a soda and smoked a cigarette. When she finished her break, she returned to her locker to secure her personal items as she was required to do before returning to her cash register. As she was squatting to do so, another employee struck her in the back with the corner of a heavily-laden cart. Appellee clocked back in and immediately reported the injury to her supervisor.
Wal-Mart argues that appellee’s injury was not compensable because she was not performing employment services at the time of her injury. We disagree. Pursuant to Ark. Code Ann. § 11 —9—102(4)(b)(iii) (Repl. 2002), an injury inflicted upon the employee at a time when employment services were not being performed is not compensable. The phrase “employment services” is not defined by statute, but has recently been interpreted by the supreme court. In an opinion expressly overruling all inconsistent prior opinions, the supreme court said that:
Since 1993, we have twice been called upon to construe the statutory language found in sections 11-9-102 (4) (A) (i) and 11 — 9— 102(4)(B)(iii). See White v. Georgia-Pacific Corp., supra, and Olsten Kimberly Quality Care, supra. We have held that an employee is performing “employment services” when he or- she “is doing something that is generally required by his or her employer. . . .” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100. We use the same test to determine whether an employee was pe forming “employment services” as we do when determining whether an employee was acting within “the course of employment.” White v. Georgia-Pacific Corp., supra; Olsten Kimberley, supra. The test is whether the injury occurred “within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100 and Olsten Kimberly, supra.
Collins v. Excel Specialty Products, 347 Ark. 811, 816-17, 69 S.W.3d 14, 18 (2002) (emphasis supplied). Here, there was evidence that appellee, although clocked out, was in the middle of her shift and preparing to return to work from a break; that the injury occurred on Wal-Mart’s premises at a place designated for appellee’s use; and that, at the moment she was injured, appellee was returning her personal items to her locker as required by Wal-Mart as an integral part of a rather elaborate loss-prevention system designed to prevent employee theft. On this record, reasonable minds could quite clearly find that the injury occurred within the time and space boundaries of the employment, while appellee was carrying out Wal-Mart’s purpose or advancing Wal-Mart’s interest, and we therefore hold that the Commission did not err in finding that appellee was performing employment services at the time she was injured.
Wal-Mart also argues that the Commission erred in finding that appellee established her injury by medical evidence supported by objective findings. We do not agree. Appellee was treated for a back injury. There was evidence that she experienced muscle spasms. Muscle spasms reported by a physician or occupational therapist have been held to fulfill the requirement of objective findings imposed by Ark. Code Ann. § 11-9-102(16) (Repl. 2002). Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). Furthermore, Wal-Mart concedes that an MRI examination revealed a bulging disc at L4-5, as noted by the Commission, but argues that this does not constitute an objective finding because there was some medical evidence to show that an injury such as that sustained by the appellee would not normally result in a disc bulge. However, this argument goes to the weight of the evidence rather than to its sufficiency. It is well-established that the determination of the credibility and weight to be.given a witness’s testimony is within the sole province of the Workers’ Compensation Commission; the Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). The Commission has the duty of weighing the medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). On this record, we cannot say that the Commission erred in finding that appellee established her injury by medical evidence supported by objective findings.
Affirmed.
Neal, J., agrees.
Griffen, J., concurs. | [
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Josephine Linker Hart, Judge.
Paul Riley appeals the trial court’s order to rescind a written contract for the sale of real estate. For reversal, appellant argues that: (1) the trial court failed to state the appropriate standard of proof and should have stated whether it specifically found that appellees had proven the elements of fraudulent misrepresentation by clear and convincing evidence; (2) the appellees did not prove all the elements of their claim for fraud; (3) the property had been altered by appellees in such a manner that upon rescission the parties could not be restored to the positions they held prior to the contract; (4) the trial court erred in determining the amount appellant should pay to appellees because the amount reflected the purchase price together with the carpet allowance and that amount should have been reduced by the fair rental value of the property during the time it was occupied by appellees. We affirm the trial court on appellant’s first three points and reverse and remand on the fourth point.
On July 6, 1999, appellant, as seller, and Guy and Kay Hois-ington, appellees, entered into a real-estate contract for the sale of a house located in Bella Vista for $132,500. On July 9, 1999, the parties executed a second real-estate contract that increased the purchase price to $136,000. The increased price included a “carpet allowance” that enabled appellees to purchase new carpet and pay appellant the original sale price of $132,500 for the house. Appellant provided appellees with a “disclosure statement” between July 6 and July 9, 1999, in which he stated that there had not been any “flooding, drainage, grading problems . . .’’on the real estate. The parties closed the transaction on July 16, 1999.
During June of 2000, appellees discovered several inches of water in the basement. Two days later, the basement flooded a second time. In February of 2001, when the basement flooded for the third time, appellees filed suit against appellant and Mitchell Erwin, d/b/a National Property Inspections. Appellees sought rescission of the contract and compensatory damages for expenses incurred as a result of the flooding and for other expenses, to include but not limited to, mortgage payments, taxes, and insurance.
Following a trial on November 22 and 30, 2001, the trial court made the following findings: (1) that appellant made a false representation of material fact when he indicated on the disclosure statement that there had not been any flooding regarding the real estate; (2) that appellant was aware of the falsehood of the representation; (3) that appellant knew the false representation would be relied upon by potential buyers of the real estate; (4) that appellees were justified in their reliance upon the misrepresentation by appellant; (5) that appellees were damaged as a result of their reliance upon the misrepresentation. The trial court granted rescission and entered a judgment for damages. The order required appellant to tender the contract price of $136,000 to appellees, and in addition awarded appellees a judgment in the amount of $3,154.56 for the damages. From that order comes this appeal.
We review equity cases de novo. Flowever, we will not reverse a finding of fact of the trial court unless the trial court was clearly erroneous. Weigh Sys. South, Inc. v. Mark’s Scales & Equip., Inc., 347 Ark. 868, 68 S.W.3d 299 (2002). A finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been made. Id.
At trial, both appellees testified that the purchase price of the home was increased from $132,500 to $136,000 to allow for a “carpet allowance” of $3,500 to be paid to appellee. Appellees stated that Mitchell Erwin was hired to perform an inspection of the home, and they relied on his inspection report. Erwin’s report did not indicate a problem with regard to the soil settlement or flooding of the real estate. Appellees also received a “disclosure statement” from appellant during the time between July 6 and July 9, 1999. In that statement, appellant answered, “No,” when asked if there “had been any flooding, drainage, grading problems, or has water ever stood on the [pjroperty or under any improvement constructed thereon?” Appellees testified that they relied on the disclosure statement given by appellant. Specifically, Mr. Hois-ington attested that they would have looked for another home had appellant disclosed that water had come into the basement through a crack in the floor.
Accordingly, Mrs. Hoisington testified that the first incident of flooding in the basement occurred around the end of June 2000 when she discovered the entire downstairs area completely engulfed in approximately four inches of water. After the couple unplugged electrical devices and attempted to ascertain the source of the water, Mr. Hoisington telephoned appellant and told him there was water in the basement and inquired about plumbers. Mr. Hoisington testified that appellant came by the house the following day and wanted to know if the water had come into the basement through a crack in the floor as it had previously. According to Mr. Hoisington, he and appellant discussed the repairs made by appellant when water had forced its way into the basement through a crack in the foundation. Mr. Hoisington stated that when he made reference to the disclosure statement, appellant conceded that there had been a problem with the floor.
Appellees testified that after the flooding incidents, they hired Wizard Cleaners, a water extraction company, to clean the basement. Further, they purchased a sump pump to remove the water, and after drying the carpet, they were required to replace the carpet pad. After observing mold growing behind the walls, appellees removed the paneling, treated the walls with mold control, and repainted them.
Appellant testified that he had previous water-drainage problems in 1984 and in 1994 or 1995. According to appellant, in 1984, after water had come into the bathroom in the basement, he had a French drain dug in the back of the house to divert water. After the installation and repairs, appellant denied having any further problems until 1994 or 1995 when water came up through a crack in the floor and soaked the entire carpet in the basement. Appellant repaired the crack and had no further flooding problems. Appellant testified that after learning of the flooding in their basement, he had visited the appellees and had discussed with them the previous water damage and the crack in the floor.
Appellant argues for his first point that the trial court erred when it did not specifically find that appellees had proven the tort of fraudulent misrepresentation by clear and convincing evidence. Appellant asserts that at trial, counselors for both parties were instructed to prepare briefs to include the issue of whether appellees were required to prove the elements of fraudulent misrepresentation by clear and convincing evidence or by a preponderance of the evidence. However, the order by the trial court did not specify which standard it adopted in analyzing the evidence.
In Strout Realty, Inc. v. Burghoff, 19 Ark. App. 176, 718 S.W.2d 469 (1986), this court held that when the plaintiff is attempting to overturn a solemn written instrument by proof which alters the written terms of the contract, he must prove the fraudulent misrepresentations by clear and convincing evidence; otherwise the fraud need only be proved by a preponderance of the evidence. Clear and convincing evidence is that degree of proof which produces in the factfinder a firm conviction as to the allegation sought to be established; it is not necessary that the evidence be undisputed to be clear and convincing, so long as it imparts a clear conviction to the mind of the factfinder. Strout, supra (citing Kelly v. Kelly, 264 Ark. 865, 575 S.W.2d 672 (1979)).
In our view, the facts and pleadings of this case required appellees to prove their case by clear and convincing evidence. Even applying the higher standard, we cannot say that the trial court clearly erred. There is sufficient evidence based on the testimony of the witnesses from which the trial court could find that appellant made a fraudulent misrepresentation to the appellees. The evidence demonstrates that appellant conceded that he made a false representation on the disclosure statement and that he was fully cognizant that his statement was not true. Furthermore, appellant conceded that it was reasonable for a potential buyer to rely on the false statement. Moreover, his effort to sell the house established that he intended for the statement to be relied upon. Testimony from both appellees established their reliance on the disclosure statement and damages that resulted from their reliance. Therefore, we affirm the trial court on this point.
For his second argument, appellant asserts that the trial court erred by determining that appellees had proven that appellant intentionally misrepresented the condition of the property and that appellees relied on this misrepresentation to their detriment. Appellant contends that his testimony regarding the difference in the water damage he experienced and that of appellees did not indicate that he intentionally failed to inform appellees of the more severe flooding problems experienced by appellees. Thus, he had no reason to foresee the need for disclosure of his flooding problem. As the basis of his argument, appellant relies on the trial court’s finding that appellees did not prove that appellant “intentionally pursued a course of conduct for the purpose of causing injury.”
Our supreme court has stated that “we have many times held fraud even in the complete absence of any moral wrong or evil intention.” Cardiac Thoracic & Vascular Surgery, P.A. Profit Sharing Trust v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992)(quoting Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987)). In Cardiac Thoracic the court discussed Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965), as follows:
The Lane case also involved an action to rescind a sales contract, cancel a deed, a note and a mortgage and for the recovery from the Seller of the amount paid by the Purchaser on the purchase property. It appeared that the seller, or the seller’s representatives, had represented to the buyer that the house in question had an adequate foundation to support its weight. That later proved to be untrue, the house settled and substantial damage resulted, followed by the action to rescind. The seller’s defense was that he was unaware of the subsoil conditions which apparently caused the settling and that the assurances given to the prospective purchaser were therefore not fraudulently made. In reversing the trial court in that case and in holding for the purchaser, this Court said:
“To rescind a contract based upon fraud, it is not necessary that actual fraud exist. It is well setded that representations are construed to be fraudulent when made by one who either knows the assurances to be false or else not knowing the verity asserts them to be true. (Citing cases). In 37 C.J.S. Frauds, § 2, Pg. 211, constructive fraud is succincdy defined as ‘a breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because its tendency to deceive others *** Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud’. [Emphasis in original]
In the case at bar it is undisputed that the [purchasers] relied, to their detriment, upon the statements and assurances made to them by the [sellers] and these statements proved to be untrue. [Sellers] lack of knowledge of these material representations asserted by them to be true is no defense nor can liability be escaped by their good faith in making the representations.” [239 Ark. 400 at 404, 389 S.W.2d 621],
Interestingly, as an additional or alternative basis for its decision, the Lane Court also invoked the maxim that if two innocent parties must suffer, the burden must be borne by the one who induced the loss and found that the seller’s conduct and assurances induced the loss suffered by the purchasers in that case. That reasoning and that holding might also be apropos to this case.
Cardiac Thoracic, supra, at 804-05, 840 S.W.2d at 191-92.
To establish fraud, five elements must be proven: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; (5) damage suffered as a result of the reliance. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002).
Appellant acknowledged that information regarding the 1984 and mid 1990’s flooding incidents was not revealed in the disclosure statement. Notably, appellant conceded in his testimony that the information in the disclosure statement was not correct and that it was reasonable to expect potential buyers to receive and rely on the information provided. Furthermore, appellant concedes in his argument that it is undisputed that appellees have been damaged as a result of the flooding. The testi mony of both appellees demonstrated that they relied upon the disclosure statement of appellant. Therefore, evidence existed that appellant intended to misrepresent the condition of the property to appellees and that the appellees relied upon the misrepresentation to their detriment.
Third, appellant argues that the trial court erred when it rescinded the real-estate contract because appellees had made alterations to the property that prevented the parties from being restored to their respective positions prior to the contract. “It is generally recognized that in an action for rescission of a contract in a court of equity, the court applies equitable principles in an attempt to restore the status quo or place the parties in their respective positions at the time of the sale.” Cardiac Thoracic, supra (citing Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292 (1976)). This court held that “rescission will be granted only when the party asking for it restores to the other party substantially the consideration received.” Strout Realty, 19 Ark. App. at 186, 718 S.W.2d at 474.
Testimony by appellees established that following the sale, they installed new carpet and replaced the floor covering in the kitchen area with ceramic tile. They installed new light fixtures and ceiling fans, updated the bathrooms, and enclosed a doorway from an upstairs bedroom and cut a new doorway in the hall. Despite the modifications, the house remained substantially the same structure as it had been when appellant sold it to appellees. We cannot say that the trial court was clearly erroneous in finding that upon rescission appellees restored to appellant substantially the consideration they received. Therefore, we affirm on this point.
As part of his fourth argument, appellant contends that the trial court erred in determining the amount of the judgment granted to appellees because the amount included both the purchase price and the carpet allowance. It is undisputed that the original purchase price was $132,500 and that the contractual amount was increased to $136,000 to include the $3,500 “carpet allowance.” Testimony of both parties establishes that appellees paid appellant the original purchase price. Further, Mr. Hois- ington testified that he received a separate check for $3,500 at the time of closing. There was no evidence as to the actual amount appellees paid for the installation of new carpet. The supreme court held that a purchaser was entitled to recover his good faith expenditures even though they added nothing to the present value of the premises. Ballard v. Carroll, 2 Ark. App. 283, 621 S.W.2d 484 (1981) (citing Massey v. Tyra, 217 Ark. 970, 234 S.W.2d 759 (1950)).
As the second component of appellant’s fourth argument, he asserts that the trial court erred by failing to reduce the amount of judgment by the fair rental value of the property during the time it was occupied by appellees. In Cardiac Thoracic, supra, the supreme court stated that a purchaser entitled to rescission has some obligation to the vendor for the purchaser’s possession and/or use of the property in question. Further, the supreme court endorsed the proposition that, in a rescission action, the requirement that the “purchasers” pay rent to the “seller” for the time the property is occupied is equitable. Cardiac Thoracic, 310 Ark. at 807, 840 S.W.2d at 193 (citing Bates v. Simmons, supra).
Although we agree with appellant that the inclusion of the “carpet allowance” in the contract price for rescission was error, we do not hold that appellees cannot recover the purchase price of the carpet and the other costs expended on the home. The payment of interest and principal, the purchase price of the carpet, and the costs of other home improvements and repairs required by the floods are recoverable. However, the expenditures can be offset by the fair rental value of the property for the time period appellees occupied the premises. We conclude that the trial court should have taken into consideration the law as set forth in Cardiac Thoracic and Massey; therefore, we reverse and remand on this issue for further findings consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Stroud, CJ., and Griffen, J., agree.
The trial court awarded judgment, jointly and severally, against appellant and separate defendant Mitchell Erwin, who had performed an inspection on the house for appellees. The trial court found the damages to be the result of appellant’s fraud and Erwin’s negligence. However, Erwin did not appeal the judgment. | [
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John Mauzy Pittman, Judge.
This is an underinsured motorist coverage case. Appellants Glenn and Elizabeth Hisaw filed suit in Carroll County Circuit Court seeking coverage under five separate State Farm policies, two issued to Glenn Hisaw personally and the other three issued to the Inspiration Point Volunteer Fire Department, of which Hisaw was chief. The trial court granted summary judgment to State Farm, ruling that the Hisaws were not entitled to coverage under any of the policies. We affirm the court’s ruling on the fire department policies but reverse and remand as to Hisaw’s personal policies.
On July 2, 1996, Glenn Hisaw received a radio dispatch regarding a one-car accident in Carroll County. He drove to the scene in his personal vehicle and began to render assistance as required. The accident involved a van driven by Clarence Struthers. Struthers had driven the van off the road, and it came to rest at a downhill angle among a stand of trees. It was later determined that Struthers had a blood-alcohol content of .213.
After Hisaw had assisted in removing Struthers from the scene, he returned to the van to obtain its registration information. One of the van’s side doors (which opened toward the back of the van) had been left ajar. As Hisaw stood beside the van, the door closed, due to the effects of gravity, and struck him. Although Hisaw continued with his duties at the scene, he later sought medical attention for neck and back injuries.
In 1997, Hisaw and his wife sued Struthers and settled for Struthers’s policy limits of $25,000. The Hisaws then sued State Farm for underinsured-motorist (UIM) benefits on the five abovementioned policies. With regard to the three fire department policies, State Farm contended that Hisaw was not an insured. With regard to all five policies, State Farm asserted that no coverage was owed because Hisaw’s injuries were not “caused by accident arising out of the operation, maintenance or use of an underinsured motor vehicle.” The trial judge agreed with State Farm and entered summary judgment in its favor on all policies. The Hisaws appeal from that ruling.
On appellate review of a summary judgment, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Sweeden v. Farmers Ins. Group, 71 Ark. App. 381, 30 S.W.3d 783 (2000). The moving party always bears the burden of sustaining a motion for summary judgment. Id. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Id. In a case where there are no disputed facts, our review focuses on the trial court’s application of the law to the facts. Id.
The language in an insurance policy is to be construed in its plain, ordinary, and popular sense. Norris v. State Farm Fire & Cas. Ins. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). It is to be construed strictly against the insurer, who chooses its language. See id. The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). If the language employed in the policy is ambiguous or there is doubt and uncertainty as to its meaning and it is fairly susceptible to two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Id.; Home Mut. Fire Ins. Co. v. Jones, 63 Ark. App. 221, 977 S.W.2d 12 (1998).
We first explore Hisaw’s status as an insured under the three fire department policies. The policies were issued on three separate vehicles and provided $100,000/$300,000 UHVb coverage. Although the record does not contain the declarations pages for these policies, the policy certifications state that the named insured was the “Inspiration Point Volunteer Fire Association” and that Glen Flisaw ,was not listed as a driver or named insured. The policy language defined an insured for UIM purposes as follows:
Insured — means the person or persons covered by . . . under-
insured motor vehicle This is:
1. The first person named in the declarations;
2. His or her spouse;
3. Their relatives; and
4. Any other person while occupying:
a. Your car, a temporary substitute car, a newly acquired car or a trailer attached to such a car. Such vehicle has to be used within the scope of the consent of you or your spouse; or
b. A car not owned by you, your spouse, or any relative, or a trailer attached to such a car. It has to be driven by the first person named in the declarations or that person’s spouse and within the scope of the owner’s consent.
Such other person occupying a vehicle used to carry persons for a charge is not an insured.
5. Any person entitled to recover damages because of bodily injury to an insured under 1 through 4 above.
The trial court ruled that Glenn Flisaw was not a named insured under the policies, nor did he fit into any of the categories listed above. Flisaw does not quarrel with that specific ruling, but he argues that he should be considered an insured by virtue of the fact that he was a member of the Inspiration Point Volunteer Fire Association. He cites Baskins v. United Mine Workers, 150 Ark. 398, 234 S.W. 464 (1921), for the proposition that an unincorporated association has no legal identity distinct from that of its members. In light of that holding, he contends, if an unincorporated association is a named insured, its members are necessarily insureds.
We do not believe that the facts necessary to a resolution of this argument were sufficiently developed below. Although Hisaw argued during the summary judgment hearing that the firefighters and the association were one and the same, he did not specifically contend that the fire department was an unincorporated association. As a result, the record contains no information as to how the fire department was organized. Further, the trial court made no ruling regarding the organization of the fire department. Because these important gaps in the development of this issue exist, we decline to consider it as a basis for reversal. Our courts have said numerous times that we will not consider an issue that was not fully developed at the trial level. See Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994); Hastings v. Planters & Stockmen Bank, 307 Ark. 34, 818 S.W.2d 239 (1991); Lee v. Hot Springs Village Golf. Sch., 58 Ark. App. 293, 951 S.W.2d 315 (1997). Therefore, we will not reverse the trial court’s grant of summary judgment to State Farm on the three fire department policies.
We turn now to Hisaw’s two personal policies, each of which provided $50,000/$100,000 in UIM benefits. The UIM coverage parts read as follows:
We will pay for damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an underinsured motor vehicle, (underlined emphasis added).
At the time Hisaw sustained his injury, the “underinsured motor vehicle” (the Struthers van) was stationary, having been wrecked thirty minutes to two hours earlier. The van’s operator was no longer at the scene. Hisaw was not attempting to operate or move the van, but was merely standing beside it when one of the doors closed on him and injured him. The question is whether, given those facts, Hisaw’s injury was “caused by an accident arising out of the operation, maintenance or use of” (hereafter referred to for convenience as simply the use of) the van.
The phrase “arising out of” has been given a broad meaning by the courts. See 6B John Appleman, Insurance Law and Practice § 4317 (1979). It is a general and comprehensive phrase that means originating from, growing out of, or flowing from. Allied Mut. Ins. Co. v. Action Elec. Co., 256 Neb. 691, 593 N.W.2d 275 (1999). To “arise out of” the use of a vehicle, a victim’s injuries need not rise to the level of being proximately caused by the use of the vehicle; it is enough that “but for” causation, i.e., a cause and result relationship between the use of the vehicle and the injuries, exists. See State Farm Mut. Auto. Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978).
An example of the comprehensive application of such policy language may be seen in Owens v. Ocean Accident and Guarantee Corp., 194 Ark. 817, 109 S.W.2d 928 (1937). There, the supreme court addressed a similar policy provision that required the victim’s injuries to be “caused by the ownership, maintenance, or use of” the insured vehicle. The insurer had issued a liability policy to a funeral home that owned an ambulance. While on a call, an ambulance attendant went into a woman’s home, placed her on a cot, and negligently permitted her to slide ofF before she was placed in the ambulance. The insurer contended that the woman’s injuries were not caused by the use of the vehicle. The supreme court held that carrying the woman from her home to the ambulance was an essential transaction in connection with the use of the automobile as an ambulance and thus allowed coverage.
We agree with Hisaw that, under the broad interpretation required by our supreme court, there was a causal connection between Struthers’s use of the van and Hisaw’s injuries. But for Struthers’s use and operation of the van in such a manner as to drive it off the road, Hisaw would not have responded to the accident, undertaken his official duties, and ultimately received his injuries. Further, the fact that his injuries were inflicted by the underinsured vehicle itself takes this case out of the realm of those decisions in which the vehicle was the mere situs of an injury that could just as easily have occurred elsewhere. See, e.g., Carter v. Grain Dealers Mut. Ins. Co., 10 Ark. App. 16, 660 S.W.2d 952 (1983) (holding that victim’s injuries did not arise out of the use of a motor vehicle when the victim received injuries from a gun fired in the vehicle).
In light of the foregoing, we reverse the trial court’s entry of summary judgment to State Farm on Hisaw’s personal insurance policies and hold that Hisaw’s injuries arose out of the operation, maintenance, or use of the underinsured vehicle.
Appellants also contend that the trial court erred in granting summary judgment on Mrs. Hisaw’s loss-of-consortium claim. State Farm argued below that Mrs. Hisaw could not recover for loss of consortium under any of the five policies because the policies only pay UIM benefits for “bodily injury,” defined as follows: “bodily injury to a person and sickness, injury, or death which results from it.” The trial court, having determined that no coverage was owed under the policies for other reasons, never made a ruling on this issue. Therefore, we need not address it on appeal. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). However, we do point out that two provisions contained in Hisaw’s personal policies may be relevant to this issue on remand. The policies provide that the UIM “each person” amounts fisted on the declarations page is the amount for all damages due to bodily injury to one person, which “includes all injury and damages to others resulting from this bodily injury.” (Emphasis added.) Further, the UIM definition of an insured includes, in paragraph five, any person entitled to recover damages because of bodily injury to an insured.
For the reasons stated, we reverse and remand this case on issues pertaining to Hisaw’s personal policies and affirm on the issues pertaining to the fire department policies.
Affirmed in part; reversed and remanded in part.
Stroud, C.J., and Robbins, J., agree.
Bird, Crabtree, and Baker, JJ., concur in part and dissent in part.
The UIM coverage part on one of the policies was similar, but it did not include the words “sustained by an insured” on the third line. This difference in definitions is not important to the issues on appeal.
The passage of a few hours between the van being driven off the road and Hisaw’s injury has no bearing on the causal relationship between Struther’s negligence and Hisaw’s injury:
[A] tort-feasor is answerable for the consequences of wrongful conduct despite the occurrence of an intervening cause of harm so long as the intervening cause is foreseeable. Furthermore, if the intervening cause is merely incidental, having been set in motion or made effective by the first cause, and it is not a new and independent force sufficient of itself to cause the injury, the law passes it and traces the wrongful act which put it in operation.
86 C.J.S. Torts § 30 (1997). It was perfectly foreseeable that, after Struthers became intoxicated and drove his van off the road, down a slope, and into the trees, that someone would be required to investigate the accident scene and remove the vehicle. The angle at which Struthers’s vehicle came to rest, and the force of gravity acting upon it, were indisputably set in motion and made effective by Struthers’s negligence, and our focus is therefore upon Struthers’s wrongful act, which put these forces into operation. Indeed, the Arkansas Supreme Court has held that, in the absence of an effective intervening cause, the lapse of even so much as a month between the negligent act and the resulting injury is not fatal as a matter of law to the recovery of damage. See, e.g., Leek v. Brasfield, 226 Ark. 316, 290 S.W.2d 632 (1956).
Judge Baker’s dissent is concerned with our holding on this point as a matter of law. However, in the absence of disputed extrinsic evidence (of which there is none in the present case), the construction and legal effect of a written contract is a matter to be determined by the court, not by the jury. Smith v. Prudential Prop. & Cas. Ins., 340 Ark. 335, 10 S.W.3d 846 (2000), overruling Farm Bureau Mut. Ins. Co. v. Whitten, 51 Ark. App. 124, 911 S.W.2d 270 (1995). We perceive no disputed facts submitted by the parties to support their interpretation of the policy language. Therefore, the legal effect of the contract is a question of law. See Smith v. Prudential Prop. & Cas. Ins. Co., supra.
Appellants make a final argument that the trial court erred in mentioning that Mr. Hisaw was not a pedestrian at the time he was injured. We doubt that the court’s remark had any effect on its ultimate ruling. In any event, considering our holding in this case, the remark has no bearing on the outcome of the case and need not be addressed as a basis for reversal. | [
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Olly Neal, Judge.
On December 20, 1991, appellant pleaded guilty to robbery. He was placed on ten years’ supervised probation and ordered to pay fines and costs. On December 14, 2001, the State filed a petition to revoke appellant’s probation. Appellant was sent a notice of hearing and a copy of the Petition for Revocation by United States mail on December 19, 2001. A hearing was held on December 31, 2001. Appellant objected to the jurisdiction of the court to hear the revocation hearing on the basis that the court could not, after the expiration date of the probationary period, revoke appellant’s probation because he was neither arrested nor was a warrant issued for his arrest on the revocation petition prior to the expiration of the probation period. The trial court rejected this argument and extended appellant’s probation for an additional five-year period. This appeal followed.
On appeal, appellant argues that “[t]he circuit court erred in not dismissing the petition for revocation where the probationary term had expired and the State failed to arrest the appellant or issue an arrest warrant during the period of probation as required by Ark. Code Ann. § 5-4-309(e)(1987).” We agree; therefore, we reverse and dismiss.
A plea of guilty, coupled with a fine and probation, constitutes a conviction. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002). It is well settled that a trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is executed. Id. (citing Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001); Pike v. State, 344 Ark. 478, 70 S.W.3d 795 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994)). Thus, the issue of whether a circuit court can revoke probation after the expiration of the probation period is one of jurisdiction. Carter v. State, supra.
Revocation of probation is governed by section 5-4-309 of the Arkansas Criminal Code that provides in pertinent part as follows:
(a) At any time before the expiration of a period of suspension or probation, the court may summon the defendant to appear before it or may issue a warrant for his arrest. The warrant may be executed by any law enforcement officer.
iji ‡ >}i
(d) If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
(e) The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.
Ark. Code Ann. § 5-4-309 (Supp. 2001) (emphasis added). In Carter, our supreme court provided that “[u]nder the plain language of section 5-4-309 (e), revocation of probation subsequent to the expiration of the probation period is only authorized upon an arrest for violation of probation or when ‘a warrant is issued for his arrest for violation of . . . probation’ during the probation period.” Carter v. State, 350 Ark. at 235, 85 S.W.3d at 918 (citing Ark. Code Ann. § 5-4-309(e)).
Here, it is undisputed that appellant had not been arrested for violation of probation nor had a warrant been issued for his arrest for violation of probation. Therefore, the State failed to meet the statutory requirements. Nevertheless, the State urges this court to only require substantial compliance with the statutory language in Ark. Code Ann. § 5-4-309(e). However, the supreme court in Carter v. State, supra, declined to adopt a policy of substantial compliance with regard to the jurisdictional requirements of section 5-4-309 (e). As stated in Carter, “[s]ection 5-4-309 clearly requires that the revocation order be entered during the probation period unless the probationer is arrested, or an arrest warrant is issued, for a probation violation before the probation period has expired.” Carter v. State, 350 Ark. at 237, 85 S.W.3d at 919.
When appellant’s probation period expired without him having been arrested for a probation violation and without an arrest warrant having been issued for violation of probation, the circuit court lost jurisdiction to revoke his probation under Ark. Code Ann. § 5-4-309(e).
Reversed and dismissed.
Gladwin and Roaf, JJ., agree.
We note that the State correctly points out that appellant received an illegal sentence upon the circuit court’s determination that he violated the terms and conditions of his probation. Because the circuit court fined appellant when he was originally sentenced, the court lacked jurisdiction to modify his probation by extending it another five years. See Bagwell v. State, 346 Ark. 18, 53 S.W.2d 520 (2001). The supreme court’s holdings in Bagwell, Pike, McGhee, and Harmon that a court loses jurisdiction to modify a sentence during a period of probation, has been superceded by Act 1569 of 1999, codified at Ark. Code Ann. § 5-4-301(d) (Supp. 2001). Act 1569 took effect April 15, 1999, giving circuit courts authority to modify original sentences following revocation hearings and is not retroactive. See Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002). In the instant case, however, we are concerned with whether a circuit court loses jurisdiction to revoke probation after the expiration of the probation period. | [
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John B. Robbins, Judge.
This is the second appeal in this matter. On October 25, 1999, appellant Arkansas Department of Human Services filed a petition for emergency custody of appellee Mark Eric Jorden’s three children. Dependent-neglect proceedings were scheduled, but Mr. Jorden was not permitted to participate because the trial court found that he lacked standing. Mr. Jorden appealed, and in Jorden v. Arkansas Dep’t of Human Servs., 73 Ark. App. 1, 38 S.W.3d 914 (2001), we held that the trial court erred in this regard, and we reversed and remanded.
Subsequent to our remand, a hearing was conducted on appellant’s petition to find the children dependent-neglected. At the hearing, Mr. Jorden did not contest the appellant’s assertion that his son, Paris, was dependent-neglected. However, he contested the allegations pertaining to his other children, Mark and Jasmine. After the hearing, the trial court found that ADHS failed to prove by a preponderance of the evidence that Mark and Jasmine are dependent-neglected. ADHS appeals from this ruling, arguing that the trial court erred in not finding Mr. Jorden to be an unfit parent, and in failing to adjudicate Paris’s siblings as dependent-neglected because they were at a substantial risk of serious harm. We agree, and we reverse.
The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark. Code Ann. § 9-27-325 (h)(2)(B) (Repl. 2002). At the time of the adjudication hearing, a dependent-neglected juvenile was defined as “any juvenile who as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness is at substantial risk of serious harm.” Ark. Code Ann. § 9-27-303(15)(A) (Supp. 1999). Arkansas Code Annotated section 9-27-302(2)(B) (Repl. 2002) provides that one purpose of the juvenile code is “[t]o protect a juvenile by considering the juvenile’s health and safety as the paramount concerns in determining whether or not to remove the juvenile from the custody of his or her parents [.]”
On appeal from a trial court’s ruling in a dependency-neglect case, we will not reverse the trial court’s findings unless they are clearly erroneous, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses. Johnston v. Arkansas Dep’t of Human Servs., 55 Ark. App. 392, 935 S.W.2d 589 (1996). A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence the reviewing court is left with a definite and firm conviction that a mistake has been made. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).
Evidence presented at the adjudication hearing established that Mr. Jorden moved to Arkansas from Omaha, Nebraska, in 1998 and maintained custody of the children while their mother remained out of state. At the time of the hearing, Paris was seven years old, Jasmine was eight years old, and Mark was nine years old. The conduct that instigated the current proceedings occurred in October 1999, when Paris was five.
By Mr. Jorden’s own admission, he punished Paris by repeatedly spanking him on October 18, 1999, and he “went too far.” He testified that Paris had been coming home with “corporal punishment slips” for misbehaving at school, so he hit him on his bare bottom several times with a paddle while Paris was lying on his bed. After this incident, Mr. Jorden kept Paris home from school for the next two days, during which he did not notice any limping or visible wounds. Mr. Jorden pleaded guilty to second-degree battery in connection with the wounds he inflicted on Paris, and was sentenced to five years’ probation for the felony conviction. One of the conditions of his probation is that Mr. Jorden can have no unsupervised contact with minors.
There were several witnesses who testified about Paris’s injuries. Cathryn Laurent, a counselor at Paris’s elementary school, testified that on October 21, 1999, she called him into her office after noticing that he was walking with a limp. She asked Paris to take a seat, but he would not sit down. Ms. Laurent called the nurse into her office and, upon examining Paris, they found that his underwear was matted to his bottom. Ms. Laurent stated that “it was like puss had dried up on his bottom” and that it appeared that he had been wearing his underwear for a couple of days or so. The nurse tried to remove Paris’s underwear, but it was causing him so much pain that she had to stop.
The school nurse, Elaine Felsman, testified that Paris told her that his daddy hit him with a stick. She observed that his underwear “was stuck to him due to bloody drainage,” and also noticed that he had marks on his face and a swollen hand.
Ms. Felsman also recounted a prior episode involving Jasmine. She testified that in September 1999, Jasmine had injuries to her arm and leg with some swelling. Ms. Felsman thought Jasmine’s arm might be broken, so she put it in a sling. When Mr. Jorden came to get Jasmine, he pulled the sling off, stating, “It’s not broken.” According to Ms. Felsman, he appeared very upset and somewhat angry, and quickly left with the child.
Dr. Tearani Williams examined Paris on the day his injuries were discovered. Dr. Williams observed what appeared to be a burn over his right eyebrow, swelling of his right arm and hand, and open wounds on his buttocks. The doctor stated, “The injuries to his buttocks were open lesions, . . . surrounded by what appeared to be healing scars.” Dr. Williams testified that the marks on Paris’s buttocks had the appearance of burns and stated, “It is possible that if salt were applied to an open wound, it would cause similar burns to what Paris had.”
Donna Johnson, a specialist with the ADHS, also testified. She stated that she slowly pulled off Paris’s underwear, and that it took about fifteen to twenty minutes. He had urinated in his underwear, and Paris indicated that he had done so because his father would not let him go to the bathroom.
In Mr. Jorden’s testimony, he denied putting salt in Paris’s wounds. He further denied ever spanking Jasmine or Mark, and indicated that they were not present when he spanked Paris.
All three ofMr. Jorden’s children testified. Paris stated that his father spanked him around five times with a spoon, causing sores, and then added salt to the wounds. Paris stated, “he hurt me a lot,” and, “after this happened, I am afraid of my dad.” Jasmine stated that she witnessed the beating, and that her father had spanked her with the same piece of wood in the past. Jasmine further testified that Mr. Jorden poured salt in Paris’s wounds, and that she is afraid he will spank her if they are reunited. Mark testified that he saw his father hit Paris about five times, that he has been spanked by his father in the past, and that after spanking Paris, his father put salt in the wounds.
In its order finding that Jasmine and Mark are not dependent-neglected, the trial court accepted the testimony that Mr. Jorden caused “extreme serious injury” to Paris, and found that “the beating appeared to occur in a vicious and savage fashion indicating great anger by the perpetrator of the beating.” However, in denying the ADHS’s petition with regard to Jasmine and Mark, the trial court announced:
Clearly, a preponderance of the evidence has been established to show that Mr. Jorden severely and cruelly beat and injured Paris while the other children were watching and in an act of incomprehensible cruelty, poured salt upon these open wounds to further cause excruciating pain to this 5 Va year old child. This conduct is totally reprehensible and abhorrent to this Court as it should be to any responsible person. This Court believes that Mr. Jorden grossly breached his parental duty to this child when he physically abused him. This does not mean that he is an unfit parent. This does not mean that the other children are substantially at risk of serious harm. Further proof is required other than one act of abuse.
ADHS now argues that the trial court clearly erred in fading to find Mark and Jasmine dependent-neglected. ADHS cites Brewer v. Arkansas Dep’t of Human Servs., 73 Ark. App. 364, 43 S.W.3d 196 (2001), where we held that parental unfitness is not necessarily predicated upon the parent’s causing some direct injury to the child in question. In that case, we upheld a finding of dependency-neglect with regard to an infant, notwithstanding the fact that the infant had not been abused, based on evidence that the infant’s older sibling had been severely physically abused over a period of time. ADHS submits that, due to the severity of the abuse and other circumstances of this case, the trial court erroneously failed to find Mr. Jorden to be unfit and the two children at issue at substantial risk of serious harm, on the flawed basis that, “Further proof is required other than one act of abuse.”
We agree that the trial court’s failure to adjudicate Mark and Jasmine dependent-neglected was clearly erroneous. In Brewer v. Arkansas Dep’t of Human Servs., supra, we announced:
Parental unfitness is not necessarily predicated upon the parent’s causing some direct injury to the child in question. Such a construction of the law would fly in the face of the General Assembly’s expressed purpose of protecting dependent-neglected children and making those children’s health and safety the juvenile code’s paramount concern. To require Logan to suffer the same fate as his older sister before obtaining the protection of the state would be tragic and cruel.
73 Ark. App. at 368, 43 S.W.3d at 199. The above reasoning is applicable in the case at bar. While Jasmine and Mark have not been directly injured by Mr. Jorden, Mr. Jorden’s abuse of Paris demonstrated parental unfitness that puts Jasmine and Mark at substantial risk of serious harm.
As ADHS points out in its brief, there is more to this case than the severe whipping of Paris. Subsequent to that event, Mr. Jorden poured salt into the extensive wounds. The evidence shows that, rather than seeking medical care for Paris, Mr. Jorden kept him home, in the same pair of underwear, for two days while the bleeding and oozing caused the underwear to stick to his buttocks, and the pain and burning continued. The trial court correctly characterized the pouring of salt into the wounds as “an act of incomprehensible cruelty,” and Mr. Jorden’s actions were tantamount to torture. The battery committed against Paris was so severe that it is a violation of Mr. Jorden’s probation to have unsupervised contact with any minors, which includes his own children. Based on the evidence presented, we are compelled to reverse the decision of the trial court.
Reversed and remanded.
Griffen and Crabtree, JJ., agree.
After the hearing, but before the trial court’s order was entered, the definition of “dependent-neglected juvenile” was extended to include a juvenile at substantial risk of serious harm caused by “parental unfitness to the juvenile, a sibling, or other juvenile.” See Ark. Code Ann. § 9-27-303(16)(A) (Repl. 2002). However, neither ADHS nor the attorney ad litem for the children argue that the amended definition is applicable. | [
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Terry Crabtree, Judge.
This is a revocation case. On July 20, 2001, the appellant, Richard Cheshire, pled no contest in the Mena District Court to a charge of possessing an instrument of crime. The district court placed appellant on probation for a year under the condition that appellant commit no “jailable offense” during the period of probation, and the court ordered appellant to pay a fine of $575.00 by January 18, 2002. The sentencing statement appellant received read that appellant was to appear in court at 1:30 p.m. on the date the fine was due if it had not been paid.
On October 19, 2001, the city attorney filed in district court a petition to revoke, alleging that appellant had been found guilty on October 5, 2001, of inhaling intoxicants which; as a jailable offense, constituted a violation of appellant’s probation. The hearing was held on January 18, 2002, the same date that appellant’s $575 fine was due. The district court revoked appellant’s probation, and appellant appealed that decision to circuit court.
After a hearing, the circuit court also revoked appellant’s probation. The court found that appellant had violated the terms of his probation by failing to pay his fine within the prescribed period of time and by committing a jailable offense. Appellant was sentenced to serve six months in jail. This appeal followed.
On appeal to this court, appellant argues that the evidence is insufficient to sustain the trial court’s findings that he wilfully and inexcusably violated the terms of his probation. We disagree and affirm.
As a threshold argument, the State contends that the appeal should be dismissed because the circuit court lacked jurisdiction to hear the appeal from district court. The State maintains that, since the purpose of a de novo appeal from a district court to circuit court is to preserve the right to a trial by jury, the circuit court lacked jurisdiction because there is no right to a jury trial on a petition to revoke probation. We find the State’s argument unpersuasive. Amendment 80, § 7(A), of the Arkansas Constitution provides that appeals from district courts are taken as a matter of right to Circuit Courts for a trial de novo. This power is not expressly limited to cases where there is a right to a jury trial.
To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponder-
anee of the evidence. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). On appeal, the trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.2d 869 (2001). Since the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge’s superior position. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002).
After reviewing the record, we hold that the trial court’s finding that appellant inexcusably failed to pay his fine on time is not clearly against the preponderance of the evidence. Although appellant argues that he was in jail the day the fine was due, we note that appellant’s testimony on that subject was contradictory. At one point, appellant testified that he was jailed that day on the probation revocation but that he made bond immediately. At another juncture, he testified that he could not pay the fine on time because he was in jail. Given the inconsistencies in his testimony, the trial court did not have to believe appellant’s testimony that he was unable to pay the fine by the due date because he was in jail.
Appellant also argues that the trial court erred in revoking his probation on the ground that he failed to pay the fine when it was due because this was not alleged as a basis for revocation in the petition to revoke. While it is true that appellant’s right to due process required that he be given notice of the conditions of probation he was alleged to have violated, Phillips v. State, 40 Ark. App. 19, 840 S.W.2d 808 (1992), it is also true that the denial of any right, even a constitutional one, must be objected to at trial to be preserved for appeal. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Appellant did not object to the testimony elicited on this subject. Nor did he claim surprise or the lack of notice. When an issue is not brought to the attention of the trial court, we do not consider it on appeal because the trial court had no opportunity to rule on the issue. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992).
The State need only have proved that appellant violated any one condition of his probation in order to support revocation. See Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Therefore, we need not discuss whether the evidence is sufficient to support the trial court’s finding that appellant also violated his probation by committing a jailable offense.
Affirmed.
Pittman and Robbins, JJ., agree.
Article 7, § 14 of the Arkansas Constitution, which was repealed by Amendment 80, § 22(a), also provided that circuit courts had appellate jurisdiction over inferior courts. See Johnson v. State, 312 Ark. 38, 846 S.W.2d 662 (1993). | [
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Andree Layton Roaf, Judge.
Appellant Frank Hilton was convicted in the Pulaski County Circuit Court of driving while intoxicated, third offense, and driving on a suspended license. Hilton was sentenced to ninety days in jail and a $1,500 fine. On appeal, Hilton argues that the trial court erred in denying his motion to exclude the results of his breathalyzer test because (1) his arrest was not supported by probable cause and (2) the implied consent law did not apply. We affirm.
On April 7, 2000, at approximately 11:45 p.m., Hilton was stopped at a sobriety checkpoint operated by the Arkansas State Police on Highway 10. When Sergeant Keith Eremea approached Hilton’s vehicle, he testified that he immediately noticed a strong odor of intoxicants coming from the vehicle. Eremea stated that he asked Hilton if he had anything to drink that night and that Hilton told him that he had something to drink. Eremea testified that he asked Hilton to step out of his vehicle and to take a portable breath test, which he refused. Eremea also testified that when Hilton stepped out of the vehicle, he determined that the strong odor of intoxicants was coming from Hilton. In addition, Eremea testified that Hilton’s eyes were bloodshot. Hilton was then arrested and transported to the police station, where he signed an implied consent form and was given a certified breathalyzer test. The results of the test showed Hilton’s blood alcohol to be .11 percent.
Hilton argues that the trial court erred in denying his motion to exclude the results of the breathalyzer test because his arrest was not supported by probable cause. The State contends that Hilton’s claim that his arrest was not supported by probable cause is not preserved for appellate review. In making this argument, the State relies on Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), and Cole v. State, 68 Ark. App. 294, 6 S.W.3d 805 (1999). In Stewart, supra, the defendant filed a motion to suppress prior to trial and was granted permission by the trial court to consider her motion for suppression simultaneously with the evidence. The State argued that her claim that the trial court erred in denying her motion was not preserved because she failed to contemporaneously object when the evidence was introduced at trial. Id. However, the court held that in a bench trial, it is not necessary to make a contemporaneous objection when the contested evidence is offered if the defendant renewed the previously filed motion to suppress at the beginning of the trial, and the trial court agreed to consider the motion simultaneously with the evidence on the merits. Id. The court recognized the general rule that an objection contemporaneous with the alleged error is required -to preserve the issue for appeal, but stated that, under these circumstances, there is no risk that the trial court will be unfamiliar with the nature of the objection. Id.
In Cole v. State, supra, the defendant filed a motion to suppress prior to trial, which was not ruled upon, and did not renew his motion at the beginning of the trial, nor did he object when the contested evidence was offered. It was not until the State had rested its case that the defendant made an oral motion to suppress and to dismiss the charges. Id. The court discussed Stewart, supra, and held that the defendant’s argument pertaining to the denial of his motion was not preserved for review. Id.
In the present case, Hilton filed a written motion to suppress prior to trial, but the record reflects that the motion was not ruled upon by the trial court. Although Hilton failed to renew his motion to suppress at the beginning of trial, Hilton did object when the breath-test results were admitted at trial, and he argued that the evidence should be excluded because of the lack of probable cause. The trial court denied Hilton’s motion at that time. In addition, Hilton argued that the results should be excluded as part of his motion to dismiss, which the trial court again denied. This case can be distinguished from Stewart, supra, and Cole, supra, because Hilton did make a contemporaneous objection when the contested evidence was introduced. Although there are no cases involving the particular situation in this case, a review of Stewart, Cole, and other cases leads us to the conclusion that Hilton’s argument is preserved for our review. See Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999) (stating that where defendant filed a pretrial motion to suppress that was not ruled upon, defendant was required to renew objection and obtain ruling when that evidence was introduced at trial to preserve issue for appeal); Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985) (holding that argument was not preserved where defendant did not file a pretrial motion to suppress and did not object or make a motion to exclude the evidence until his motion to dismiss at the close of all of the evidence).
In reviewing the denial of a motion to suppress evidence, the appellate court makes an independent examination based upon the totality of the circumstances and reverses only if the decision is clearly against the preponderance of the evidence. Foster v. State, 66 Ark. App. 183, 991 S.W.2d 135 (1999). A determination of the preponderance of the evidence depends heavily on questions of credibility and weight to be given the testimony, and this court defers to the superior position of the trial court on those questions. Campbell v. State, 27 Ark. App. 82, 766 S.W.2d 940 (1989).
Hilton first argues that the breathalyzer test results should have been excluded because the police lacked probable cause to arrest him for driving while intoxicated. Arkansas Rule of Criminal Procedure 4.1(a)(ii)(C) authorizes a warrantless arrest when the officer has reasonable cause to believe that the person has committed a traffic offense involving driving a vehicle while under the influence of an intoxicating liquor. Probable cause to arrest is defined as “a reasonable ground for suspicion supported by circumstances sufficiendy strong in themselves to warrant a cautious man in believing that a crime has been committed by the person suspected.” King v. State, 75 Ark. App. 405, 58 S.W.3d 875 (2001) (quoting Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986)). Probable cause to arrest does not require the quantum of proof necessary to support a conviction, and in assessing the existence of probable cause, the appellate court’s review is liberal rather than strict. Id. In addition, on appeal, the legality of an arrest is presumed and the burden is on appellant to establish its illegality. Id.
Sergeant Eremea testified that he smelled a strong odor of intoxicants on Hilton and that Hilton’s eyes were bloodshot. Eremea also testified that Hilton admitted to having had something to drink that night. In addition, Eremea stated that Hilton refused to take a portable breath test, which is evidence of his consciousness of guilt. Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998) (affirming conviction for driving while intoxicated and finding that defendant’s refusal to take breathalyzer test is relevant evidence of defendant’s knowledge or consciousness of guilt). Hilton argues that these observations are not enough to establish probable cause to arrest him. However, a police officer’s observations with regard to the smell of alcohol and other physical characteristics consistent with intoxication can constitute competent evidence to support a charge of driving while intoxicated. See State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996) (court held that trial court erroneously granted directed verdict in favor of defendant on charge of driving while intoxicated, when officers testified that defendant had an odor of intoxicants, slurred speech, bloodshot eyes, and where defendant admitted to having had a few drinks); Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992) (where court stated that officer’s testimony that defendant smelled of alcohol, had red eyes, poor balance, and that he admitted to having consumed a couple of beers was sufficient to support conviction for driving while intoxicated). Given that the same quantum of proof is not necessary to support the finding of probable cause to arrest as is required to sustain a conviction, King v. State, supra, we conclude that Eremea’s observations with regard to the smell of alcohol and Hilton’s bloodshot eyes, in addition to Hilton’s refusal to take the portable breath test and his admission that he had been drinking, is sufficient to sustain the trial court’s ruling that there was probable cause to arrest Hilton for driving while intoxicated.
In a related argument, Hilton contends that the trial court should have excluded the results of his breathalyzer test because the implied consent law did not apply in his situation. The version of Ark. Code Ann. § 5-65-202(a) (Repl. 1997) in effect at the time of Hilton’s offense states:
(a) any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of Ark. Code Ann. § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood; or
(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or
(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.
Hilton argues that section 5-65-202(a)(3) did not apply because Eremea did not have reasonable cause to believe that he was intoxicated. However, as discussed above, Eremea’s observations of the smell of alcohol and Hilton’s bloodshot eyes, coupled with the fact that Hilton refused a portable breath test and admitted to Eremea that he had been drinking, were sufficient to constitute reasonable cause that he was intoxicated. Thus, the trial court’s ruling denying Hilton’s motion to suppress the breathalyzer results is not clearly against the preponderance of the evidence.
Affirmed.
Gladwin and Neal, JJ., agree. | [
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John F. Stroud, Jr., Chief Judge.
This is a second appeal arising from a suit filed by appellants, Thomas and Lilly K. Randles, seeking damages for fraud, deceit, and breach of contract in the purchase of property from appellees, Billy and Denise Cole, after appellants discovered that the property had been used as a landfill. Randles v. Cole, 68 Ark. App. 7, 2 S.W.3d 90 (1999).
In the first appeal, we reversed and remanded the trial court’s grant of summary judgment, finding that there were genuine questions of material fact as to when appellants discovered that the property had been a landfill. Id. On remand, the jury returned a verdict on ten interrogatories. The trial court, finding that the jury’s answers to the interrogatories were conflicting, set aside the jury’s verdict and ordered a new trial. On direct appeal appellants argue that the trial court erred in not resolving any conflict in the evidence in favor of the jury’s answers to the interrogatories and that there was substantial evidence to support the jury’s findings. By cross-appeal, appellees raise three points concerning the denial of their motion for judgment notwithstanding the verdict. We reverse on direct appeal and affirm on cross-appeal.
After this court remanded the case, a jury trial was held on January 11 and 12, 2001. There was no dispute that the property involved was once the City of Cave Springs’ landfill. On July 18, 1994, appellants signed an “Offer and Acceptance” agreeing to purchase the subject property from appellees, and appellees accepted the offer on the same day. The purchase price was $30,000, with appellants to pay $8,000 as a down payment and to secure a bank loan for the remaining $22,000. The Offer and Acceptance also contained the following disclosure requirement:
17. SELLER DISCLOSURE:
C. Seller will provide to Buyer a disclosure about the condition of the Property which will contain information that is true and correct to the best of the Seller’s knowledge. The disclosure will be presented to Buyer within three (3) business days of acceptance of this offer. Buyer has three (3) business days after receipt of disclosure to accept or reject said disclosure. If Seller fails to provide the disclosure in a timely manner, or if Buyer finds the disclosure unacceptable within three (3) business days after receipt, this contract may be declared null and void by the Buyer, with Buyer to receive a refund of the earnest money. Receipt of this disclosure neither limits nor restricts in any way the Buyer’s Disclaimer of Reliance set forth in Paragraph 15 of this contract.
On August 15, 1994, the parties signed a “Contract for Sale of Real Estate and Escrow Agreement.” The purchase price again was $30,000, but with $10,000 as a down payment by appellants and the remaining $20,000 to be paid in equal monthly installments including interest. Appellees were to deliver a warranty deed in escrow to Simmons First Bank as escrow agent. Upon payment of all sums due, the escrow agent was to deliver the warranty deed to appellants.
The main issue tried was the date when the appellants should have discovered that the property had been used as a landfill, and the evidence was sharply conflicting. The case was submitted to the jury on ten interrogatories. The jury answered as follows:
Interrogatory No. 1: Do you find from a preponderance of the evidence that Denise and Eugene Cole committed a breach of contract with respect to the sale of their property to Tommy and Kathy Randles? Answer: Yes
Interrogatory No. 2: Do you find from a preponderance of the evidence that Denise Cole committed deceit with respect to the sale of her property to Tommy and Kathy Randles? Answer: Yes
Interrogatory No. 3: Do you find from a preponderance of the evidence that Eugene Cole committed deceit with respect to the sale of his property to Tommy and Kathy Randles? Answer: Yes
Interrogatory No. 4: Do you find from a preponderance of the evidence that Kathy and Tommy Randles, acting at all times with due diligence, should not have discovered or did not discover the existence of a possible lawsuit against Denise and Eugene Cole for deceit until after October 10, 1994 [the date appellants filed their complaint]? Answer: Yes
If you answered interrogatory number 1 “Yes,” and answered either interrogatories number 2 or 3 “Yes,” and you answered interrogatory 4 “Yes,” then you are required to answer interrogatory number 5.
Interrogatory No. 5: State the amount of damages sustained by Kathy and Tommy Randles which you find from a preponderance of the evidence were proximately caused by a breach of contract and/or deceit. Answer: $30,000
If you answered interrogatory number 1 “Yes,” but answered interrogatory number 4 “No,” then you are required to answer interrogatory number 6.
Interrogatory No. 6: State the amount of damages sustained by Kathy and Tommy Randles which you find from the preponderance of the evidence were proximately caused by the breach of contract. Answer: $0 Not Applicable
Interrogatory No. 7: If your answer was “yes” to interrogatory number 2 and you answered interrogatory 4 “Yes,” state the amount of punitive damages, if any,, which you find from the preponderance of the evidence should be awarded against Denise Cole. Answer: $0
Interrogatory No. 8: If your answer was “yes” to interrogatory number 3 and you answered interrogatory 4 “Yes,” state the amount of punitive damages, if any, which you find from the preponderance of the evidence should be awarded against Eugene Cole. Answer: $0
Interrogatory No. 9: Do you find from a preponderance of the evidence that the Seller Property Condition Disclosure form was ever given to plaintiffs Tommy and Kathy Randles on or before August 15, 1994 [the date of closing]? Answer: No
Interrogatory No. 10: Do you find from a preponderance of the evidence that defendants Billy Eugene and Denise Cole took any action after August 15, 1994, to conceal from plaintiffs the condition of the property they sold to plaintiffs? Answer: No
(Emphasis in original.)
Appellees filed a motion for judgment notwithstanding the verdict on February 9, 2001, prior to judgment being entered. Based on the jury’s answers to Interrogatories No. 9 and No. 10, the motion sought to renew appellees’ motion for summary judgment alleging that the statute of limitations had run. The motion further alleged that the jury’s answers to Interrogatories Nos. 1, 2, and 3 were inconsistent with the answer in Interrogatory No. 9. The motion asked that the trial court reconcile the inconsistencies in favor of the jury’s answer to Interrogatory No. 9 and enter judgment in appellees’ favor, finding that appellees neither breached the contract nor committed fraud or deceit. The trial court entered a judgment containing the jury’s answers to the interrogatories and set aside that verdict on the ground that the answers were conflicting and ordered a new trial. This appeal followed.
Direct Appeal
For their first point on appeal, appellants argue that the trial court erred in not resolving the conflicting evidence in favor of the jury’s verdict. Essentially, they argue that, because there was substantial evidence to support the verdict, the trial court should not have granted a new trial. We agree.
Rule 59(e) of the Arkansas Rules of Civil Procedure permits a trial court to grant a new trial on its own motion on any ground on which it might grant a party’s motion for a new trial, such as the verdict being clearly contrary to the preponderance of the evidence or contrary to law. See Ark. R. Civ. P. 59(a)(6). In reviewing a trial court’s granting of a motion for new trial, this court determines whether the trial court abused its discretion; a showing of an abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Lloyd’s of London v. Warren, 66 Ark. App. 370, 990 S.W.2d 589 (1999). Abuse of discretion in granting a new trial means a discretion improvidendy exercised, i.e., exercised without due consideration. Razorback Cab of Fort Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993).
The trial court found, without further elaboration, that the jury’s answers to the interrogatories were conflicting. The verdicts should not be set aside if the jury’s intentions were capable of ascertainment with certainty. Russell v. Pryor, 264 Ark. 45, 568 S.W.2d 918 (1978). The ultimate test of inconsistency is whether the conflict is such that one answer would require a verdict for the plaintiffs and the other a verdict for the defendants. Id. at 53, 568 S.W.2d at 922.
We hold that the separate answers to interrogatories rendered by the jury are not conflicting. The jury’s answers to Interrogatories Nos. 2 and 3 find that the sellers committed deceit with respect to the sale of the property to buyers, and their answer to Interrogatory No. -9 finds that the sellers did not give the Seller Property Condition Disclosure to the buyers before or at the closing on August 15, 1994. The jury’s answer to Interrogatory No. 10 is a finding that the sellers took no steps after the closing to conceal the deceit, which was obviously the failure to disclose that the land had been used as a landfill. It was not necessary that the sellers take further deceitful action, because the jury found in Interrogatory No. 4 that the buyers, acting with reasonable diligence, did not discover or reasonably should not have discovered the deceit until after October 10, 1994. In the first appeal, we held that affirmative acts concealing the cause of action such as not providing the disclosure form will bar the start of the statute of limitations until the time when the cause of action is discovered or should have been discovered by reasonable diligence. Randles v. Cole, supra. The statute of limitations was thereby tolled until appellants discovered the fraud, which was a date after October 10, 1994. Appellant’s complaint was filed on October 10, 1997, within three years of their discovery of the fraud. Under these circumstances, we are persuaded that setting aside the jury verdict constituted an abuse of discretion.
We reverse and remand for reinstatement of the jury’s verdict. In light of our disposition on appellants’ first point, we need not consider the remaining points on direct appeal.
Cross-Appeal
Appellees raise three issues on cross-appeal regarding the trial court’s failure to grant their motion for judgment notwithstanding the verdict. Specifically, appellees argue that the trial court erred in not granting their motion because the appellants’ claim was barred by the statute of limitations; that the trial court erred in not granting their motion and finding that appellees did not breach the contract; and that the trial court erred in not granting their motion and finding that appellees did not commit fraud or deceit in the sale of this property. We do not address the issues on cross-appeal because they are not properly preserved due to appellees’ failure to move for a directed verdict at the close of all of the proof.
Arkansas Rule of Civil Procedure 50(b)(1) provides: “Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” While a motion for judgment notwithstanding the verdict also allows the court to consider all other questions of law raised, Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990), the motion for directed verdict at the close of all of the evidence is still a precondition under Rule 50(b) for making the motion for judgment notwithstanding the verdict. Pennington v. Rhodes, 55 Ark. App. 42, 929 S.W.2d 169 (1996). A motion for judgment notwithstanding the verdict is technically only a renewal of the motion for directed verdict made at the close of the evidence. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993); Dodson Creek, Inc. v. Fred Walton Realty Co., 2 Ark. App. 128, 620 S.W.2d 947 (1981).
Reversed and remanded on direct appeal; affirmed on cross-appeal.
Hart and Griffen, JJ., agree.
As noted above, appellees filed their motion for judgment notwithstanding the verdict prior to the entry of judgment. Arkansas Rule of Civil Procedure 50(b)(2) specifically allows for such early filing of the motion and treats any such filing as effective on the day after the judgment is entered.
The abstract shows that appellees made a general motion for directed verdict at the close of appellants’ proof, which was denied. No motion for directed verdict was made at the close of all of the proof. | [
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Josephine Linker Hart, Judge.
Mary A. Thornton appeals from the Arkansas Board of Review’s (“Board”) decision that she was ineligible for unemployment benefits. Appellant left her employment as manager of the local Dollar General Store in Marianna, Arkansas, after she was robbed at gunpoint as she was leaving the store to make the end-of-the-day deposit. The Board determined that although the armed robbery involved was unfortunate, it did not constitute the requisite good cause connected with the work to justify appellant’s voluntary termination of her employment. We disagree and reverse.
On February 19, 2002, at about 9:00 p.m., appellant and her assistant manager were robbed at gunpoint outside the Dollar General Store. Thereafter, appellant quit her position and filed for unemployment benefits on February 25, 2002. Following a hearing on April 17, 2000, the Appeal Tribunal denied appellant unemployment benefits, and she appealed to the Board. The Board affirmed the Appeal Tribunal’s decision, finding that appellant did not have good cause connected with work to leave her last work, and therefore, she had voluntarily left her last employment. From that decision comes this appeal.
Our scope of appellate review in cases such as this is well-settled and oft-stated:
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.
Fleming v. Dir., 73 Ark. App. 86, 88, 40 S.W.3d 820, 822 (2001).
Appellant argues as her sole point for reversal that the Board erred in finding that she voluntarily left her last work without good cause connected with work pursuant to Ark. Code Ann. § 11-10-513 (Repl. 2002). Arkansas Code Annotated section 11-10-513(a)(l) states that “an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.” Good cause has been defined as “a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment” and is ordinarily a question of fact for the Board of Review to determine. Khan v. Director, 42 Ark. App. 64, 892 S.W.2d 513 (1993). Furthermore, Arkansas Code Annotated section 11-10-515(c)(1) (Repl. 2002) states that “in determining the existence of good cause for voluntarily leaving his or her work under § 11-10-513, there shall be considered, among other factors and in addition to those enumerated in subsection (d) of this section, the degree of risk involved to his or her health, safety, and morals. ...”
During her testimony, appellant affirmed that at approximately 9:00 p.m. on February 19, 2002, she and the assistant manager, Shirley Golden, were closing the store when they were robbed at gunpoint. As a part of her job duties, appellant was required to make nightly bank deposits. On the night of the robbery she was carrying in excess of $1,200 in cash, plus $400 in checks, as she secured the building and entered the parking lot. According to appellant, the parking lot was dark and deserted because the business next door closes at 5:00 p.m. Appellant testified that the Dollar General Store is located between two housing projects and is the only business open after 5:00 p.m. within a radius of approximately one-half mile. Appellant testified that “there is not any activity going on around us, and it’s just not secure to work there during the day, much less after dark.” Further, she stated that this particular Dollar General Store had been broken into four or five times during the course of her employment, but this was her first life-threatening experience.
Appellant testified that after the robbery, she spoke to the manager about her safety concerns but his only accommodation was to close the store one hour earlier at 7:00 p.m. However, appellant noted that it is still dark at 7:00 p.m. when it is not daylight savings time. Appellant repeatedly testified that she was frightened to work at that particular store and was scared by the armed robbery.
v Andra Matthew, as the employer’s representative, testified that the company had taken precautions to ensure the safety of its employees. According to Matthew, he had advised the managers of the eighteen stores under his supervision that when making a deposit around Christmas time they were to contact the local police department to ask for an escort from the store to the bank. Furthermore, he testified, “[T]hat would have been my only thing that I would have to say that we did take some step to help reduce the risk that was involved in the [employees] coming out the door at night with the money in their hands.” Further, he stated, “As far as any security that could have been given to them prior to closing, we had none, and . . . [i]t wouldn’t be financially within our scope to do so.” He noted that appellant did not contact the local police department for an escort on the night of the robbery. Appellant responded that she had called the local police before, but they often took a long time to come by the store and “sometime they get so busy doing other things.”
In its decision, the Board stated that “the employer had taken reasonable steps by instructing its employees to contact their local police department for an escort. It was claimant’s choice not to avail herself of this precaution.” The Board concluded that “[I]t is unfortunate that the claimant was the victim of such an act. However, this does not create good cause connected with the work for quitting.”
Arkansas Code Annotated section 11-10-515 states that “safety” is a consideration in determining good cause. In Carpenter v. Director, 55 Ark. App. 39, 929 S.W.2d 177 (1996), this court found, in addition to other factors, evidence of commuting employees who were required to undertake additional safety hazards caused by the inherent conditions of roads supported a finding that the claimant had good cause in connection with work to voluntarily leave employment. Likewise, in Teel v. Daniels, 270 Ark. 766, 770, 606 S.W.2d 151, 152 (Ark. App. 1980), the court found that the appellant had good cause in connection with work to terminate his employment because the employer expected appellant to climb a ladder and perform roofing assignments when the deck was iced over and such activity created a “hazard to claimant’s personal safety.”
In this case, the evidence demonstrates that appellant’s sole reason for leaving her position at Dollar General was fear for her safety after being robbed at gunpoint. Further, appellant’s testimony established that her employer was cognizant of the potential for such a life-threatening event to occur by keeping the store open for several hours after the other businesses in the area had closed and in requiring an end-of-the-day bank deposit after 8:00 p.m. each evening. Even though the location of the store and the requirements of the employer created special security risks for the employees, such risks were not addressed by the employer.
The only security measure taken by the employer was to instruct the employees to request the local police to act as a security guard around Christmas time. Thus, the employer’s only safety measure provided for the “at-risk employees” depended on the police protection provided by the local government for the general public. The employer’s security plan did not address the special security needs of an employee who was placed in an “at-risk” situation by leaving an isolated retail store carrying a large bank deposit at 9:00 in the evening. Therefore, based on the facts of this case, the Board’s finding that appellant did not have good cause connected with work to voluntarily leave her last work is not supported by substantial evidence. Thus, we reverse and remand for an award of benefits.
Reversed and remanded.
Stroud, CJ., and Roaf, J., agree. | [
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John F. Stroud, Jr., Chief Judge.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant’s counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellant was provided with a copy of his counsel’s brief and notified of his right to file a list of points on appeal within thirty days. Appellant filed no points. Appellant’s counsel asserts that there were no adverse rulings by the trial court beyond the disposition of the case.
On March 30, 2000, appellant, Joshua Climer, entered a guilty plea to the offense of second-degree forgery, which is a Class C felony, and to the offense of theft of property, which is a Class A misdemeanor. According to the April 4, 2000 judgment and disposition order, the date that these offenses were committed was December 29, 1998. The trial court placed appellant on probation for a period of sixty months and imposed several conditions, including that he pay restitution of $1,211.83, pay a fine of $1,000 and costs of $150, report to his probation officer and pay fees, abstain from the use of controlled substances, and perform forty hours of community service. On August 8, 2001, the State filed a petition to revoke, alleging that appellant had failed to comply with several of the conditions of his probation. Following a hearing on the petition to revoke, the trial court concluded that appellant had violated several of the conditions of his probation, including the use of a controlled substance without a prescription. In a judgment entered on January 23, 2002, the trial court did not revoke appellant’s probation, but added as a condition of his probation that he serve 120 days in a regional punishment facility.
As noted by appellant’s counsel, the trial court’s authority for disposing of the petition to revoke in the manner that it did lies in Arkansas Code Annotated section 5-4-304(c) and (d)(1) (Supp. 2001), which provides:
(c) Following a revocation hearing held pursuant to § 5-4-310 and wherein a finding of guilt has been made or the defendant has entered a plea of guilty or nolo contendere, the court may add a period of confinement to be served during the period of suspension of imposition of sentence or period of probation, if no period of confinement was included in the original order placing the defendant on suspended imposition of sentence or probation.
(d)(1) The period actually spent in confinement pursuant to this section shall not exceed one hundred twenty (120) days in the case of a felony or thirty (30) days in the case of a misdemeanor.
However, the problem with his reliance upon subsection (c), which authorizes the additional period of confinement, is that it was part of Act 1569 of 1999. In Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001), our supreme court held that because Act 1569 of 1999 was not in effect at the time the crime was committed, its provisions could not be invoked by the State. Here, the April 4, 2000 judgment and disposition order provides that the date the underlying offenses were committed was December 29, 1998, which was before the April 15, 1999 effective date of Act 1569. Consequently, in accordance with Bagwell, the amended statutes are not applicable to appellant’s situation; rather, Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), and its progeny govern.
In Harmon, our supreme court explained that a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment, constitutes a conviction. The court further explained that a sentence by a circuit court to pay a fine is put into execution when the judgment of conviction is entered and that a court thereafter loses jurisdiction to modify or amend the original sentence. A trial court’s loss of jurisdiction over a defendant is always open, cannot be waived, and may be raised by an appellate court on its own motion. Harmon v. State, supra.
Since the original disposition of the underlying offenses in the instant case included, in addition to the probation, a fine of $1,000 that was not suspended, the circuit court was thereby deprived of jurisdiction to amend or modify the sentence after it was placed into execution. We therefore reverse and dismiss.
Reversed and dismissed.
Neal and Baker, JJ., agree.
The trial court could have revoked appellant’s probation and imposed a sentence. See, e.g., Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002). However, that was not the action taken here. | [
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Sam Bird, Judge.
The appellant, Douglas Reeves, was found guilty in a bench trial of possession of methamphetamine and was sentenced to two years in prison. As his only issue on appeal, he contends that the trial court erred in denying his motion to suppress evidence found in a search of his person during a traffic stop. We find no error and affirm.
In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances. Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002). We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Because the determination of the preponderance of the evidence turns on questions of credibility and the weight to be given the testimony, we defer to the trial judge’s superior position in this regard. Crain v. State, 78 Ark. App. 153, 79 S.W.3d 406 (2002).
Late in the evening of February 18, 2000, Patrolman David Bevis of the Russellville Police Department stopped the appellant because he did not observe a license plate on the vehicle appellant was driving. There was one other passenger in the vehicle. Officer Bevis testified that appellant vyas unusually nervous to have been stopped for such a minor offense. He said that appellant was stuttering, that his movements were “quick,” and that appellant answered his questions before he completed asking them. Because of appellant’s behavior, Bevis asked appellant to step out of the vehicle. Bevis then asked appellant if he had any weapons. Bevis said that appellant reached into the right, front pocket of his pants and pulled out a knife. Bevis asked appellant if he had another weapon, and appellant began to reach into that same pocket. Bevis testified that he placed his hand over appellant’s and told appellant not to pull anything out. Bevis then felt what he believed to be a pocket knife, and he retrieved it. Bevis stated that appellant began acting more nervous and fidgety when the second knife was removed and that the appellant had grabbed his hand as he was removing the knife.
Bevis further testified that appellant kept putting his hand over the same pocket. Bevis said that this disturbed him because of appellant’s nervousness and the fact that he had retrieved-two knives. Bevis said that he decided to conduct a pat-down search for his own safety. He said that he tried to feel for a weapon in that same pocket but that appellant grabbed his hand and swatted it away when he “got high on the pocket where the watch pocket” was located. Bevis said that he kept trying to feel in that area and felt a lump. While appellant was trying to grab Bevis’s hand, Bevis snatched “the lump” out of the watch pocket. Bevis testified that he had no idea what the lump was because appellant was swatting at his hands and he did not have a chance to manipulate it. He explained that “whatever it was, [appellant] didn’t want me to get to it, and after pulling those two knives out of the same area, I wasn’t going to take any chances.” The “lump” was a baggie that contained what later proved to be methamphetamine.
Officer Bevis testified that he asked appellant to get out of the car within minutes of making the stop, when he had not yet checked appellant’s license and papers. As best he could remember, he did not complete those tasks until after appellant had been arrested.
Appellant testified at the hearing that Bevis explained to him why he had been stopped and that Bevis asked for the vehicle’s registration, proof of insurance, his driver’s license, and the license of the passenger. Appellant said that he was going to get out of the vehicle but that Bevis directed him to stay inside while the licenses were being checked. Appellant said that Bevis came back to the vehicle without a ticket book and returned the licenses and other papers. He said that the officer shined his flashlight inside the vehicle and asked about a radio that was in the front seat. Appellant testified that the officer then asked him to exit the vehicle and asked him if he had any weapons. Appellant said that Bevis had already secured a knife that had been sitting on the dash board and that he handed the officer a knife from his pocket. Appellant stated that Bevis took a package of cigarettes from his shirt pocket and looked inside. He said that Bevis had trouble returning the cigarettes to the pocket and that he took the cigarettes from Bevis and put them back in his pocket. He said that Bevis then reached into the watch pocket of his pants and pulled out the baggie. Appellant denied that he had slapped at the officer’s hand.
Appellant does not contend that the stop was unauthorized. He first argues that, because he had provided the officer with his license and the other documentation, the officer should have issued him a citation for improperly displaying the license plate and should have let him go, instead of further detaining him by asking him to step out of the vehicle. This argument, however, is based entirely on appellant’s version of the events surrounding the stop. On the other hand, it was the officer’s testimony that he asked appellant to get out of the vehicle minutes after making the stop and before checking the licenses and other papers. Such conflicts in the testimony were for the trial judge to resolve, and the judge was not required to believe any witness’s testimony, especially that of the accused, since he is the person most interested in the outcome of the proceedings. Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001).
Otherwise, an officer making a valid traffic stop may, as a matter of course, order the driver to exit the vehicle. Pennsylvania v. Mimms, 434 U.S. 106 (1977). As has been observed by the supreme court:
[HJaving made a valid traffic stop, the police officer may detain the offending motorist while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle’s registration and the driver’s license and criminal history, and the writing up of the citation or warning. See United States v. Carrazco, 91 F.3d 65, 66 (8th Cir. 1996). During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered.
Laime v. State, 347 Ark. 142, 157-58, 60 S.W.3d 464, 474-75 (2001) (quoting United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999)). In this case, the trial court could find that the officer had not yet completed the stop when appellant was asked to get out of the vehicle. Therefore, we find no merit in appellant’s argument.
Next, appellant contends that he should have been issued a citation and released after the knives were found because their possession is not illegal. He argues that his continued detention was not based on any reasonable suspicion that he was carrying any type of weapon. We disagree.
Once again, the trial court could find that the stop was not yet completed when appellant was asked to get out of the vehicle and at the time the officer conducted the protective frisk. Rule 3.4 of the Arkansas Rules of Criminal Procedure provides:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others.
The test is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Kearse v. State, 65 Ark. App. 144, 986 S.W.2d 423 (1999). The officer’s reasonable belief that the suspect is dangerous must be based on specific and articulable facts. Pettigrew v. State, 64 Ark. App. 339, 984 S.W.2d 72 (1998). Here, the officer testified that appellant was unusally nervous, that two knives had been removed from appellant’s pocket, that appellant had swatted his hand away from the pocket, and that appellant kept putting his hand near this pocket. Under these circumstances, we cannot say that the trial court’s finding that a protective frisk was justified is clearly against the preponderance of the evidence.
Appellant’s final argument is that the officer exceeded the scope of a permissible frisk when he removed the baggie from his pocket, citing Bell v. State, 68 Ark. App. 288, 7 S.W.3d 343 (1999). In Bell, the officer saw a bulge in the appellant’s pocket. The officer testified that, when frisking the appellant, the bulge “felt like a plastic bag with what felt like a vegetable-like substance in the pocket.” The officer removed the baggie and discovered that it contained marijuana. We reversed the denial of the motion to suppress based on the Supreme Court’s decision in Minnesota v. Dickerson, 508 U.S. 366 (1993). There, the Court held that an officer may seize contraband that is detected during a pat-down search if the incriminating character of the object is immediately apparent. The Court reversed the conviction, however, because it was shown that the incriminating nature of the object was not immediately apparent because the officer had to manipulate the object before determining that it was contraband. In Bell, we reversed because the officer also manipulated the object to determine that it was contraband.
We find Bell to be distinguishable. Here, the officer testified that he did not have the opportunity to manipulate the object because appellant was grabbing at his hands. In this regard, this case more closely resembles the facts in Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998). In that case, Shaver was a passenger in his own truck. The driver, who was standing outside the truck, informed the officer that Shaver had two guns inside the vehicle, and the officer observed that Shaver was sitting with a shirt or towel over his lap with a leather holster beside him. Shaver was directed to exit the truck, and the officer proceeded to conduct a protective search. The officer detected a bulge in Shaver’s pocket, at which time Shaver “bowed up,” causing the officer to press Shaver against the truck. The officer then decided to remove the object that caused the bulge, which turned out to be a bag containing a white powdery substance. The officer testified that he did not know what was in Shaver’s pocket and that the bulge did not feel like a weapon. He said that it was his intent to pull everything out of Shaver’s pockets, “regardless.” In upholding the search of Shaver, the supreme court held that the ruling in Minnesota v. Dickerson, supra, was not controlling. The court reasoned:
In his argument, Shaver places emphasis on [the officer’s] testimony that, when he searched Shaver’s pocket, the bulge “did not feel like a weapon” and this his “intent was to pull everything out of Mr. Shaver’s pockets, regardless.” In doing so, however, he ignores the circumstances leading to the patdown of Shaver - that guns were present, Shaver was seen next to a leather holster with a tee shirt or towel in his lap, and Shaver appeared “a bit agitated” and was ordered to “calm down.” To insure the officers’ safety, [the officer] felt compelled to check the “big bulge” in Shaver’s pocket, and while, in doing so, he found a bag of white powdery substance, [the officer] remained uncertain regarding what else was in Shaver’s pockets. Under these described circumstances, we cannot say the trial court was clearly wrong in finding that [the officer] was justified in conducting a limited search to determine that Shaver had no weapon on his person.
Shaver, at 17, 963 S.W.2d at 600. In this case, two knives had already been removed from appellant’s pocket, and the appellant was swatting at the officer’s hand as the officer was trying to conduct the protective search. It is our conclusion that, based on these circumstances, combined with appellant’s nervous behavior, the trial court’s decision is not clearly against the preponderance of the evidence.
Affirmed.
Jennings and Crabtree, JJ., agree. | [
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John B. Robbins, Judge.
This is an appeal from an order denying a motion for a preliminary injunction prohibiting an administrative proceeding initiated by the Arkansas Tobacco Control Board. We hold that the circuit judge did not abuse his discretion in denying the motion and affirm.
In October 2001, the Board notified McLane Southern, Inc., and McLane Company, Inc., d/b/a McLane Southeast (henceforth “McLane”), cigarette wholesalers, that they were being charged with violating the anti-rebating provisions of the Unfair Cigarette Sales Act found in Ark. Code Ann. § 4-75-708 (b) (Repl. 2001) and the regulations promulgated thereunder. This statute prohibits cigarette wholesalers from giving rebates or concessions to cigarette retailers as follows:
(a) It shall be unlawful for any wholesaler or retailer, with intent to injure competitors or destroy or substantially lessen competition, to advertise, offer to sell, or sell, at retail or wholesale, cigarettes at less than cost to the wholesaler or retailer, as the case may be.
(b) It shall be unlawful for any wholesaler or retailer, with intent to injure competitors or destroy or substantially lessen competition, to offer a rebate in price, to give a rebate in price, to offer a concession of any kind, or to give a concession of any kind or nature whatsoever in connection with the sale of cigarettes.
(d) Any wholesaler or retailer who violates the provisions of this section shall be guilty of a misdemeanor and be punishable by a fine of not more than five hundred dollars ($500).
(e) Evidence of advertisement, offering to sell, or sale of cigarettes by any wholesaler or retailer at less than cost to him or her, or evidence of any offer of a rebate in price or the giving of a rebate in price or an offer of a concession or the giving of a concession of any kind or nature whatsoever in connection with the sale of cigarettes, or the inducing or attempt to induce or the procuring or the attempt to procure the purchase of cigarettes at a price less than cost to the wholesaler or the retailer shall be prima facie evidence of intent to injure competitors and destroy or substantially lessen competition.
Although McLane requested a hearing before the Board, it filed this action in circuit court before the hearing was held. McLane prayed for preliminary and permanent injunctions preventing the Board from proceeding with the administrative action and a declaration that the anti-rebating provisions of the Act and the regulations are unconstitutional under the due process clauses of the Arkansas and United States Constitutions. In response, the Board asserted that McLane was not likely to succeed on the merits because the matters raised in this proceeding were barred by res judicata and claim preclusion, having been resolved by the supreme court’s decision in McLane Co. v. Weiss, 332 Ark. 284, 965 S.W.2d 109 (1998). The Board also contended that McLane had failed to exhaust its administrative remedies provided by the Administrative Procedure Act or to demonstrate irreparable harm.
The court conducted a hearing on McLane’s motion for a preliminary injunction on December 14, 2001. At that hearing, other licensed wholesale distributors (Intervenors) were permitted to intervene in this action. The judge denied McLane’s motion for a preliminary injunction on December 26, 2001, and entered findings of fact and conclusions of law on January 22, 2002. The judge did not address appellant’s constitutional arguments, nor did he decide whether this action is barred by res judi-cata. He stated:
The Court finds that Plaintiffs have failed to demonstrate a likelihood of success on the merits. McLane is required to exhaust its administrative remedies under the Administrative Procedures Act before collaterally attacking the constitutionality of the Act. The Arkansas Supreme Court has held that a litigant must exhaust his or her administrative remedies before filing a declaratory judgment action under Ark. Code Ann. § 25-15-207. Ford v. Arkansas Game [&] Fish Comm’n, 335 Ark. 245, 979 S.W.2d 897 (1988). Ford is controlling of this suit. Under Ford, McLane also must raise its constitutional arguments before the Board, and then appeal the Board’s final ruling to the Circuit Court pursuant to Ark. Code Ann. § 25-15-212. In AT&T Communications of the Southwest, Inc. v. Ark. Pub. Serv. Comm’n, 344 Ark. 188, 40 S.W.3d 273 (2001), the Arkansas Supreme Court held that even though an administrative agency may not have the power to declare a statute unconstitutional, the constitutionality of a statute must be raised and developed at the administrative agency level. The Court rejects McLane’s argument that the Supreme Court’s holding in AT&T Communications is limited to situations where the administrative action is appealable directly to the Supreme Court.
The Court holds that McLane is required to exhaust its administrative remedies prior to bringing this declaratory judgment action challenging the constitutionality of the Act (on its face or otherwise), or any other aspect of the administrative proceeding initiated by the Board. As McLane has failed to exhaust its administrative remedies, it has failed to establish that it is likely to succeed on the merits of its claims.
The judge also found that McLane had failed to demonstrate a threat of irreparable harm, noting that the Board has no authority to bring a criminal prosecution and that a general claim of injury to reputation in the business community is not the type of concrete irreparable harm that will justify injunctive relief. He stated:
McLane may defend itself and present evidence at a public hearing and it may appeal the Board’s final decision. Any enforcement action {e.g., fines levied or a license suspension) flowing from the proceeding before the Board may be stayed pending an appeal by McLane. Ark. Code Ann. § 25-15-12(c). The Court finds that McLane’s business and property will be adequately protected while the administrative proceedings take place and during any appeal of those proceedings.
McLane has appealed from the denial of its motion for a preliminary injunction.
Arguments
McLane has raised three main issues on appeal: (1) the anti-rebating provisions of the Act are unconstitutional; (2) it was not required to exhaust its administrative remedies; (3) it demonstrated the threat of irreparable harm. The judge, however, did not rule upon McLane’s constitutional argument. Instead, he based his finding that McLane had failed to demonstrate the likelihood of success on the merits only on McLane’s failure to exhaust its administrative remedies and did not address or rely on the constitutional issues. Therefore, we do not address McLane’s constitutional arguments. The failure to obtain a ruling, even with respect to a constitutional question, precludes the consideration of that issue on appeal. Technical Servs., of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). For the same reason, we also do not address the Board’s res judicata argument.
The remaining two issues are whether the judge erred in finding that McLane should have exhausted its administrative remedies and that it had failed to demonstrate the threat of irreparable harm. The ultimate issue, as discussed below, is whether the judge abused his discretion in denying McLane’s motion for a pre liminary injunction. Because we agree with the judge that McLane should have exhausted its administrative remedies, we need not decide whether McLane demonstrated the threat of irreparable harm.
Standard of Review
A party seeking a preliminary injunction must demonstrate a likelihood of success on the merits of the claim for a permanent injunction as well as the likelihood that, absent the granting of preliminary relief, irreparable harm will occur. Moore v. Midwest Distrib., Inc., 76 Ark. App. 397, 65 S.W.3d 490 (2002). An order granting or denying a preliminary injunction is within the judge’s discretion, and we will not reverse a judge’s ruling on a preliminary injunction unless there has been an abuse of discretion. Id. When considering an order that denies an injunction, we will not delve into the merits of the case further than is necessary to determine whether the trial court exceeded its discretion. Custom Microsys., Inc. v. Blake, 344 Ark. 536, 42 S.W.3d 453 (2001). In Villines v. Harris, 340 Ark. 319, 323-24, 11 S.W.3d 516, 519 (2000), the supreme court explained:
The sole question before the appellate court is whether the trial court “departed from the rules and principles of equity in making the order,” and not whether the appellate court would have made the order. Spedal School Dist. [v. Speer, 75 F.2d 420, 421-22 (8th Cir. 1935)].
Here, we have a distinct basis and specific authority to hear the appeal from an injunction, and the extent of our review is dependent on the decision appealed from. Although we may regret our lack of ability to give a trial court sufficient guidance on remand so that it might avoid, error, we cannot precipitately prevent such error by preempting the trial court’s action. We have long held that our role, for better or worse, is to decline to issue advisory opinions. See SEECO, Inc. v. Hales, 330 Ark. 402, 414, 954 S.W.2d 234, 241 (1997). We are limited to a review of the record before us.
Exhaustion of Administrative Remedies
McLane challenges the judge’s finding that it failed to demonstrate a likelihood of success on the merits because it failed to exhaust its administrative remedies. The test for determining the likelihood of success is whether there is a reasonable probability of success in the litigation. Three Sisters Petroleum, Inc. v. Langley, 348 Ark. 167, 72 S.W.3d 95 (2002). The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Holt v. Holt, 70 Ark. App. 43, 14 S.W.3d 887 (2000).
The Administrative Procedure Act, in Ark. Code Ann. § 25-15-207 (Repl. 2002), provides for petitions for declaratory judgment in circuit court concerning the validity of agency rules or their application that threaten to injure the petitioner. See Douglass v. Nationwide Mut. Ins. Co., 323 Ark. 105, 913 S.W.2d 277 (1996). However, requests for declaratory relief should be denied when there are ongoing proceedings where the issue may be resolved. UHS of Ark., Inc. v. Charter Hosp. of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988).
It is clear that the exhaustion-of-administrative-remedies doctrine applies even when statutes are challenged as unconstitutional. The judge relied on Ford v. Arkansas Game & Fish Comm’n, 335 Ark. 245, 979 S.W.2d 897 (1998), in his finding that McLane should have exhausted its administrative remedies, even though it raised constitutional claims. In that case, Ford had a hearing before the commission pursuant to the Administrative Procedure Act. Before the hearing was complete, he filed a declaratory-judgment action, contending that the statute being applied to him was unconstitutional. The trial court dismissed the action because Ford had not exhausted his administrative remedies. Ford argued on appeal that he was not required to exhaust his administrative remedies because he was raising a constitutional claim which, he contended, the agency was incapable of deciding. The supreme court affirmed and stated:
We have held in numerous cases that a litigant must exhaust his or her administrative remedies before instituting litigation to challenge the action of an administrative agency, except where it would be futile or where there was no genuine opportunity to do so. See, e.g., McCullough v. Neal, 314 Ark. 372, 862 S.W.2d 279 (1993); Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993); Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449, 808 S.W.2d 765 (1991). We have also applied this common-law rule to declaratory-judgment actions filed under Ark. Code Ann. § 25-15-207. See Regional Care Facilities, Inc. v. Rose Care, Inc., 322 Ark. 780, 912 S.W.2d 406 (1995); McEuen Burial Assoc. v. Arkansas Burial Ass’n Bd., 298 Ark. 572, 769 S.W.2d 415 (1989).
Specifically, in Regional Care, the Arkansas Health Services Commission issued Regional Care a permit of approval to build a nursing facility. Regional Care, supra. Rose filed a notice of appeal asking the Commission to reconsider its decision. Id. While the matter was pending before the Commission, Rose filed a declaratory-judgment action in the circuit court. Id. On appeal, Rose argued that pursuant to Ark. Code Ann. § 25-25-207(d) it was not required to exhaust its administrative remedies before seeking a declaratory order from the court. Id. On appeal, we explained that:
“It seems to be now a recognized doctrine that requires administrative relief to be sought before resorting to declaratory procedure, wherever administrative relief is afforded and this requirement is not one merely requiring the initiation of administrative procedure, but the administrative procedure must be pursued to its final conclusion before resort may be had to the court for declaratory relief” . . . declaratory relief is not proper when the identical questions involved in the declaratory proceeding are already at issue between parties in a pending action.
Id. (quoting Rehab Hosp. Serv. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985)). Because Rose filed the declaratory-judgment action before the Commission held its hearing on Rose’s motion for reconsideration, we held that Rose failed to exhaust its administrative remedies. Id.
As in Regional Care, the Commission exercised jurisdiction over the matter by notifying Ford of its intention to revoke his hunting and fishing licenses, and Ford requested an administrative hearing. Hence, it is clear that Ford was not entitled to file a declaratory-judgment action under Ark. Code Ann. § 25-15-207 before he exhausted his administrative remedies before the Commission. Instead of filing a declaratory judgment action, Ford should have raised his constitutional arguments before the Commission, and then appealed the Commission’s final ruling to the circuit court pursuant to Ark. Code Ann. § 25-15-212 (Repl. 1996).
335 Ark. at 250-52, 979 S.W.2d at 900. We find no meaningful distinction between Ford and this case.
Relying on Lincoln v. Arkansas Pub. Serv. Comm’n, 313 Ark. 295, 854 S.W.2d 330 (1993), McLane contends that an administrative agency is without authority to rule on statutes it enforces because of the separation of powers doctrine. We disagree. This argument was rejected in AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 344 Ark. 188, 40 S.W.3d 273 (2001), which the judge also cited as support for his decision. In AT&T, the supreme court acknowledged that it had held in Lincoln v. Arkansas Pub. Serv. Comm’n, supra, that to allow the Public Service Commission to declare unconstitutional a statute that it was required to enforce would violate the separation of powers doctrine; it explained, however, that its holding in Lincoln did “not mean that a constitutional issue should not be raised and developed at the administrative level.” 344 Ark. at 196, 40 S.W.3d at 279 (emphasis in original). In so holding, the court noted that this rule had been followed in appeals involving the Workers’ Compensation Commission, the Arkansas State Board of Architects, and the Arkansas Health Services Agency. We note that in Lincoln, unlike the case before us, an administrative procedure was not in progress when the declaratory-judgment action was filed.
McLane is also incorrect in arguing that AT&T, which was directly appealed from the Public Service Commission to this court and then to the supreme court, is distinguishable from this case because the circuit court was not involved in the proceeding; the considerations supporting the exhaustion-of-remedies doctrine apply equally to declaratory-judgment actions in circuit court. See Regional Care Facilities, Inc. v. Rose Care, Inc., 322 Ark. 780, 912 S.W.2d 406 (1995); Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449, 808 S.W.2d 765 (1991).
McLane further argues that it should not have been required to exhaust its administrative remedies because it challenges the anti-rebating statute as unconstitutional on its face. Again, we disagree and note that this argument was rejected in AT&T. “Raising such constitutional issues before the Commission is significant even when a statute is challenged as unconstitutional on its face, especially since the interpretation given by the agency charged with its execution is highly persuasive. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 69 Ark. App. 323, 13 S.W.3d 197 (2000).” 344 Ark. at 198, 40 S.W.3d at 280. Additionally, McLane has sought in this action to enjoin the Board’s enforcement of the anti-rebating provisions, and it was the Board’s action charging McLane with violations of those provisions that prompted McLane to file suit.
McLane also contends that the Board’s construction of the validity of the anti-rebating provisions is “a foregone conclusion” and that it would have been futile for McLane to exhaust its administrative remedies. See Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998). We do not, however, believe that McLane established the futility of its raising the constitutional issues in the administrative proceeding. Whatever the Board’s decision on the matter, McLane would have been able to appeal its decision to the circuit court. See Ark. Code Ann. § 25-15-212 (Repl. 2002). Also, the Board might have interpreted the statute in a manner that favored McLane’s position or it might have determined that McLane’s conduct did not fall within the terms of the statute.
The judge was correct in finding that McLane was required, and failed, to exhaust its administrative remedies. We hold, therefore, that the judge correctly found that McLane did not establish a likelihood of success on the merits and that he did not abuse his discretion in denying the motion for preliminary injunction.
Affirmed.
Vaught and Baker, JJ., agree.
McLane Company is a wholly-owned subsidiary of Wal-Mart Stores, Inc. McLane Southern is a wholly-owned subsidiary of McLane Company.
In McLane Co., Inc. v. Weiss, the supreme court held that the provisions of the Act and regulation declaring a presumption that sales of cigarettes below a specified level were made with predatory intent were not unconstitutional. The court reversed a summary judgment entered against McLane on another issue. That case has been decided on remand by the circuit court and is now on appeal to the supreme court in Case No. 02-1057.
Warren Wholesale Company, Inc.; Tom Fitts Tobacco Company, Inc.; Douglas Companies, Inc.; Glidewell Distributing Co., Inc.; Southern Wholesale, Inc.; Ritchie Grocer Co., Inc.; Northwest Tobacco and Candy Company; Merritt Wholesale Distributor, Inc.; and Warehouse Distributing, Inc. | [
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] |
John F. Stroud, Jr., Chief Judge.
This appeal from the Arkansas Public Service Commission involves the Commission’s approval of a Temporary Low Income Customer Gas Reconnection Policy (“Policy”). During the winter of 2000-01, the weather was extremely cold, which caused a higher-than-normal use of natural gas; at the same time, natural gas commodity prices were unusually high. These conditions combined to create extraordinarily high natural gas bills, and as a result, many customers had difficulty paying their bills. Consequently, natural gas service to over 30,000 residential customers was disconnected for nonpayment. The reconnect provisions in the Commission’s regulations and in the companies’ tariffs required the payment of a reconnect fee and a security deposit and acceptable arrangements for the payment of the past-due bill prior to restoration of service. In October 2001, approximately 29,500 of these customers remained disconnected.
Recognizing the existence of a public health emergency, the Commission established Docket No. 01-248-U, and in Order No. 1 proposed a remedial policy, established a schedule for comments, and set a date for a public hearing. In Order No. 1, the Commission found that the public interest required it to expeditiously consider an extraordinary assistance program designed to help low-income families in Arkansas obtain reconnection of their natural gas service before the onset of cold winter weather. The proposed policy covered those customers disconnected between January 1, 2001, and November 1, 2001. The Consumer Utilities Rate Advocacy Division of the Arkansas Attorney General’s Office (AG), appellant Arkansas Gas Consumers, Inc., Reliant Energy Arkla (Arkla), Arkansas Western Gas Company (AWG), Arkansas Oklahoma Gas Corporation (AOG), and the Commission’s Staff were made parties to this proceeding. The parties filed initial and reply comments on the proposed policy.
Members of the public presented testimony about the existence of the natural gas emergency and the need for a remedy at the public hearing on November 9, 2001. That day, the Commission issued Order No. 2, which implemented the Policy. It stated:
Many of these disconnected homes are occupied by low. income families that are simply unable financially to raise the necessary dollars to have their disconnected gas service restored. Recognizing that another winter season is about to begin and also in anticipation of another winter of high natural gas costs, the Commission proposed the implementation of the TLICGRP. Without assistance, many of these low-income families will be facing winter without heat for their homes. Without heat, the health, lives and safety of these families will be threatened. Accordingly, the Commission determined that the public interest required the expeditious consideration and implementation of an appropriate low-income family gas reconnection policy.
The Policy temporarily waived the inconsistent reconnect provisions of the Commission’s regulations and of the natural gas companies’ tariffs. The Policy provided that customers whose household income did not exceed 200% of the federal poverty guidelines, and whose service was disconnected between January 1, 2001, and November 1, 2001, and who remained disconnected as of November 9, 2001, could have service reconnected if they (1) entered into a delayed payment agreement (DPA), which provided that the customer pay off his past-due amount by paying a small amount each month for a maximum of thirty-six months; (2) pay the utility’s reconnection charge in full; and (3) agree to participate in the utility’s levelized or average payment program, for at least as long as the term of the DPA, to enable the customer to stay current on his future bills. A final enrollment date of December 31, 2001, was established. Order No. 2 also provided that, in return for reconnecting customers under these conditions, the utilities were permitted to recover, over a period of twelve months and through their purchased gas adjustment (PGA), gas supply rate (GSR), or bill line item adjustment, the total bad debt attributable to customers enrolled in the Policy. Order No. 2 further provided that the participating customers would not be forgiven for any portion of their arrearages and would remain liable to the utility for the full amount of their past-due balances. As they made payments pursuant to the Policy, those payments would be credited to the PGA, GSR, or bill line item adjustment. Also, if a customer defaulted on a payment under the DPA, he would lose the benefits of the Policy, would suffer disconnection of service, and would be subject to all of the normal collection policies.
On November 13, 2001, appellant filed a petition for rehearing. On November 14, 2001, the Commission issued Order No. 3, which was entitled “Errata Order.” That order stated:
The first full sentence of Amendment 1, which begins at the bottom of page 3 and continues at the top of page 4 of Order No. 2 issued on November 9, 2001, is amended to read as follows:
1. Eligibility for the TLICGRP is expanded to cover those low income customers who were disconnected from gas service for non-payment between January 1, 2001, and December 31, 2001, and who remain disconnected as of the date of this order or who are scheduled to be disconnected for nonpayment on or before December 31, 2001, and whose total family income does not exceed 200 percent of the currently approved Federal Poverty Guidelines.
On November 19, 2001, the Commission entered Order No. 4, wherein it stated:
Order No. 2 of this docket, issued November 9, 2001, established and implemented the Temporary Low Income Customer Gas Reconnection Policy (“TLICGRP”). Errata Order No. 3, issued November 14, 2001, amended the first full sentence of Amendment 1 to the TLICGRP as adopted by Order No. 2. On November 15, 2001, Arkansas Oklahoma Gas Corporation (“AOG”) filed a letter request for clarification of Errata Order No. 3. By this order the Commission will address AOG’s request for clarification.
By Order No. 2, as amended by Errata Order No. 3, it was and remains the Commission’s intent to provide a 'program that will enable low income residential customers disconnected from the natural gas utility system to be reconnected before the onset of cold weather. The TLICGRP is intended to assist certain low income customers who are either currently disconnected or are scheduled to be disconnected by December 31, 2001, due to their default on payment for gas usage during the winter heating season of 2000-2001.
On December 12, 2001, appellant filed another petition for rehearing asking the Commission to reconsider Order Nos. 3 and 4. On December 13, 2001, in Order No. 5, the Commission consolidated appellant’s two petitions for rehearing. On January 9, 2002, in Order No. 6, the Commission denied both petitions.
Appellant argues on appeal that the Commission exceeded its authority or, in the alternative, abused its discretion in issuing the Policy, that the Policy is not supported by substantial evidence, and that the ratepayers were denied due process.
Mootness
As a preliminary matter, we must address the AG’s argument that this case is now moot because the Policy has already been implemented. It is true that we do not ordinarily decide moot issues. However, there is an exception to the mootness doctrine for cases that are capable of repetition yet evade review. Paslay v. Arkansas Dep’t of Human Servs., 75 Ark. App. 19, 53 S.W.3d 67 (2001). Also, when a case involves the public interest, or tends to become moot before litigation can run its course, we have, with regularity, refused to let mootness become the determinant. Id.; Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 56, 871 S.W.2d 414 (1994). Because this case involves the public interest and it is possible that this situation may arise again, we will address the merits of appellant’s argument.
Standard of Review
Arkansas Code Annotated section 23-2-423 (c)(4) (Repl. 2002) limits our review of appeals from the Commission; we are to determine only whether the Commission’s findings of fact are supported by substantial evidence, whether the Commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the constitutions of the State of Arkansas or the United States. Brandon v. Arkansas W. Gas Co., 76 Ark. App. 201, 61 S.W.3d 193 (2001). If an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, nor discriminatory, then this court must affirm the Commission’s action. Id. Nevertheless, it is clearly for the courts to decide the questions of law involved and to direct the Commis sion where it has not pursued its authority in compliance with the statutes governing it or with the state and federal constitutions. Id.
The Commission has broad discretion in exercising its regulatory authority, and courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. Consumer Util. Rate Advocacy Div. of the Ark. Attorney General’s Office v. Arkansas Pub. Serv. Comm’n, 76 Ark. App. 557, 69 S.W.3d 896 (2002); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 69 Ark. App. 323, 13 S.W.3d 197 (2000). Administrative action may be regarded as arbitrary and capricious only when it is not supportable on any rational basis, and something more than mere error is necessary to meet the test. Id. To set aside the Commission’s action as arbitrary and capricious, the appellant must prove that the action was willful and unreasonable, made without consideration and with a disregard of the facts or circumstances of the case. Id.
Jurisdiction of the Commission
Of primary concern in this case is the jurisdiction of the Commission, as delegated by the legislature. Appellant contends that the Commission has no authority to provide assistance to low-income families, using ratepayers as the source and public utilities as the conduit, for such assistance. Appellant urges us to hold that this is a matter of public policy that can be addressed only by the General Assembly.
In our view, however, the legislature has already delegated this matter to the Commission. The Commission was created to act for the General Assembly. Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 877 S.W.2d 594 (1994). As a creature of the legislature, it performs, by delegation, legislative functions. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, supra. As such, the Commission possesses the same powers as the General Assembly while acting within its legislatively delegated powers and has very broad discretion in exercising those powers. Id. It is true that, although the Commission is vested with broad authority, it does not have the power to deal exclusively with all matters involving utilities; its jurisdiction extends only to those activities in which the utilities are acting as public utilities. See Ozarks Elec. Coop. Corp. v. Turner, 277 Ark. 209, 640 S.W.2d 438 (1982).
In enacting Ark. Code Ann. § 23-2-304 (Repl. 2002), the legislature set forth the following powers of the Commission:
(a) The commission, upon complaint or upon its own motion and upon reasonable notice and after a hearing, shall have the power to:
(1) Find and fix just, reasonable, and sufficient rates to be thereafter observed, enforced, and demanded by any public utility;
(2) Determine the reasonable, safe, adequate, and sufficient service to be observed, furnished, enforced, or employed by any public utility and to fix this service by its order, rule, or regulation;
(3) Ascertain and fix adequate and reasonable standards, classifications, regulations, practices, and services to be furnished, imposed, observed, and followed by any or all public utilities ....
These enumerated powers, however, are not the full extent of the Commission’s authority. The General Assembly has chosen not to limit the Commission’s jurisdiction to the powers expressly set out in the public utility statutes. Brandon v. Arkansas Pub. Serv. Comm’n, 61 Ark. App. 140, 992 S.W.2d 834 (1999). In Ark. Code Ann. § 23-2-301 (Repl. 2002), the legislature broadly defined the Commission’s authority as follows:
The commission is vested with the power and jurisdiction, and it is made its duty, to supervise and regulate every public utility defined in.§ 23-1-101 and to do all things, whether specifically designated in this act, that may be necessary or expedient in the exercise of such power and jurisdiction, or in the discharge of its duty.
Therefore, in order to address the issue of the Commission’s jurisdiction, we must construe these statutes. The basic rule of statutory construction is to give effect to the intent of the legislature. Southwestern Bell Mobile Sys., Inc. v. Arkansas Pub. Serv. Comm’n, 73 Ark. App. 222, 40 S.W.3d 838 (2001). When the language of a statute is plain and unambiguous, legislative intent is determined from the ordinary meaning of the language used. Id. All statutes relating to the same subject matter must be construed together. Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002). Unambiguous statutes are construed by looking to all laws on the subject, viewing them as a single system, and giving effect to the general purpose of the system. Arkansas County v. Desha County, 342 Ark. 135, 27 S.W.3d 379 (2000). The interpretation of a statute is a judicial function, and the Commission’s construction is not binding on the court. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, supra. Nevertheless, the interpretation given a statute by the agency charged with its execution is highly persuasive, and while not conclusive, it should not be overturned unless it is clearly wrong. Id. Accord AT&T Communications of the S.W., Inc. v. Arkansas Pub. Serv. Comm’n, 344 Ark. 188, 40 S.W.3d 273 (2001). We believe that the Commission is correct in construing these statutes as giving it broad jurisdiction over matters involving public utilities, including those concerning public health and safety.
In support of its argument, appellant quotes the following language of the Commission from a 1998 draft report regarding the restructuring of Arkansas’s electric utility industry:
Utility services have long been recognized as vital to health, safety, and comfort in today’s society, and the Commission is mindful of the hardships that may be imposed on the economically disadvantaged by unnecessarily high utility bills. Assistance in paying those bills or in reducing them through weatherization measures could provide those benefits to low-income families. Nevertheless, whether utilities should provide those benefits or whether they should come from direct tax revenues is a question of state and federal legislation. If it is determined that low-income assistance and weatherization funds should be provided through utility rates, then collection of the subsidies should be done on a competitively neutral fashion.
The Commission will design a competitively neutral way to charge for low-income and weatherization programs, if the General Assembly determines that it is desirable.
In re Implementation of a Competitive Retail Elec. Market-Gen. Principles, APSC Docket No. 97-452-U, Order No. 18 at 75-76 (August 28, 1998).
This quote, however, does not apply to the present case, because the circumstances leading up to its issuance were entirely different from the situation preceding the implementation of the Policy at issue. The Commission’s 1998 draft report was the result of certain generic proceedings initiated by the Commission to address the changes necessary to accommodate the transition from a monopoly environment to a competitive retail electricity market in Arkansas. In one of those proceedings, Docket No. 97-452-U, one of the parties supported a low-income assistance program funded by a competitively neutral surcharge. Also, the AG recommended that utilities and non-utility electric service providers be required to offer assistance to low-income customers through lifeline rates, low-income discounts, deferred billing, and deferred payment plans, to be funded by a .012 percent gross revenue charge. The consensus of a broad spectrum of Arkansas interests in and affected by the electric utility industry, however, recommended that assistance for low-income customers be provided by government agencies rather than be mandated for utilities. As the Commission explained in the above quote, it agreed that these matters should first be addressed by the General Assembly.
The situation before us is easily distinguishable from Docket No. 97-452-U, in which, unlike the present case, no public health and safety emergency required the Commission’s immediate attention. Additionally, the surcharge proposed in Docket No. 97-452-U was not temporary in nature but of unlimited duration, in contrast to the short-term surcharge imposed by the Policy in dispute here. We believe that the Commission’s statements in Docket No. 97-452-U have no application to this case.
Although appellant characterizes the Policy as nothing more than assistance to low-income customers, it must also be regarded as an exercise of the Commission’s legislatively delegated authority to regulate public utilities, to fix reasonable and sufficient rates, and to determine the reasonable, safe, adequate, and sufficient service to be furnished by the natural gas utilities. See Ark. Code Ann. § 23-2-304(a)(l) and (2). The stated purpose of the Policy was to address an undisputed public health and safety emergency, and its intended effect was to enable residential gas customers to heat their homes during the 2001-02 winter. Fur ther, the Policy dealt with activities in which the natural gas companies act as public utilities — the reconnection of gas service to customers and the recovery by the utilities of the costs of providing natural gas utility service. Our construction of the statutes by which the legislature established the Commission’s jurisdiction convinces us that the Commission had jurisdiction to protect the public interest in this manner and that it did not exceed its authority in implementing the Policy.
The Surcharge
As part of its jurisdictional argument, appellant also contends that the Commission exceeded its powers in implementing the method by which the costs of the Policy would be recovered, a temporary surcharge. According to appellant, the Commission has no legal authority to utilize a surcharge in this situation.
Act 310 of 1981, codified at Ark. Code Ann. §§ 23-4-501 through 23-4-509 (Repl. 2002), provides for a surcharge in certain instances. Arkansas Code Annotated section 23-4-502 provides for the implementation of a temporary surcharge under the following conditions:
Any public utility as defined in § 23-1-101 may recover all costs and expenses reasonably incurred by such a utility as a direct result of legislative or regulatory requirements relating to the protection of the public health, safety, and the environment by filing with the Arkansas Public Service Commission, no more frequently than once every six (6) months, an interim rate schedule which would impose a separate surcharge in addition to its currently effective rates until the implementation of new rate schedules in connection with the next general rate filing of the utility wherein such additional expenditures can be included in the utility’s base rate schedules.
Appellant argues that the Policy at issue, implemented by the Commission through its orders, is not the sort of “regulatory requirement” contemplated by Ark. Code Ann. § 23-4-502. Instead, appellant contends, the temporary surcharge authorized by the Act must be for new equipment or expenses that are imposed by governmental requirements adopted between utility rate cases. Act 310 ’s emergency clause stated:
Existing statutes of this State do not provide for a procedure to permit immediate recovery of additional expenditures with respect to existing utility facilities incurred by public utilities as a result of legislative or regulatory requirements without the filing of a general rate case with the Public Service Commission. These circumstances result in a gross inequity in that utilities must make expenditures to provide facilities which are clearly in the public interest which costs cannot be recovered in a prompt and timely manner by the utility. Therefore, an emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in effect from and after its passage and approval.
The policy behind Act 310 is also expressed in Ark. Code Ann. § 23-4-501 as follows:
(a) It is recognized that legislative or administrative regulations impose certain legal requirements upon public utilities relating to the protection of the public health, safety, or the environment, and that:
(1) In order to comply with such legislative or regulatory requirements, utilities are required to make substantial additional investments or incur additional expenses with respect to existing facilities used and useful in providing service to the utility’s customers; and
(2) Although such additional investments and expenses are necessary in order to provide service to the utility’s customers, such additional investments and expenses are not included in the utility’s rates and cannot be recovered in a prompt and timely fashion under existing regulatory procedures.
(b) It is intended by the General Assembly that utilities be permitted to recover in a prompt and timely manner all such costs incurred by utilities in order to comply with such legislative or regulatory requirements through an interim surcharge which, if approved, shall be effective until the implementation of new rate schedules in connection with the next general rate filing of the utility wherein such additional investments or expenses can be included in the utility’s base rate schedules. However, the costs to be recovered through such an interim surcharge shall not include increases in the cost for employment compensation or benefits as a result of legislative or regulatory action.
In Arkansas Oklahoma Gas Corporation v. Arkansas Public Service Commission, 301 Ark. 259, 783 S.W.2d 350 (1990), this statutory subchapter was held to provide for the recovery of the costs associated with the removal of asbestos, as required by federal regulations. The court held that the regulatory requirements related to the protection of public health, safety, and the environment.
We do not construe Act 310 as narrowly as does appellant. We will not interpret a statute so strictly as to reach a conclusion that is contrary to legislative intent. AT&T Communications of the S. W., Inc. v. Arkansas Pub. Serv. Comm’n, supra; Brandon v. Arkansas Pub. Serv. Comm’n, 67 Ark. App. 140, 992 S.W.2d 834 (1999). The legislature has made it clear that we should broadly construe the Commission’s authority to regulate public utilities and to protect the public health and safety. Therefore, construing Act 310 broadly, as we must, we hold that the interim surcharge imposed by the Policy is authorized by Ark. Code Ann. § 23-4-502 because it serves to recoup the costs associated with a regulatory requirement relating to the protection of the public health and safety. Even though this requirement was imposed on the utilities by order and not by rule or regulation, it was implemented by the administrative agency to which the legislature has delegated the regulation of public utilities. In our view, the Policy is no less a “regulatory requirement” than those promulgated by rule or regulation by other governmental entities.
In another context, rate regulation, we have said many times that the Commission has wide discretion in choosing its approach and that we do not advise the Commission concerning how to make its findings or exercise its discretion. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 58 Ark. App. 145, 946 S.W.2d 730 (1997). The Commission is free, within the confines of its statutory authority, to make the pragmatic adjustments that may be called for by particular circumstances. Bryant v. Arkansas Pub. Serv. Comm’n, 54 Ark. App. 157, 924 S.W.2d 472 (1996). We are generally not concerned with the method used by the Commission in calculating rates so long as the Commission’s action is based on substantial evidence. Id. We have often said that it is the result reached, and not the method used, that primarily controls. See id. Additionally, we have frequently stated that judicial inquiry terminates if the Commission’s decision is supported by substantial evidence and the total effect of the order is not unjust, unreasonable, unlawful, or discriminatory. See id. Accord Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. 213, 907 S.W.2d 140 (1995). The same principles should apply in this case.
Additionally, we believe that, even if there were no section 23-4-502, the Commission has, within its broad authority, the power to create and implement methods for recouping the costs of remedial policies such as this. As discussed above, the legislature has expressly given the Commission authority to regulate public utilities, to fix reasonable and sufficient rates, and to determine the reasonable, safe, adequate, and sufficient service to be furnished by the gas utilities. See Ark. Code Ann. § 23-2-304. The legislature has explicitly given the Commission the power to do “all things, whether specifically designated in this act, that may be necessary or expedient in the exercise of such power and jurisdiction . . . .” Ark. Code Ann. § 23-2-301. In exercising this power, the Commission is acting for the General Assembly and has the same powers that body would have. Using its expertise in such matters, the Commission created the surcharge and limited its duration to a twelve-month period. In our view, the temporary surcharge was a necessary and expedient method by which to recoup the costs associated with the implementation of a policy that was squarely within the Commission’s jurisdiction to impose.
Illegal Exaction
Pointing out that the Commission has no taxing authority, see Arkansas Const, art. II, § 23, appellant also argues that the Policy is an illegal exaction, i.e., a tax that is not authorized by law. None of the cases cited by appellant, however, stand for the proposition that the temporary surcharge at issue is a tax. We therefore reject this argument.
Rate Differences
In its second point on appeal, appellant argues that the Policy has no relationship to the cost of service and, therefore, discriminates among similarly-situated ratepayers in violation of Ark. Code Ann. § 23-3-114 (Repl. 2002). This statute provides:
(a)(1) As to rates or services, no public utility shall make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage.
(2) No public utility shall establish or maintain any unreasonable difference as to rates or services, either as between localities or as between classes of service.
(b) The commission, in the exercise of its jurisdiction granted by this act, may fix uniform rates applicable throughout the territory served by any public utility whenever in its judgment public interest requires such uniform rates.
(c) The commission may determine any question or fact arising under this section.
The statute, however, does not prohibit rate differences; it merely prevents unreasonable rate differences. In Bryant v. Arkansas Public Service Commission, 57 Ark. App. 73, 941 S.W.2d 452 (1997), we affirmed the Commission’s order approving a stipulation allowing a natural gas distribution company to raise rates and to allocate 98% of the rate increase to residential ratepayers. We found that substantial evidence supported the Commission’s approval of corridor rates for customers for whom bypass to an alternative natural gas source was economically feasible. The result in that case was that other customers paid the rates lost due to some customers’ election to receive corridor rates.
Additionally, we have recognized that a cost-of-service study is merely one tool that may be used in rate-design determinations; that noncost factors can also be taken into consideration; and that a ratemaking agency can establish different rates for different classes of customers. In Bryant v. Arkansas Public Service Commission, 50 Ark. App. 213, 238, 907 S.W.2d 140, 154 (1995), we affirmed the Commission’s decision in which the Commission had balanced both cost and noncost factors and had made choices among public-policy alternatives. “Different rates are certainly related to the cost of service but, . . . that concept involves a ‘myriad of facts’ and other considerations are also proper.” Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 20 Ark. App. 216, 224, 727 S.W.2d 146, 151 (1987).
Generally, what is reasonable is a question of fact. See Salem v. Lane Processing Trust, 72 Ark. App. 340, 37 S.W.3d 664 (2001). In light of the undisputed public-health-and-safety emergency that prompted the Commission’s decision, the Policy’s temporary advantage to a class of low-income customers was reasonable under the circumstances.
Single-Issue Ratemaking
Calling the Policy a “general rate increase that must be addressed in a general rate case,” appellant contends in its third point that the Policy constitutes unlawful single-issue ratemaking that violates Ark. Code Ann. § 23-4-406 (Repl. 2002). Arkansas Code Annotated section 23-4-406 sets forth the implementation of rate increases within the context of a general rate case as follows:
For the purpose of justifying the reasonableness of a proposed new rate schedule, a utility may utilize either a historical test period of twelve (12) consecutive calendar months or a forward-looking test period of twelve (12) consecutive calendar months consisting of six (6) months of actual historical data derived from the books and records of the utility and six (6) months of projected data which together shall be the period or test year upon which fair and reasonable rates shall be determined by the Arkansas Public Service Commission. However, the commission shall also permit adjustments to any test year so utilized to reflect the effects on an annualized basis of any and all changes in circumstances which may occur within twelve (12) months after the end of the test year where such changes are both reasonably known and measurable.
Appellant argues that, because the statute requires examination of all of a utility’s expenses and' revenues, the Commission cannot grant a rate increase for “one isolated expense” and abandon the traditional rate-of-return method of setting utility rates. However, the statutes dealing with general rate increases come into effect when a public utility requests a change in its rates or charges. See Ark. Code Ann. § 23-4-401(a) (Repl. 2002). Here, the surcharge imposed by the Policy was not requested by the utilities.
Additionally, the topic of single-issue ratemaking has rarely been addressed in cases appealed from the Arkansas Public Service Commission. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 58 Ark. App. 145, 946 S.W.2d 730 (1997). However, it has been held in other states that the rule against single-issue ratemaking applies only to the treatment of one expense item in the context of a general rate case, not when a surcharge is expressly provided for by statute. See Pennsylvania Indus. Energy Coalition v. Pennsylvania Pub. Util. Comm’n, 653 A.2d 1336 (Pa. Commw. Ct. 1995), aff'd, 543 Pa. 307, 670 A.2d 1152 (1996). This principle was expressed in Citizens Utility Board v. Illinois Commerce Commission, 166 Ill.2d 111, 137-38, 651 N.E.2d 1089, 1102 (1995):
The utilities argue that the principles set forth in Business & Professional People regarding single-issue ratemaking do not apply except in the context of a complete base rate proceeding. We agree. In the present case, we are not faced with the Commission’s treating a single-expense item within the context of a general rate case. In contrast, a rider mechanism merely facilitates direct recovery of a particular cost, without direct impact on the utility’s rate of return. The prohibition against single-issue ratemaking requires that, in a general base rate proceeding, the Commission must examine all elements of the revenue requirement formula to determine the interaction and overall impact any change will have on the utility’s revenue requirement, including its return on investment. The rule does not circumscribe the Commission’s ability to approve direct recovery of unique costs through a rider when circumstances warrant such treatment.
Appellant further contends that this Policy is ill-advised as a matter of public interest. We disagree. As we explained above, the Commission implemented the Policy, which is temporary in duration, to address an emergency that threatened the health and safety of thousands of natural gas customers in Arkansas. In light of the Commission’s broad discretion in exercising its regulatory authority, we cannot say that its decision to implement the Policy to meet this emergency was arbitrary, capricious, or against public policy.
Cost Recovery
In its fourth point on appeal, appellant argues that the Policy improperly guarantees the utilities’ recovery of a portion of their bad debt and points out that utilities have no guaranteed level of earnings from their operations. This appears, however, to be a reargument of appellant’s contention that the Commission is not free to abandon the traditional rate-of-return method for setting rates. For the same reasons we expressed above, we also reject this argument.
Double Recovery
Citing Ark. Code Ann. § 23-4-103 (Repl. 2002), which requires that utility rates be just and reasonable, appellant notes in its fifth point that the utilities’ existing base rates already include an amount for bad debt and asserts that the utilities will recover their bad-debt expense twice.
We disagree. The Policy does not cover all of the bad debt attributable to all customers, but only to those customers who enroll in the Policy. Also, the surcharge at issue is of limited duration. Further, Robert Booth, the manager of the Commission’s gas and water utilities section, testified that it seemed unlikely that double recovery would occur.
Sufficiency of the Evidence
Appellant contends in its sixth point on appeal that, even if the Commission had authority to implement the Policy, its decision is not supported by substantial evidence. In order to prove that a Commission decision is not supported by substantial evidence, the appellant must show that the proof before the Commission was so nearly undisputed that fair-minded persons could not reach the conclusion the Commission did. Southivestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 68 Ark. App. 148, 5 S.W.3d 484 (1999). Evaluation of testimony is for the Commission, not the courts; to hold that testimony does not constitute substantial evidence, we must find that the testimony has no rational basis. Bryant v. Arkansas Pub. Serv. Comm’n, 57 Ark. App. 73, 941 S.W.2d 452 (1997). We view only the evidence that is most favorable to the appellee in cases presenting questions of substantial evidence. Id. For purposes of determining whether an administrative agency’s decision is supported by substantial evidence, the question on review is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id.
Appellant argues that there was no evidence that customers who could not pay their bills for the winter of 2000-01 would be able to pay them during the winter of 2001-02. Appellants are incorrect. At the public hearing, several witnesses testified that eligible customers would probably be able to make the payments called for by the Policy. Also, the record contains written documentation of the financial obstacle created by the standard up-front reconnection costs. Further, the parties’ pre-filed comments generally agreed on the need for the Commission to address this problem. In any event, the Commission did not issue the Policy for the purpose of decreasing the utilities’ outstanding bad debt but to protect the health and safety of thousands of natural gas customers affected by an unprecedented emergency, the existence of which appellant does not dispute. The Commission’s decision is supported by substantial evidence.
Order Nos. 3 and 4
Appellant contends in its sixth and seventh points that Order Nos. 3 and 4 should be reversed because they are not supported by any evidence and do not contain additional findings. As it had proposed in Order No. 1, the Commission issued its Policy in Order No. 2, covering customers whose natural gas service had been disconnected for nonpayment between January 1, 2001, and November 1, 2001. Order No. 3 extended the eligibility date to cover customers whose service was disconnected on or before December 31, 2001. In Order No. 4, the Commission responded to a request for clarification of Order No. 3, stating that the Policy applied to customers who were then disconnected or who would subsequently be disconnected prior to December 31, 2001, for default in payment for their gas usage during the 2000-01 winter heating season.
Arkansas Code Annotated section 23-2-421 (a) (Repl. 2002) requires that the Commission’s decision be in sufficient detail to enable any court in which the action of the Commission is involved to determine the controverted question presented by the proceeding. Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm’n, 70 Ark. App. 42, 19 S.W.3d 634 (2000). However, it is not required that the Commission make findings of fact upon all items of evidence or issues, nor even necessarily to answer each and every contention raised by the parties; the findings should be sufficient to resolve material issues, or those raised by the evidence that are relevant to the decision. Bryant v. Arkansas Pub. Serv. Comm’n, 54 Ark. App. 157, 924 S.W.2d 472 (1996).
We hold that additional findings were not necessary and that the evidence that supports Order No. 2 equally supports Order Nos. 3 and 4. In Order No. 3, entitled “Errata Order,” the Commission indicated that it was correcting Order No. 2 to reflect what the Commission had originally intended — that the eligibility period would coincide with the enrollment period. In Order No. 4, the Commission clarified Order No. 3, stating that qualifying customers’ debts must be for gas usage during the previous year’s winter heating season. Thus, Order Nos. 3 and 4 simply corrected and clarified Order No. 2, which was issued after public notice, comment, and a hearing. There was no question that the purpose of the Policy implemented in Order No. 2 was to address the emergency created by the unusual conditions of the winter of 2000-01 and the thousands of customers who remained, at the start of the next winter, unable to pay their bills for the winter of 2000-01.
Due Process
In its eighth and final point on appeal, appellant faults the Commission’s failure to give notice to, and invite comment by, the public and the parties before entering Order Nos. 3 and 4. Appellant argues that the extension of the eligibility cut-off date from November 1, 2001, to December 31, 2001, set forth in Order No. 3, and clarified in Order No. 4, violated ratepayers’ due process rights. Appellant concedes, however, that due process was afforded with respect to Order No. 2.
A fundamental requirement of due process in matters of public utility regulation is a full and fair hearing, and a basic element of a full and fair hearing is that all those whose rights are involved have the opportunity to be heard, to submit evidence and testimony, to examine witnesses, and to present evidence or testimony in rebuttal to adverse positions. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 58 Ark. App. 145, 946 S.W.2d 730 (1997); Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 877 S.W.2d 594 (1994). Appellant, in attacking the procedure before the Commission as a denial of due process, has the burden of proving its invalidity. Id. The concept of due process requires neither an inflexible procedure universally applicable to every situ ation nor a technical concept with a fixed content unrelated to time, place, and circumstance. State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999). Instead, what process must be afforded is determined by context, dependent upon the nature of the matter or interest involved. Id. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Id.
Under the circumstances, appellant and the ratepayers received all of the process they were due. The question of customer eligibility for the Policy, which was designed to address the emergency created the previous winter, was wholly within the scope of the proceedings held prior to the entry of Order No. 2. That order was simply corrected and clarified by Order Nos. 3 and 4.
Also, appellant has failed to demonstrate how the change in eligibility date made in Order Nos. 3 and 4 will adversely affect the ratepayers. Error unaccompanied by prejudice, commonly called harmless error, is not ground for reversal. McCoy Farms, Inc. v. J&M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978), cert. denied, 439 U.S. 862 (1978). The harmless-error rule applies even when the error is of constitutional proportions. Id.
Affirmed.
Robbins, Vaught, and Baker, JJ., agree.
Hart and Roaf, JJ., dissent.
Eligible debits would include not only existing past-due amounts but also new unpaid debt incurred between January 1, 2001, and April 30, 2002, while the customer was a participant in the program.
Appellant also relies on Acme Brick Co. v. Arkansas Public Service Commission, 227 Ark. 436, 299 S.W.2d 208 (1957). In our view, Acme Brick is irrelevant in the context of this case. In Acme Brick, the court compared the rate-base method to the fair field method in determining the net profits that a utility can earn; it did not address the issues presented in. this case.
Appellant was a party to that stipulation.
Reverend Dalton Jones, Jonetta Davis, Janet Miles, Tasha O’Neil, and Jody Love were the witnesses who testified at the hearing.
Appellant also asserts that the Commission abused its discretion in Order Nos. 3 and 4 because those orders gave customers an incentive to default on their obligations. Appellant, however, has offered nothing to substantiate this claim. | [
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Wendell L. Griffen, Judge.
This appeal arises from a probation-revocation hearing in Crittenden County, Arkansas. Appellant argues that the trial court did not have jurisdiction to revoke his probation where the revocation occurred after the probationary term had expired and where, according to appellant, he had not been arrested during the probation period for matters relating to his probation. Alternatively, appellant argues that the trial court erred in denying his motion to dismiss where the revocation hearing did not take place within a reasonable time. We reverse and dismiss on the first point of error.
On December 4, 1996, appellant pleaded guilty to possessing cocaine and received a sentence of five years’ supervised probation, costs, fines, and probation fees. The probation had a number of standard conditions, among others that appellant (1) not violate any state, federal, or municipal law, and, in summary, (2) cooperate with probation officers and law enforcement agents. On July 22, 1997, the State filed a revocation petition, alleging failure to report to the probation officer and failure to pay probation fees, fines, and costs. The State sent a notice of hearing for August 18, 1997, to appellant. Appellant did not appear at that hearing. The trial court issued an alias warrant for his arrest, citing possession of a controlled substance. However, appellant was not arrested until September 19, 2000.
On September 28, 2000, the State filed an amended petition to revoke appellant’s probation, again alleging failure to report to his probation officer, failure to pay probation fees, failure to pay fines and costs, but also adding new violations, namely theft by receiving, driving while license suspended, driving with no liability insurance, and failure to appear. A preliminary hearing occurred on October 2, 2000, at which appellant appeared before the trial court. The court set the revocation hearing for October 9, 2000, and released appellant on bond. However, the October 9 hearing never took place, for reasons unbeknown to us. Subse quently, the State filed a second amended petition to revoke appellant’s probation on December 19, 2001, alleging the same violations as in the previous petitions, but adding one new violation, interference with law officer. The court set the hearing for December 31, 2001. At that hearing, appellant moved to dismiss the petition alleging lack of jurisdiction and a speedy-trial violation. The trial court denied both motions and revoked appellant’s probation on the grounds that he failed to report to his probation officer, failed to pay probation fees, fines, and costs, and failed to appear at the August 18, 1997, hearing. This appeal followed.
Jurisdiction to Revoke Probation
Appellant chiefly asserts that the trial court did not have jurisdiction to revoke his probation because the revocation occurred after the end of the probationary term and there were no circumstances allowing for revocation after the end of the probationary term. The recent Arkansas Supreme Court case, Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002), governs appellant’s argument. In that case, Susie Carter received five years of probation. Id. The State filed a series of petitions to revoke probation. Id. Carter failed to appear for her probation revocation hearing, and the trial court issued an alias bench warrant for her arrest. Id. However, unlike the instant case, the trial court in Carter set aside the bench warrant. Id. Afterwards, the revocation hearing was postponed two times upon the request of Carter. Id. Consequently, the order revoking probation did not occur until five years and twenty-four days after entry of the probation order. Id.
The Arkansas Supreme Court decided that the issue of whether a circuit court can revoke probation after expiration of the probation period is one of jurisdiction. Id. The court further extensively discussed the relevant section of the Arkansas Code, namely Ark. Code Ann. § 5-4-309 (Supp. 2001) (in relevant parts unchanged from the Repl. 1993 version of the section relied upon by the State in the instant case). Specifically, a trial court can revoke probation “subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of. . . probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.” Ark. Code Ann. § 5-4-309(e). However, in a less recent case, the Arkansas Supreme Court held a warrant for arrest sufficient for probation revocation purposes where the warrant was issued within the probationary period. Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996). The Carter opinion distinguished Richmond from the case before it by pointing out that Richmond was arrested for violation of probation, but Carter merely was arrested for failure to appear. Carter v. State, supra. In summary of the Carter case, the supreme court held that the circuit court lost jurisdiction to revoke Carter’s probation under Ark. Code Ann. § 5-4-309 (e) when her probation period expired without her having been arrested for a probation violation and without an arrest warrant having been issued for violation of probation. Carter, supra.
In the case at bar, we hold that appellant was not arrested for a violation of his probation conditions within the meaning of Carter and its interpretation of Arkansas Code Ann. § 5-4-309 (e). It is true that appellant was arrested pursuant to an alias warrant issued during his probationary period and that the warrant was issued on August 18, 1997, well within the probation period ending December 4, 2001. It is also true that appellant was arrested during the probationary period, on September 19, 2000. However, the alias warrant cited as reason for the arrest possession of a controlled substance, and not probation violation. Therefore, we must reverse and dismiss on this point.
In light of our disposition of appellant’s first assignment of error, we do not need to reach appellant’s second argument.
Reversed and dismissed.
Robbins and Bird, JJ., agree. | [
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Andree Layton Roaf, Judge.
This appeal is from a trial court’s ruling on cross-motions for summary judgment. The trial court granted summary judgment to appellee, Horace A. Piazza & Associates (Piazza), an architectural firm, requiring East-Harding, Inc. (East-Harding), a contractor, to indemnify Piazza for its attorney fees incurred in the settlement of an injured construction worker’s suit against appellants, appellee, and another firm. We reverse and remand for further proceedings.
Timothy Gault (not a party) suffered serious injuries in a construction accident when he fell from a spiral staircase that had been purchased from Duvinage Corporation. At the time of his injury, Gault was employed as a construction worker by Little Rock Electrical Contractors, Inc. (not a party), a subcontractor of East-Harding. East-Harding was the general contractor of the construction project at the Wildwood Park for the Performing Arts (Wildwood). Piazza was the project architect. Gault brought suit against East-Harding, Piazza, and Duvinage Corporation. The suit, alleging causes of action for product liability and negligence, was settled without a finding of fault on the part of either East-Harding or Piazza. Piazza filed a cross-complaint against East-Harding for breach of the contract between East-Harding and Wildwood, which provided that East-Harding shall maintain insurance covering Piazza. Piazza amended the cross-complaint to seek indemnity under the contract. The indemnity provision at issue is part of American Institute of Architects (AIA) document A117, 1987 edition, and provides:
14.12 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect’s consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense if attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss of expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 14.12.
Paragraph 14.12.2 provides:
The obligations of the Contractor under this Paragraph 14.12 shall not extend to the liability of the Architect, the Architect’s consultants, and agents and employees of any of them arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, Construction Change Directives, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the Architect, the Architect’s consultants, and agents and employees of any of them provided such giving or failure to give is the primary cause of the injury or damage.
Piazza filed a motion for summary judgment on its cross-complaint for indemnification. East-Harding then filed a cross-motion for summary judgment contending that the above indemnification provision does not apply because paragraph 14.12.2 provides that its duty of indemnification did extend to Gault’s complaint that Piazza itself was negligent. At the hearing on the cross-motions for summary judgment, the parties stipulated that there had not been a finding of fault on the part of either East-Harding or Piazza. East-Harding also argued that the “but only to the extent caused” language in paragraph 14.12 limits the scope of its liability only to that portion of “claims, damages, losses and expenses” caused by the negligence of East-Harding or those under its supervision. East-Harding further argued that, even though Piazza did not design the stairs, because they were a prefabricated kit, Piazza was nevertheless precluded from seeking indemnity because Piazza prepared or approved the design and drawings which included the specifications of the stairs. The trial court found that the indemnification provision applied, even without a finding of fault on East-Harding’s part. The trial court also found that there was no evidence that Piazza was at fault. This appeal followed.
East-Harding argues (1) that the indemnity agreement required a finding of fault on East-Harding’s part before the indemnity provision would apply; (2) that the exclusion for Piazza’s negligence would preclude application of the indemnity provision; and (3) that the order entered by the trial court did not accurately reflect the trial court’s ruling on the cross-motions for summary judgment. Essentially, the first two points ask the same question, i.e., whether the trial court properly interpreted the indemnity provisions, and we will address it as one question. At oral argument, East-Harding abandoned the. third point, and we need not address it.
Our court recently outlined the procedure regarding summary judgment in Regions Bank & Trust, N.A. v. Stone County Skilled Nursing Facility, Inc., 73 Ark. App. 17, 38 S.W.3d 916 (2001). There, we stated:
The purpose of a summary judgment hearing is not to try the issues, but rather to determine if there are any issues to try. The trial court must consider all proof in favor of the non-moving party. Once the moving party proves there are no genuine issues, the burden shifts to the non-moving party to set out specific facts that demonstrate there are genuine issues for trial. On summary judgment appeal, we limit our review to the pleadings, affidavits, and other supporting documents filed by the parties in support of their arguments. We review all evidence in the light most favorable to the non-moving party, and only reverse the trial court when we determine that a material question of fact remains. We need only decide if the grant of summary judgment was appropriate, considering whether the evidentiary items presented by the moving party in support of the motion left a material question of fact not answered.
Id. at 21-23, 38 S.W.3d at 919 (citations omitted).
Indemnity arises by virtue of a contract and holds one liable for the acts or omissions of another over whom he has no control. See Pickens-Bond Constr. Co. v. North Little Rock Elec. Co., 249 Ark. 389, 459 S.W.2d 549 (1970). Contracts of indemnity are construed in accordance with our rules for the construction of contracts generally. Nahholz Constr. Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995). The first rule of interpretation is to give to the language employed by the parties the meaning they intended. Koppers Co. v. Missouri Pac. R.R. Co., 34 Ark. App. 273, 809 S.W.2d 830 (1991). Given the nature of indemnification, our courts have held that the language imposing indemnity must be clear, unequivocal, and certain. Nabholz, supra. For instance, in Arkansas Kraft Corp. v. Boyed Sanders Construction Co., 298 Ark. 36, 764 S.W.2d 452 (1989), our supreme court interpreted an indemnity contract. The court noted as follows:
[A] subcontractor’s intention to obligate itself to indemnify a prime contractor for the prime contractor’s own negligence must be expressed in clear and unequivocal terms and to the extent that no other meaning can be ascribed. While no particular words are required, the liability of an indemnitor for the negligence of an indemnitee is an extraordinary obligation to assume, and we will not impose it unless the purpose to do so is spelled out in unmistakable terms.
Id. at 39, 764 S.W.2d at 453.
The construction and legal effect of a written contract are to be determined by the court as a question of law, except where the meaning of the language depends on disputed extrinsic evidence. Arkansas Rock & Gravel Co. v. Chris-T-Emulsion Co., Inc., 259 Ark. 807, 536 S.W.2d 724 (1976). Indemnity agreements are construed strictly against the party seeking indemnification. See Potlatch Corp. v. Missouri Pac. R.R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995).
We reverse the summary judgment because we believe that there are questions of fact that must be determined, that is, whether Gault’s injuries were caused in whole or in part by the negligent acts or omissions of East-Harding or those for whose actions East-Harding may be responsible. It is this inquiry that determines whether East-Harding is obligated to indemnify Piazza. If the trial court determines that Gault’s injuries are caused in whole or in part by East-Harding or those for whom it is responsible, a percentage of fault, if any, must be assigned to Gault, East-Harding, Piazza, and Duvinage, and East-Harding will be required to reimburse Piazza for East-Harding’s percentage of the expenses and attorney fees.
In Pickens-Bond Construction Co. v. North Little Rock Electric Co., supra, the court analyzed an overly-broad indemnity provision and ruled that the electric company, as subcontractor, agreed to indemnify Pickens-Bond, the general contractor, in any action for work-related damages, except those solely caused by Pickens-Bond’s negligence. The pertinent indemnity language was: “He shall specifically and distinctly assume, and does assume, all risks of damage or injury from whatever cause to property or persons used or employed on or in connection with his work. . . .” Id. at 391, 459 S.W.2d at 551 (emphasis added). The trial court entered summary judgment for the electric company. The supreme court reversed, holding that a factual issue existed as to whether there was neghgence on the part of Pickens-Bond that was the sole proximate cause of the accident. The court held that, in the event of such negligence, Pickens-Bond could not recover under the indemnity contract. On remand, at the close of the evidence, the trial court directed a verdict in favor of Pickens-Bond on the theory that the electric company had not met its burden of proving that Pickens-Bond was guilty of negligence that was the sole proximate cause of the explosion and injuries. The trial court was affirmed on appeal. North Little Rock Elec. Co. v. Pickens-Bond Constr. Co., 253 Ark. 172, 485 S.W.2d 197 (1972).
Courts in other jurisdictions, considering indemnification provisions virtually identical to the one at issue in the present case, have agreed that the phrase “but only to the extent caused” expresses the intent to limit the indemnitor’s liability .to that portion of fault attributed to the indemnitor. See, e.g., Braegelmann v. Horizon Dev. Co., 371 N.W.2d 644, 646 (Minn. Ct. App. 1985) (holding that “[t]he additional phrase ‘to the extent caused’ . . . suggests a ‘comparative negligence’ construction under which each party is accountable ‘to the extent’ their negligence contributes to the injury”). See also, e.g., MSI Constr. Managers, Inc. v. Corvo Iron Works, Inc., 208 Mich. App. 340, 527 N.W.2d 79 (1995) (holding that the words “to the extent” meant that the indemnitor was only responsible for reimbursing the indemnitee for that portion of the indemnitee’s liability which represented the indemnitor’s negligence). In Martin & Pitz Associates, Inc. v. Hudson Construction Services, Inc., 602 N.W.2d 805 (Iowa 1999), the Iowa Supreme Court held that the indemnity obligation of the AIA General Conditions did not provide indemnification for a claim against the architect alleging solely the negligence of the architect. Other cases adopting this view include Hagerman Construction Corp. v. Long Electric Co., 741 N.E.2d 390 (Ind. Ct. App. 2000); Buchanan v. Rentenbach Constructors, Inc., 922 S.W.2d 467 (Mo. Ct. App. 1996); Dillard v. Shaunessy, Fickel & Scott Architects, Inc., 884 S.W.2d 722 (Mo. Ct. App. 1994) (applying Kansas law); Mautz v. J.P. Patti Co., 298 N.J. Super. 13, 688 A.2d 1088 (App. Div. 1997); Greer v. City of Philadelphia, 568 Pa. 244, 795 A.2d 376 (2002).
In contrast, in Oster v. Medtronic, Inc., 428 N.W.2d 116 (Minn. Ct. App. 1988), the court considered an indemnity agreement without the “but only to the extent” language and held that the indemnity obligation extended to all claims, including those caused by the party seeking indemnification.
Piazza argues that Gault’s complaint did not state a cause of action for architectural malpractice. However, the complaint did make allegations of negligent design, manufacture, and installation of the spiral staircase. In this case, Piazza was responsible for the approval of the specifications and design of the project; therefore, any claim of negligent design involving the staircase would necessarily be directed only at it or the manufacturer of the staircase, Duvinage. This is where paragraph 14.12.2 becomes applicable.
East-Harding also argues that- its duty to defend and indemnify Piazza did not arise because Gault’s complaint included a claim against Piazza for professional negligence. We do not agree. Paragraph 14.12.2 of the indemnity clause excludes indemnification for “the liability of the Architect” (emphasis added) resulting from his professional negligence. Although Gault’s principal contention against Piazza during trial may have been his professional negligence, the case settled without finding any party to be Hable.
Our interpretation is consistent with the analysis of other jurisdictions that have considered identical language in construction indemnity agreements. In Bartak v. Bell-Gallyardt & Wells, Inc., 473 F. Supp. 737 (D.S.D. 1979), rev’d on other grounds, 629 F.2d 523 (8th Cir. 1980), the district court was required to construe an indemnity provision without the “but only to the extent caused” language. In Bartak, the district court, in construing the exclusionary provision, held “that the intent of the parties to the contract was to forego any indemnification if the liability of the architect arose from the preparation of the drawings, designs and specifications.” Id. at 740 (emphasis added). Because the jury assessed the architects’ liability to plaintiffs at thirty-five percent, the court denied the architects’ indemnity against the contractor, but assessed costs of others against architects consistent with their thirty-five percent liability to plaintiffs. In other words, the architects were entitled to indemnification under this provision unless they were found liable. Similarly, in Henningson, Durham & Richardson v. Swift Bros., 739 F.2d 1341 (8th Cir. 1984), the Eighth Circuit indicated that “resulting liability” as found by the jury would bar indemnification under this language. Hillman v. Leland E. Burns, Inc., 209 Cal. App. 3d 860, 869, 257 Cal. Rptr. 535 (1989), and McCarthy v.J.P. Cullen & Son Corp., 199 N.W.2d 362 (Iowa 1972), reached the same conclusion.
These cases interpret the language of the exclusion at issue here to indicate that it is a finding of liability, not merely a claim for negligence, that triggers the exclusion. Because the language at issue here is a standard provision in the industry, we believe that a consistent interpretation is appropriate.
Further, we note that an action for damages arising from the professional services of an architect rarely excludes claims of professional negligence. If we accept East-Harding’s argument, that the indemnity provisions of the contract excluded all actions against the architect based on professional negligence claims regardless of the architect’s liability therefor, we would essentially eliminate any scope for the indemnity agreement. It would be inapplicable if the standard claim of an architect’s professional negligence was made and never resulted in establishment of the architect’s liability. That result would violate the fundamental rule of construction that a contract must be interpreted so as to render it operative, reasonable, and capable of being effectuated. Hillman, supra.
Reversed and remanded.
Hart and Robbins, JJ., agree.
Appellant Robert East Co., Inc., was the predecessor entity of East-Harding, Inc., and the contractor prior to merging with Harding.
The allegations against Piazza were for negligence in the installation, use, and design of the stairway, as well as failure to properly supervise the manufacturer of the stairs. The allegations against East-Harding were for its failure to maintain a proper and safe workplace, failure to warn of unsafe conditions, failure to inspect for safety violations, and failure to properly supervise the construction site workers.
The amount of the settlement is not contained in the record. Piazza did not contribute to the settlement. | [
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Olly Neal, Judge.
The appellants, Doris Ross, Walter Harlen, and Jessie Harlen, purport to appeal from a decision of the Conway County Circuit Court denying their motion for default judgment. On appeal, they assert that the trial court erred by denying their motion for default judgment due to the appellees’ failure to answer their counterclaim. The appellees, Orval and Evelyn Jones, assert that we lack jurisdiction because the appellants’ notice of appeal was filed prior to the court’s order adjudicating their counterclaim for default judgment. We agree; therefore, we dismiss without prejudice.
The facts of this case are as follows. Appellant, Doris Ross, is the daughter of Johnnie Harlen and is his legal guardian. The appellees and Johnnie Harlen purchased a tract of land in Conway County. Johnnie Harlen subsequently conveyed his interest to the appellees in exchange for a life estate in the property. After being appointed Johnnie Harlen’s guardian, appellant Ross allowed her brothers, appellants Walter Harlen and Jessie Harlen, to move onto the property. On May 10, 1999, the appellees filed a complaint seeking to eject appellants Walter and Jessie Harlen from the property. The appellants filed a timely answer and counterclaim on May 20, 1999. In their counterclaim, the appellants asked that the deed from Johnnie Harlen to the appellees be canceled because: (1) the transfer was made without valuable consideration; (2) the deed was executed at a time when Johnnie Harlen was not legally competent; (3) the transfer was the result of undue influence, fraud, and misrepresentation. The appellees failed to respond to the appellants’ counterclaim. On June 13, 2001, a hearing was held on the matter. At the hearing, the appellants moved for default judgment because the appellees had failed to respond to their counterclaim. At the conclusion of the hearing, the court granted the ejectment; however, it reserved ruling on the counterclaim and gave the appellees an opportunity to respond to appellants’ motion for default judgment. The appellees filed a response on June 22, 2001.
On August 3, 2001, the court filed its order granting the ejectment. The appellants filed their notice of appeal on August 14, 2001. In the notice of appeal, the appellants stated:
Comes the Defendant Doris Ross, Guardian of Johnnie J. Harlen; Walter Harlen; and Jessie Harlen and hereby gives notice that she appeals from the entry of the Order entered on August 3, 2001, and designates as the record on appeal, all pleadings, testimony, evidence, and exhibits, and all other items of pleadings testimony, exhibits, and other evidence considered by the court prior to the entry of the Order. Doris Ross has ordered a transcript from the Circuit Clerk and Court Reporter as verified by the attached letter.
Given this 13th day of August, 2001.
An order adjudicating the counterclaim in favor of the appellees was entered on November 14, 2001.
On appeal, the appellants assert that the court erred when it denied their motion for default judgment on their counterclaim. The appellees assert that the appellants’ appeal should be dismissed because no notice of appeal has been filed as to the order denying the relief sought in the counterclaim. We agree.
Rule 4(a) of the Arkansas Rules of Appellate Procedure — Civil provides that a notice of appeal shall be filed within thirty days from the entry of the judgment, decree, or order appealed from. Rule 4(a) further provides that “a notice of appeal filed after the circuit court announces a decision but before the entry of the judgment, decree, or order shall be treated as filed on the day after the judgment, decree, or order is entered.” Here the notice of appeal was not timely filed. On June 13, 2001, the court announced that it was granting the ejectment and reserving ruling on the appellants’ counterclaim until after the appellees filed a response to the appellants’ motion for default judgment. The appellees’ response was filed on June 22, 2001. However, there was no subsequent oral pronouncement from the court adjudicating the counterclaim. On August 3, 2001, an order was entered that solely addressed the issue of ejectment. The appellants filed their notice of appeal on August 14, 2001. In that notice, they specifically stated that they were appealing from the order entered on August 3, 2001. The court announced its judgment on the counterclaim in an order entered on November 14, 2001. The appellants’ notice of appeal was antecedent to the court’s pronouncement of judgment on their counterclaim; thus, their notice of appeal was premature and the appeal must be dismissed. Because we are dismissing the appeal, we do not reach the appellants’ argument on appeal.
Dismissed.
Gladwin and Roaf, JJ., agree. | [
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Frank Holt, Justice.
This case involves the payment of $90,000 for 97 Vz acres of land by the Chicot County Court with federal revenue sharing funds. Appellants, as taxpayers, brought suit in chancery court against the county judge, appellee, for an order declaring the quorum court appropriation illegal and void and, consequently, the expenditure therefrom for the land purchase was invalid. Appellants contend on appeal that the chancellor erred by failing to accept jurisdiction and by not voiding the appropriation and the resulting expenditure of the federal funds by the appellee. The chancellor was correct.
In December, 1972, Chicot County received $204,000 in revenue sharing funds. The quorum court met January 2, 1973, and authorized the expenditure of the funds within the “priority expenditures” listed by 31 U.S.C.A. § 1222 (A). Approximately three months later, the appellee, sitting as the county court, approved payment from the federal revenue sharing funds, as appropriated, for the property which was then deeded to the county. There is expert testimony that the value of the land is at least $1,000 per acre and there is no allegation or assertion of fraud. The “basic thrust” of appellants’ argument is that the quorum court’s appropriation was void; consequently, the expenditure from the appropriation for the “real property was necessarily void.” Appellants urge that the transaction should be rescinded and cancelled. The seller, however, is not a party to the action.
Appellants rely heavily upon Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726 (1974), and the cases cited therein as authority for their contention that the chancery court has jurisdiction in this taxpayers’ action since it relates to illegal exactions which are impermissible by Ark. Const. (1874), Art. 16, § 13. We do not agree with the appellants that Mackey and the cases cited therein, which are thoroughly discussed, are applicable in the case at bar. Typically, in Mackey the injunction proceeding was against the proper officials to prevent the alleged misapplication or expenditure of public funds based upon the contention that the appropriation in issue was improper and constituted an illegal exaction of tax funds. In the case at bar, the action is brought against the appellee only after the expenditure for a claim which was approved by the appellee in his judicial capacity as the county court. There is no fraud alleged or in any manner shown in the allowance and payment of the claim. In Ark. Association of County Judges v. Green, 232 Ark. 438, 338 S.W. 2d 672 (1960), we aptly said:
“We agree with appellant that the Chancery Court had no jurisdiction to order repayment of claims already allowed. In the absence of fraud (and we think no fraud was shown here) the remedy was by appeal to the Circuit Court. See Art. 7 § 33 Constitution, Ark. Stats. § 27-2001, and Jones v. Capers, 231 Ark. 870, 333 S.W. 2d 242.
See also Monroe County v. Brown, 118 Ark. 524, 177 S.W. 40 (1915).
In the case at bar, it necessarily follows that appellants’ proper remedy was by appeal to the circuit court from the county court’s allowance and payment of the claim.
Affirmed. | [
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