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ANNABELLE Clinton Imber, Justice.
The natural father ststepmother ice. appeal the Randolph County Chancery Court’s decision to grant the minors’ maternal grandmother visitation rights. On appeal, appellants Scott and Mary Ennis Tate contend that the action by appellee Jo Bennett seeking visitation rights under Ark. Code Ann. § 9-9-215(a)(l) (Repl. 1998) was barred by the one-year statute of limitations in Ark. Code Ann. § 9-9-216(b) (Repl. 1998). We agree and reverse and dismiss.
Scott and Cheryle Tate were a married couple with two children, Savanah and Jay Tate. On January 4, 1993, Cheryle Tate died in an automobile accident and was survived by her husband and two minor children. On May 14, 1994, Scott Tate married Mary Ennis Tate. Subsequently, Mary began proceedings to adopt Scott’s two children. She filed a petition for adoption-on November 22, 1994, and a hearing was held in the Randolph County Probate Court on January 18, 1995. On January 23, 1995, the probate court entered an interlocutory decree of adoption, ordering that Savanah and Jay be adopted by Mary. The final adoption decree was filed on July 3, 1995.
More than two years later, on September 30, 1997, Jo Bennett, the maternal grandmother of Savanah and Jay Tate, filed a complaint in Randolph County Chancery Court seeking custody of the children or, in the alternative, visitation rights. It is undisputed that Mrs. Bennett never received official legal notice of the earlier adoption proceedings. In the complaint, Mrs. Bennett alleged that the children had been physically and mentally abused by the Tates, which may have led to psychiatric treatment for Savanah. The complaint further stated that the children were living in an unstable environment and that Savanah was in danger.'Following a hearing on March 15, 1999, the trial court entered an order, finding that Mrs. Bennett had received no legal notification of the earlier adoption proceedings as required under Ark. Code Ann. § 9-9-212(g), “and her visitation rights therefore shall not be terminated.” The trial court’s order also set out specific dates and times for the children to visit their grandmother, Mrs. Bennett. From that March 23, 1999 order the Tates bring this appeal.
The Tates argue that the trial court erred in awarding Mrs. Bennett visitation rights. Specifically, they argue that the provisions for grandparent visitation contained in Ark. Code Ann. 9-9-215(a)(1) (Repl. 1998) are not applicable in the present case for three reasons. With regard to grandparent visitation, section 9-9-215(a)(1) states in relevant part:
A final decree of adoption ... [has] the following effect as to matters within the jurisdiction or before a court of this state: ... [T]o terminate all legal relationships between the adopted individual and his natural relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes. ... However, in cases where a natural or adoptive parent dies before a petition for adoption has been filed by a stepparent of the minor to be adopted the Court may grant visitation rights to the parents of the deceased natural or adoptive parent of the child if such parents of the deceased natural or adoptive parent had a close relationship with the child prior to the filing of a petition for step-parent adoption, and if such visitation rights are in the best interest of the child.
Ark. Code Ann. § 9-9-215(a)(l) (Repl. 1998).
For one of their three arguments, the Tates contend that Mrs. Bennett is not entitled to visitation under section 9-9-215(a)(1) because she was barred from filing her custody/visitation action by the one-year statute of limitations found in section 9-9-216(b), which states in relevant part:
Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner, upon any ground, including ... failure to give any required noticef.]
Ark. Code Ann. § 9-9-216(b) (Repl. 1998). The Tates assert that Mrs. Bennett’s action for custody/visitation, which was filed more than one year after issuance of the adoption decree, questions the adoption decree. Mrs. Bennett, on the other hand, asserts that section 9-9-216(b) is not applicable because “[n]either the adoption, nor the decree itself was questioned in this hearing.” We disagree. This court has consistently held that adoption statutes are to be stricdy construed and applied. See, e.g., Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). The language of section 9-9-216(b) is broad and reaches “any manner” of attack on the adoption decree based upon “any ground.” Here, Mrs. Bennett was clearly challenging the effect of the adoption decree by claiming rights under section 9-9-215 of the Revised Uniform Adoption Act. Because she did not file her complaint seeking visitation rights within one year of the decree’s issuance, she is now barred from doing so pursuant to section 9-9-216(b).
However, the trial court found that Mrs. Bennett did not receive legal notification of the adoption proceedings as required by Ark. Code Ann. § 9-9-212(g) (Repl. 1993). Although section 9-9-216(b) expressly provides that the one-year statute of limitations applies to challenges based on a failure to give the required notice, we have held that it is a denial of due process to apply the one-year statute of limitations to the natural father of the adopted child if the father was not given notice of the adoption proceedings. McKinney v. Ivey, 287 Ark. 300, 698 S.W.2d 506 (1985). There, the due process violation arose because an unwed father who demonstrates a full commitment to the responsibilities of parenthood acquires substantial protection under the due process clause. Lehr v. Robertson, 463 U.S. 248 (1983). Here, no similar due process violation would arise because the Revised Uniform Adoption Act in effect at the time of the adoption proceedings did not provide for grandparent visitation rights. Ark. Code Ann. 9-9-215 (Repl. 1993). In Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), this court said: “any rights existing in grandparents must be derived from statutes....” Id. at 304, 619 S.W.2d at 620. Grandparent visitation rights were not added to the adoption statutes until 1995 when the General Assembly enacted Act 889 of 1995, which became effective on July 28, 1995. The notice provisions of sections 9-9-212(a) and (g) required that notice be provided to Mrs. Bennett twenty days before the date of the hearing on the adoption petition. The hearing on the adoption petition occurred on January 18, 1995. Thus, at the time that notice to Mrs. Bennett was required, she had no visitation rights subject to protection by the due process clause. Accordingly, we hold that a due process violation did not result from the lack of notice, and Mrs. Bennett’s action was barred by the one-year statute of limitations in section 9-9-216(b). The trial court erred in ruling otherwise.
In light of our holding that this action is barred by Ark. Code Ann. § 9-9-216(b), we need not address the Tates’ other arguments for reversal.
Reversed and dismissed.
The record reflects that Mrs. Bennett had frequent contact with Savanah between April 1996 and July 1997 when Savanah was living in Alabama with her natural mother’s sister, Jennifer Taylor.
The supplemental record reflects that the Juvenile Division of Randolph County Chancery Court transferred legal custody of Savanah to Mrs. Bennett on June 28, 1999.
When Act 889 was approved on April 4, 1995, it did not contain an emergency clause or a specified effective date. Pursuant to Amendment 7 of the Arkansas Constitution, acts of the General Assembly that do not contain an emergency clause or a specified effective date become effective ninety days after adjournment of the legislative session at which they were enacted. Priest v. Polk, 332 Ark. 673, 912 S.W.2d 902 (1995); State v. Ziegenbein, 282 Ark. 162, 666 S.W.2d 698 (1984). The 1995 regular session of the General Assembly adjourned on April 28, 1995, and Act 889 of 1995 became effective on July 28, 1995. Op. Att’y Gen. No. 95-119.
Mrs. Bennett might have been able to file for visitation rights under Act 889 of 1995 before the one-year statute of limitations expired. Nonetheless, the statutory notice provisions did not require that notice be given to Mrs. Bennett at any time other than at least twenty days prior to the January 18, 1995 hearing date. Ark. Code Ann. § 9-9-212(a) and (g)- | [
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PER Curiam.
On November 10, 1998, judgment was iam. reflecting that Sheri Lynn Langston, who was also known as Sheri Lynn Smith, had been found guilty by a jury of negligent homicide and leaving the scene of an accident with a fatality. The judgment also reflected that her probation for two earlier felony offenses had been revoked. An aggregate term of 252 months’ imprisonment was imposed. Langston was represented at trial by her retained attorney, Robert Depper. No appeal was taken, and Langston now seeks to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure — Criminal, which permits a belated appeal in a criminal case in some instances.
Petitioner Langston contends that she informed Mr. Depper on the day the judgment was entered that she desired to appeal and was informed that he would not appeal the judgment because she was unable “to meet the price quoted.” It is the practice of this court when a pro se motion for belated appeal is filed and the record does not contain an order relieving trial counsel to request an affidavit from the trial attorney in response to the allegations in the motion. There is no order relieving Depper in the partial record filed with the motion in this case. This affidavit is requested because Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appeEate court to withdraw in the interest of justice or for other sufficient cause. We have held, however, that a defendant may waive the right to appeal by his or her failure to inform counsel of the desire to appeal within the thirty days aEowed for filing a timely notice of appeal under Rule 4 (a) of the Rules of AppeEate Procedure. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997); Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).
The United States Supreme Court has recently held that an attorney’s performance is deficient under the Sixth Amendment to the Constitution if counsel faEs to consult with his or her client about the advantages and disadvantages of an appeal and does not make a reasonable effort to discover the convicted defendant’s wishes if there is reason to think either (1) that a rational defendant would want to appeal, or (2) that the particular defendant in question has demonstrated to counsel that he or she is interested in appealing. Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000). There is a presumption of prejudice arising from the faEure of counsel to perfect an appeal if counsel’s deficient performance led to the forfeiture of the convicted defendant’s right to pursue a direct appeal. The defendant has the burden of demonstrating that, but for counsel’s deficient performance, he would have timely appealed. Roe, supra, citing Strickland v. Washington, 466 U. S. 668 (1984), and Hill v. Lockhart, 474 U. S. 52 (1985). The question of whether a defendant has made the requisite showing wiE turn on the facts of the particular case. Evidence that there were nonfrivolous grounds for appeal or that the defendant promptly expressed a desire to appeal are relevant in making the determination. The mere fact, however, that the defendant cannot show nonfrivolous grounds does not foreclose the possibility that he can show that he would have appealed had counsel consulted with him. Roe, supra.
Mr. Depper did not respond to the letter requesting that he submit an affidavit. As a result, we will accept petitioner’s assertion that she expressed her desire to appeal on the day the judgment was entered, and find that Depper was obligated to perfect the appeal. Parker v. State, 303 Ark. 185, 792 S.W.2d 619 (1990). See also Davis v. State, 293 Ark. 203, 736 S.W.2d 281 (1987). If petitioner was unable to pay the cost of the appeal, Depper was obligated to lodge a partial record in the appellate court to preserve the appeal. Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997). Upon lodging the partial record, counsel would then have been in a position to file a motion in the appellate court for his client to proceed as an indigent and to be appointed himself or to have other counsel appointed; or, if Langston was not in fact indigent at that time, to file a motion to be relieved as counsel. Under no circumstances may an attorney who has not been relieved by the trial court abandon an appeal where he is aware within the thirty days allowed to file a notice of appeal that the convicted defendant desires to appeal simply because defendant cannot pay for the appeal. A convicted criminal defendant is entitled to effective assistance of counsel on appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his or her first appeal when counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985). To extinguish a defendant’s right to appeal because of his or her attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987).
Langston has appended to the motion for belated appeal an affidavit asserting her indigency. The State has not contested that assertion, and she will be permitted to proceed in forma pauperis on appeal. Mr. Depper remains attorney-of-record and is appointed to represent the appellant. Our clerk will lodge the partial record; counsel is directed to file within thirty days a petition for writ of certiorari to bring up the record, or that portion of it, necessary for the appeal.
A copy of this opinion shall be forwarded to the Arkansas Supreme Court Committee on Professional Conduct.
Motions granted. | [
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PER CURIAM.
Appellant Frank Williams, Jr., by and through AM. attorney Alvin Schay, has filed a motion for an extension of time to file appellant’s brief. Appellant was convicted of capital murder and sentenced to death by lethal injection. Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). He then filed a petition for postconviction relief, and the petition was denied. He now appeals the denial of that petition.
On October 18, 1999, the record in this appeal was lodged with the clerk of this court and a briefing schedule was set. Appellant’s brief was due on November 29, 1999. On November 23, 1999, we granted an extension for filing the appellant’s brief to January 28, 2000. On January 27, 2000, we granted the appellant an extension for filing his brief to March 28, 2000, and noted that this was the “final extension.” On March 24, 2000, the appellant requested another extension until April 17, 2000, and on April 12, 2000, he requested still another extension until April 27, 2000.
The motion for an extension of time until April 27, 2000, is granted.
We order Mr. Schay to appear before this court at 9:00 a.m. on May 11, 2000, to show cause why he should not be held in contempt for failing to file appellant’s brief within the time frame of the final extension. | [
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PER CURIAM.
On March 7, 2000, Walter Urquhart filed a petition AM. writ of mandamus in this court contending that the Honorable Fred Davis, Circuit Judge, had failed to act within a reasonable time on a pro se petition for declaratory judgment that was filed in his court on April 2, 1999. On the day the mandamus action was filed here, one of our staff attorneys wrote to Judge Davis to ascertain the status of the petition for declaratory judgment. There was no response to the letter. On March 16, 2000, the Attorney General responded to the mandamus action, urging that the petition be denied because there was no clear showing that the respondent had failed to perform his duty. The compliance reports filed by Judge Davis with the Administrative Office of the Courts for the periods since the petition for declaratory judgment was filed make no mention of the Urquhart petition.
On April 20, 2000, our staff attorney again wrote to Judge Davis inquiring about the status of the petition for declaratory judgment. When there was no response to the letter, the staff attorney again wrote to Judge Davis on May 11, 2000. There was also no response to that letter, and Judge Davis’s office was contacted by telephone on June 1, 2000. Judge Davis’s case coordinator said at that time that a ruling would likely be entered on June 2, 2000, and a copy would be mailed to this court. The order was not received, and on June 7, 2000, our staff attorney left a message with Judge Davis’s office asking that a filemarked copy of the order be faxed here. There has been no response to the message. On June 9, 2000, our staff attorney contacted the circuit clerk who reported that the Urquhart order had still not been entered.
While we have consistently recognized that the independence of the bench in our judicial system requires that the trial judge control his docket and the disposition of matters filed, this is not to say that a matter should be delayed beyond a time reasonably necessary to dispose of it. Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989). The Code of Judicial Conduct, Canon 3(B)(8), requires that a judge dispose of all judicial matters promptly. As Judge Davis has not responded to letters inquiring about the Urquhart petition and has not reported its pending status to the Administrative Office of the Courts and the response filed by the Attorney General does not explain the reason for the delay in acting on the petition, we must conclude that there is no good cause to justify the delay in ruling on the petition for declaratory judgment.
The writ of mandamus is granted. We direct that Judge Davis enter a order on Urquhart’s petition for declaratory judgment within seven days of the date of this decision.
A copy of this opinion will be forwarded to the Arkansas Judicial Disability and Discipline Commission.
Petition granted. | [
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J. Fred Jones, Justice.
The appellant Jesse Ferguson, along with one Robert E. Foshee, was charged by information filed by the prosecuting attorney, with the crime of “Armed Robbery committed as follows, to-wit: That the said Defendant(s) did on or about the 24th day of May, 1973, in the District of Poinsett County, Arkansas, unlawfully, violently, feloniously, by force and intimidation, and by use and employment of a firearm, namely a rifle, take from the person of one Ralph Morgan the sum of $250 in currency. . .
At a jury trial the appellant was found guilty and his punishment fixed at a term of four years in the Arkansas Penitentiary on the charge of robbery, with an additional two and one-half years added for the use of a firearm. The trial court entered judgment accordingly with the two and one-half years to run consecutively to the four years.
The appellant did not appeal from the judgment so entered but on January 15,1974, he filed an ex parte petition for post-conviction relief under the Criminal Procedure Rule No. 1. He alleged in his petition that his conviction in connection with the use of a firearm was invalid because he was not informed of that part of the charge by indictment, warrant, or otherwise, and was not aware that he was to be tried “for the weapon charge in addition to the charge of armed robbery.” The appellant also contended that “armed robbery” is not a criminal offense provided by law or statute, and that his con viction of armed robbery and also using a firearm in the commission of a felony, placed him in double jeopardy in violation of his constitutional rights. The trial court denied the appellant’s petition for relief under findings of fact recited by the trial court as follows:
“1. On the 10th day of October, 1973, the petitioner, after a trial was found guilty by a jury of Armed Robbery and guilty of Commission of a Robbery with a Firearm and his punishment was set at four years in the State Penitentiary for Robbery and two and one-half years for Commission of a Robbery with a Firearm. The court entered judgment on said verdict and sentenced petitioner to a term of six and one-half years, said four year sentence and two and one-half sentence to run consecutively and petitioner was committed to the Department of Correction for the State of Arkansas. An appeal was not prosecuted. Throughout these proceedings, petitioner was represented by Michael Everett, Attorney, of Marked Tree, Arkansas, appointed counsel.
2. On the 15th day of January, 1974, petitioner filed a petition herein seeking post-conviction relief, alleging that he was not informed by indictment or a warrant that he was to be tried for the weapon charge in addition to the charge of Armed Robbery; that said charge is not provided by law or statute; that said charge placed petitioner twice in jeopardy; that said charge represents an attempt by the prosecution to enhance the punishment and the finding and sentence is otherwise subject to collateral attack because the evidence does not substantiate the verdict or the sentence.”
On appeal to this court the appellant has designated the points he relies on for reversal as follows:
“Petitioner was not informed by indictment, warrant or otherwise aware that he was to be tried for the weapon charge in addition to the charge of armed robbery.
The aforementioned charge is not provided by law or statute.
The aforementioned charge placed the petitioner twice in jeopardy.
The aforementioned charge represents an attempt by the prosecution to enhance the punishment received for being found guilty of armed robbery.
The finding and sentence is otherwise subject to collateral attack because the evidence does not substantiate the verdict or the sentence.”
The appellant’s first point was answered adversely to his contention in our recent case of Ilaynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975), and we find no merit to this contention. The appellant’s other points are likewise without merit. The crime of robbery is defined in Ark. Stat. Ann. § 41-3601 (Repl. 1964) as:
. the felonious and violent taking of any goods, money or other valuable thing from the person of another by force or intimidation; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.”
“Robbery” and “armed robbery” are not designated by statute as separate crimes in Arkansas but we hold, that the word “armed” preceding the word “robbery,” as used in the information in the case at bar, was simply descriptive of the nature of the force or intimidation allegedly employed and, as further explained in the information, by use of the words “by use and employment of a firearm, namely a rifle. ...” The proper time to object to the form of an information or indictment is at the arraignment or call of the indictment for trial. Ark. Stat. Ann. § 43-1206 (Repl. 1964) Johnson v. State, 223 Ark. 929, 270 S.W. 2d 907. We find no merit to appellant’s points two, three and four.
As to the appellant’s last point, Ralph Morgan, the robbery victim, testified as to the intimidation by the robber in carrying a rifle under his right arm and waving it at him (the victirrj) when he (the robbei) demanded the money. A nine year old boy, who was also an eyewitness to the robbery, testified as to the use of a rifle in the commission of the crime.
The judgment is affirmed.
Brown and Fogleman, JJ., concur; Byrd, J., dissents. | [
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J. Fred Jones, Justice.
This is a workmen’s compensation case in which Mack Noble, a 58 year old ironworker, sustained an injury to one leg below the knee while in the course of his employment by Johnson Construction Company. The injury resulted in a 30% loss of use of the leg below the knee and Mr. Noble was paid workmen’s compensation benefits based on that loss. He subsequently filed claim for additional compensation and the Commission awarded benefits for permanent total disability. The circuit court affirmed the Commission and the question before us on appeal, as relied on by the appellants, is whether there was any substantial evidence to sustain the award of permanent total disability.
The claimant testified that when he stands on his feet for more than an hour, the pain in his injured leg increases and his foot swells. He said it is then necessary for him to lie down and elevate his foot. He testified that he had been a journeyman ironworker since 1953 and prior to that he worked as a carpenter. He said he has no education; that he had nothing wrong with him prior to his accident, and that he knows of no remunerative employment he can now engage in because of his injured leg. He testified that he had not attempted to find work because he knows of nothing he would be able to do; that he is currently drawing $254.10 per month in Social Security benefit payments and has not applied for rehabilitation or retraining of any type.
Mr. Charles Trantham, an ironworker foreman, testified that he had been an ironworker for 22 years. He testified as to various physical requirements demanded of a journeyman ironworker and testified that as an ironworker foreman, he would not employ or approve Mr. Noble for employment because of his physican condition.
Dr. Dean C. Andrew testified that even though Mr. Noble could not return to his prior employment, he did have transferable skills and there were jobs available in south Arkansas which Mr. Noble could perform. Dr. Andrew said, however, that Mr. Noble’s educational limitations, together with his physical limitations, might functionally preclude him from obtaining employment. He mentioned such jobs available in Mr. Noble’s home county of Ashley as night watchman or guard.
Dr. E. R. Hartmann testified that Mr. Noble had a 30% disability to the leg below the knee based on joint stiffness of the right foot and ankle. He testified that the condition of the claimant’s foot was inconsistent with work requiring walking, squatting or walking on rough or uneven ground. He said Mr. Noble would have difficulty with eight hours of weight bearing on his foot. He said he felt that Mr. Noble could perform such jobs as working around a table on even or smooth surfaces and such jobs as night watchman in a building, or where his walking would be on smooth surfaces.
The appellants cite Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W. 2d 41, in support of their contention that there is no substantial evidence to support the Commission’s finding of permanent total disability. We are of the opinion, however, that the evidence in the case at bar places it more in the category of Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W. 2d 863, rather than the Shelnutt Nursing Home case.
The appellants cite McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502, where we first held that benefits for scheduled injuries under Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960) are not limited to the schedule when the scheduled injury renders the claimant totally disabled. The appellants then cite Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573, wherein we held that where the injury is to a scheduled member, the Commission cannot award disability benefits greater than the rating for permanent partial physical imparimnet provided in the schedule unless the disability is permanent and total. The appellants then state, in connection with the case at bar, as follows:
“As the only rating of permanent partial physical impairment is Dr. Hartmann’s evaluation of thirty percent to the leg below the knee, the Workmen’s Compensation Commission was put in the awkward position of either finding that the appellee had a disability of thirty percent to the leg below the knee or that he is permanently and totally disabled. The Commission, with Commissioner Cross dissenting, adopted the latter finding.”
The appellants then argue that:
“It is obvious that the appellee is not permanently and totally disabled and in so finding the majority of the Commission was simply attemtping to avoid the harsh results of the holding in the Anchor Construction Company case, supra. In this regard, the appellants respectfully suggest to this Court that perhaps the Anchor Construction Company case, supra, should be reexamined.”
The appellants then earnestly urge that we re-examine our holding in Anchor Const. Co. v. Rice, supra, but in presenting their argument that we do so, the appellants practically adopt the same reasoning and argument presented in the dissenting opinion to Anchor Const. Co. v. Rice. This court has already had an opportunity to re-examine the decision in Anchor Const. Co. v. Rice, supra, and has failed to reverse or modify the opinion in that case. We have reaffirmed our holding in Anchor in the cases of Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W. 2d 82, and Cooper Ind Products v. Worth, 256 Ark. 394, 508 S.W. 2d 59 (1974). The Mc-Neely and Meadowlake cases may be distinguishable to some degree from Anchor in that in McNeely the award of total disability was not stated to be permanent; and in Meadowlake the injury was to the head of the femur requiring the installation of a prosthesis in the hip joint and thus, perhaps, distinguishable as affecting the body as a whole rather than being confined strictly to the scheduled injury to the leg. The Cooper case, however, was not thus distinguishable.
In Cooper Ind Products v. Worth, supra, the question was squarely presented as to whether an injury to the right knee rendered the claimant permanently and totally disabled. In that case by majority opinion we again reaffirmed our holding in the Achor Const. Co. case and citing Meadowlake Nursing Home v. Sullivan, we applied Ark. Stat. Ann. § 81-1313 (a) (Repl. 1960) notwithstanding the provisions of subsection (c) and affirmed the Commission’s award of permanent and total disability. The dissenting opinion in the Cooper case leaves no doubt that Anchor has been re-examined by this court and that Anchor still holds.
We, therefore, agree with the appellee that the Anchor Const. Co. case is current Arkansas law and we conclude that if it is to be changed in the foreseeable future, it must be done by legislative act rather than decision of this Court.
The judgment is affirmed. | [
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W.H. “Dub” Arnold, Chief Justice.
On March 25, ustice. Ricky Leon Crisp, of two counts of second-degree murder in connection with the deaths of Crisp’s sixteen-month-old daughter, Vicky Crisp, and a four-month-old girl, Sidney Pippin. While babysitting the children on April 25, 1998, Crisp left the children unattended in his vehicle. Both children died of asphyxia as a result of excessive heat, also known as heat stroke. Crisp was charged with two counts of first-degree murder, pursuant to Ark. Code Ann. section 5-10-102(a)(3), given the victims’ ages. Alternatively, the State charged Crisp with causing the deaths “under circumstances manifesting extreme indifference to the value of human life” while committing either of two underlying felonies: (1) first-degree endangering the welfare of a minor, or (2) a felony controlled-substance crime. See Ark. Code Ann. § 5-10-102 (a)(1). Following his convictions for second-degree murder, Crisp was sentenced to fourteen years’ imprisonment in the Arkansas Department of Correction.
Crisp’s sole point on appeal challenges the sufficiency of the evidence supporting his second-degree-murder convictions. On cross-appeal, the State argues that the trial court erred by granting directed verdicts on two counts of felony murder. Specifically, the State seeks a declaration of error, rather than reversal, because it is “satisfied that the error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law” requires our review. See Ark. R. App. P. — Crim. 3(c) (2000).
The Court of Appeals certified this case for us to consider the State’s appeal in a criminal case and significant issues needing clarification or development of the law. Accordingly, our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. l-2(d)(l) and l-2(b)(5) (2000). First, we decline to reach the merits of appellant’s argument because he failed to properly preserve it for appeal. Consequently, Crisp’s convictions for second-degree murder are affirmed. Second, we affirm the trial court on the State’s cross-appeal.
I. Sufficiency of evidence
For his sole point on appeal, Crisp argues that the State failed to present sufficient evidence to support his convictions for second-degree murder. Ark. Code Ann. section 5-10-103(a)(l) states that a person commits murder in the second degree if he “knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” The culpable mental state of “knowingly” is defined in Ark. Code Ann. section 5-2-202(2). That section provides that:
A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result[.]
(Emphasis added.) In particular, Crisp asserts that the State failed to establish that he was “aware” or knew that his conduct was “practically certain” to result in the children’s deaths.
In response, the State maintains that we cannot reach the merits of appellant’s argument because he failed to preserve the issue for our review and failed to provide convincing argument or authority in support of his position. Indeed, to preserve an appellate challenge to the sufficiency of the evidence supporting a conviction for a lesser-included offense, a defendant must make a specific and timely objection at trial. See Ark. R. Crim. P. 33.1(c); see also Jordan v. State, 323 Ark. 628, 632, 917 S.W.2d 164, 165 (1996) (failure to question sufficiency of evidence for lesser-included offenses, either by name or by apprising trial court of offenses’ elements, constituted waiver).
Ark. R. Crim. P. 33.1(c) states that a defendant’s failure to challenge the sufficiency of the evidence at the close of the State’s case and at the close of all evidence, via a motion for directed verdict, will constitute a “waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.” A review of the record confirms that appellant failed to make timely, specific objections to the proof supporting the second-degree-murder offenses. In fact, at the close of the State’s case, appellant moved for directed verdicts only with respect to the first-degree-murder charges and the felony-murder charges.
After considering appellant’s motions, the trial court denied directed verdicts for the first-degree-murder charge and the felony-murder charge grounded on the allegation of endangering the welfare of a minor. However, the trial court granted a directed verdict as to the felony-murder charge relating to possession of a controlled substance. Ultimately, at the close of all evidence, the trial court granted appellant’s renewed motion for a directed verdict with respect to the remaining felony-murder charge. Consequently, the jury was instructed to consider the offenses of first-degree murder, and the lesser-included offenses of second-degree murder, manslaughter, and negligent homicide.
The only basis for finding that Crisp objected to a second-degree-murder charge arises from his discussion with the court at the close of the State’s case. Appellant professed that:
At this point there is nothing upon which a jury could go forward on any of the charges as currently existing before the Court. We would, therefore, Your Honor, move for a directed verdict on murder in the first degree, on a felony murder, Count I, possession, or actual possession of a controlled substance, and also on Count III, the endangerment of a child.
(Emphasis added.) However, Ark. R. Crim. P. 33.1(c) provides that “a motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.” Here, not only is appellant’s general objection insufficient to satisfy the requirements of Ark. R. Crim. P. 33.1(c), it is also clear that appellant intended to object only to the first-degree-murder charge and the felony-murder charges. In sum, appellant’s directed-verdict motion lacked the specificity required to preserve a challenge to the second-degree-murder charges.
Further, in light of appellant’s failure to specifically challenge the sufficiency of the State’s case for second-degree murder, the trial court had no opportunity to rule on the issue. Without a ruling from the trial court, we have no basis for a decision and we are precluded from reviewing Crisp’s argument. See Hood v. State, 329 Ark. 21, 26, 947 S.W.2d 328, 331 (1997). In light of the foregoing, we decline to reach the merits of Crisp’s appeal and we affirm his conviction.
II. Cross-appeal
In its brief on cross-appeal, the State argues that the trial court erred by directing a verdict on the felony-murder charge, with the underlying felony offense of endangering the welfare of a minor. However, a review of the record and the State’s supplemental abstract reveals that the State specifically filed its notice of cross-appeal pursuant to Ark. R. App. P. — Crim. 3(a)(2). Rule 3(a)(2) permits the State to take an interlocutory appeal from a pretrial order, entered in a criminal prosecution, that suppresses a defendant’s confession. Here, the State has no right to cross-appeal via Rule 3(a)(2). Accordingly, we affirm the trial court’s dismissal of the State’s felony-murder charge relating to endangering the welfare of a minor. | [
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ROBERT L. Brown, Justice.
Appellant Sue Burke is a sticeCity . Huntington, a city of the second class located in Sebastian County. She brought suit on behalf of herself and other adversely affected taxpayers against the appellees who are various city officials as well as the City itself for the refund of funds which, she contended, were illegally paid and, therefore, constituted an illegal exaction. The circuit court denied her relief. She now appeals that order and contends that (1) there is no statutory authority permitting the mayor of the City to authorize purchases and to contract for labor and materials up to $5,000, and (2) health insurance premiums were illegally paid on behalf of the City’s waste water operator, and he should be required to refund that money to the City. We agree on both points and reverse the circuit court’s order.
On June 22, 1998, Burke filed suit, alleging that certain actions taken by the City amounted to an illegal exaction. One of her allegations concerned an ordinance passed by the city council on June 9, 1986. According to the complaint, this ordinance was based on Ark. Code Ann. § 14-58-303 (Repl. 1998), which provides that cities of the first class may enact an ordinance delegating to the mayor the authority to make purchases and contract for labor and materials when the amount involved is less than $10,000 without prior consultation with the city council. Burke asserted in her complaint that because Huntington is a city of the second class, the delegation of authority to the mayor pursuant to § 14-58-303 was unauthorized and illegal.
A second allegation in the complaint concerned the payment of health insurance premiums for Arnold Elmore, the waste water operator. On December 11, 1990, the city council approved the payment of this insurance for the mayor, -the recorder, and the public works director. At the time of this approval, the public works director was Kennith Elmore, who was also the waste water operator. When Kennith Elmore assumed the position of mayor, Craig Cotner was hired as the public works director, and Arnold Elmore was hired as the waster water operator. However, the city council never approved payment of health insurance benefits for the waste water operator, Arnold Elmore. In light of this, Burke alleged in her complaint that Arnold Elmore should repay the health insurance premiums. She also alleged wrongful payment of continuing education expenses and cellular phone bills, but these matters are not issues in this appeal.
Burke prayed for a declaratory judgment finding that City Ordinance 86-6 violated § 14-58-303 in that that statute did not include cities of the second class and, further, that the health insurance premiums were wrongfully paid. The circuit court, following a bench trial, found in its order that because the ordinance was passed to enable the City to perform essential and indispensable functions incidental to the operation of the municipality and the administration of local affairs, it did not violate Arkansas law. The circuit court also found that the City wrongfully paid insurance premiums for the benefit of Arnold Elmore in the amount of $5,280, but because Elmore was not guilty of fraud or misrepresentation, it would be inequitable to require him to repay the amount when he had rendered services to the City in good faith. Accordingly, the circuit court declined to order Elmore to refund the premiums paid on his behalf to the City.
I. Mayor’s Authority to Purchase and to Contract
Burke first contends on appeal that there is no statutory authority that allows cities of the second class to pass an ordinance authorizing their mayors to make purchases up to $5,000 or to contract for labor and materials up to the same amount. She points out that while this court has held on occasion that cities of the second class are by implication deemed to be included in statutes made specifically applicable to the cities of the first class, this implied authority is not applicable here where the power involved is merely for convenience and is not indispensable. The appellees counter that this authority for the mayor is essential for the efficient operation of the City and that constant consultation with the city council would impede day-to-day purchases and contracts made on the City’s behalf.
The pivotal issue in this case is whether the City had the authority to enact Ordinance 86-6. As already noted, the circuit court found that Ordinance 86-6 was passed to enable the City to perform essential and indispensable functions incidental to the operation of the City. Our standard of review of a circuit court’s finding following a bench trial is whether that finding was clearly erroneous. City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992).
This court has often stated that municipalities are creatures of the legislature and as such have only the power bestowed upon them by statute or by the Arkansas Constitution. Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987). See also City of Ft. Smith v. O.K. Foods, Inc., 293 Ark. 379, 738 S.W.2d 96 (1987); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). Additionally, this court has held that any substantial doubt concerning the existence of a power in a municipal corporation must be resolved against the City. City of Little Rock v. Cash, supra. Recently, this court summarized what powers can be exercised by a municipality:
Cities have no inherent powers and can exercise only (1) those expressly given them by the state through the constitution or by legislative grant, (2) those necessarily implied for the purposes of, or incident to, these express powers and (3) those indispensable (not merely convenient) to their objects and purposes.
Cosgrove v. City of West Memphis, 327 Ark. 324, 326, 938 S.W.2d 827, 828 (1997).
The statute from which the City purports to get its power is § 14-58-303. The relevant portions of that statute read:
(a) In a city of the first class, the mayor or his duly authorized representative shall have exclusive power and responsibility to make purchases of all supplies, apparatus, equipment, materials, and other things requisite for public purposes in and for the city and to make all necessary contracts for work or labor to be done or material or other necessary things to be furnished for the benefit of the city, or in carrying out any work or undertaking of a public nature therein.
(b) (1) The municipal governing body shall provide, by ordinance, the procedure for making all purchases which do not exceed the sum of ten thousand dollars ($10,000).
Ark. Code Ann. § 14-58-303(a) & (b)(l)(Repl. 1998) (emphasis added).
By the clear terms of the statute, it only applies to cities of the first class. Thus, the first category for establishing a municipality’s power under Cosgrove v. City of West Memphis, supra, that is, an express grant of the authority, is inapposite to the instant case. We further conclude that the second and third categories for establishing a city’s authority under Cosgrove have not been met.
The circuit court based its finding that the mayor’s power was either incidental to an express power or indispensable on two cases and cited Conner v. Burnett, 216 Ark. 559, 226 S.W.2d 984 (1950), and Weeks v. Texarkana, 50 Ark. 81, 6 S.W. 504 (1887). Neither of these cases, however, is controlling. In Weeks v. Texarkana, supra, this court held that even though the statute at issue did not expressly authorize the council of an incorporated town to compensate its recorder, because “onerous duties are devolved upon him, requiring time and labor for their performance, such power may be fairly inferred as essential to the purposes of the incorporation. Otherwise the efficiency of the municipal government might be crippled and the best interests of the town suffer, from the impossibility of procuring a competent man, who would give his services gratuitously” Id. at 83, 6 S.W. at 505. We held, in essence, that compensation of a recorder was indispensable to the efficient administration of city government.
In Conner v. Burnett, supra, the plaintiff filed suit, claiming that a city of the second class was not authorized to vary or increase the compensation for a marshal fixed by statute. The statute at issue stated that the marshal of a city of the second class “shall receive like fees as sheriffs and constables in similar cases.” Id. at 560, 226 S.W.2d at 984 (citing Ark. Stat. Ann. § 19-1104). This court held that the General Assembly intended to and did authorize cities of the second class to pay their marshals a salary and cited the statute that gave cities of the first class power to fix salaries for their municipal officers. We noted that though this same power was not expressly given to cities of the second class, this court had held that “the statute does by implication delegate that power to these smaller municipalities.” Id. (citing Weeks v. Texarkana, supra.) Moreover, we note that the increased salary for increased duties was ancillary to the statutory authority setting the marshal’s compensation in the same range as that of sheriffs and constables for like cases.
We turn then to the case at hand. We observe initially that there is a problem in this court’s simply expanding the scope of § 14-58-303 to second-class cities. If the General Assembly had intended to include cities of the second class, it easily could have done so. There are many instances in the code where the General Assembly has made statutes specifically applicable to both cities of the first and second classes. See generally Ark. Code Ann. §§ 14-234-302 (Repl. 1998) (power to create commission to operate water works); 14-262-105 (Repl. 1998) (power to make expenditures for public health); 14-269-201 (Repl. 1998) (power to create recreation commission); 14-301-109 (1987) (power to compel railroad to provide public foot-walk over railroad tracks). Thus, unless Ordinance 86-6 falls within the parameters of the remaining two categories of Cosgrove, the clear language of § 14-58-303 should control.
We find no basis for concluding that the purchasing and contracting power in the City’s mayor under Ordinance 86-6 is authority that is incidental to an express power. The remaining issue then is whether the mayor’s purchasing authority can be deemed to be essential or indispensable as opposed to merely convenient. The trial court relied on the testimony of appellee Vicki Strange, the recorder/treasurer for the city, in determining that it would be inefficient and unnecessary to go through the city council for insignificant matters. Ms. Strange testified at one point: “We have, say for example, a generator or whatever breakdown at the waste water plant and it is going to cost $3300.00, and we have this waste water running all over town. Yeah, we need something like this so we can immediately repair that and not endanger the citizens.”
This was the only testimony regarding the necessity for Ordinance 86-6. There was nothing in the record about how often the city council meets in Huntington or how cumbersome it would be to call city council meetings. Simply because a witness testifies that it is inefficient and unnecessary to go through the city council for purchasing matters does not mean the purchasing and contracting power in the mayor is essential to the operation of the City. Moreover, it is difficult for us to see why the city council should not be summoned into session for emergency situations such as those described by Ms. Strange. It sta to reason that, as a practical matter, the mayor’s purchasing and contracting authority at issue in this case is used more for mundane matters and as a matter of convenience than for purchasing equipment or contracting for labor and materials in times of crisis. Powers assumed by a city merely for convenience do not qualify as indispensable or implied powers. See Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S.W.2d 11 (1940). As such, it does not meet the criteria for an essential or indispensable power.
We reverse the circuit court on this point.
II. Health Insurance Benefits
For her second point, Burke urges that the circuit court erred in finding that because Arnold Elmore acted in good faith, he should not be required to refund the amounts paid on his behalf by the mayor for his health insurance premiums. Burke directs this court’s attention to Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999), where we held that even though the quorum court had acted in good faith in using county funds to pay their own health insurance premiums, those amounts paid had to be refunded to the county because they were not authorized by then existing state law. The appellees respond that the circuit court did not err in its finding on this point, because Elmore had indeed rendered services to the City in good faith. They further point out that like the other City officials who received health insurance benefits as part of their compensation packages pursuant to city council approval, Elmore, as the waste water operator, provided essential and similar services to the City. The City distinguishes the Massongill case by emphasizing that here the mayor authorized Elmore to receive insurance benefits and Elmore was not a part of that decision, whereas in Massongill the quorum court members voted to provide themselves with health insurance benefits.
The circuit court did find in the instant case that the insurance premiums paid on behalf of Arnold Elmore were unauthorized by city ordinance and thus were illegal. However, the circuit court specifically found that Elmore did not need to refund the sums because he “was not guilty of fraud or misrepresentation, but was the beneficiary of what the City thought was a justified payment.” The court added that it would be unjust and inequitable to require repayment when Elmore had rendered services to the City in good faith.
In Massongill v. County of Scott, supra, this court did deal with a similar issue. The quorum court had enacted an ordinance providing for payment of their insurance premiums, and we held that the quorum court members were recipients of benefits that were unlawfully paid, and as such, the members were required to refund the money unlawfully paid. We said:
This case is not about the good faith of the quorum members. We do not question whether they acted in good faith in passing the ordinance at issue or in accepting the benefits received by the county. The simple fact is that monies were paid for insurance premiums to their benefit in accordance with City Ordinances 96-3 and 95-3 which were not authorized by the then existing state law. Our Constitution gives the people the right to seek recovery of such monies. . . . Recovery is permitted from the quorum court members not as a result of their legislative actions but because they were the recipients of benefits found to be unlawfully paid. No action would be against them personally had they received no personal benefit from expenditure of county funds.
Id. at 286, 991 S.W.2d at 108.
The City is right that the facts here are different in that Elmore, unlike the quorum court, had no role in the decision to provide him health insurance benefits as part of his compensation package. However, the fact remains that those benefits were not authorized by ordinance and were therefore improper and illegal. Additionally, in Massongill, this court required repayment of the funds received by the quorum court members, not because they enacted the ordinance granting the benefits, but because they were recipients of benefits found to be unauthorized. We were absolutely clear that good faith does not matter in such an instance. What matters is whether the benefits were unlawfully paid.
We conclude that the insurance premiums paid on behalf of Arnold Elmore were unlawfully paid by the mayor without city council approval. As was the case in Massongill, the premium amounts must be refunded to the City.
We reverse the circuit court and remand the matter for further proceedings as required by this opinion.
At the time the Huntington ordinance was enacted, § 14-58-303 had a $5,000 limitation. The limit was raised to $10,000 by Act 812 of 1995.
At various times, the name of the appellee, Kennith Elmore, appears as Kenneth Elmore in the record.
This situation is different from that in Biedenharn v. Hogue, 338 Ark. 660, 1 S.W.3d 424 (1999), where the compensation received by Hogue was authorized by law and, hence, was not illegal. | [
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ROBERT L. Brown, Justice.
This case involves the discipline ce. attorney, appellant Jimmie L. Wilson, where a majority of justices has been unable to agree on a single ground for reversal on the core issue of the proper sanction. Thus, the decision of the circuit judge is affirmed, and the opinions of this court have no precedential value.
The circuit judge determined that Mr. Wilson should be suspended from the practice of law for five years with credit given for the time he was previously disbarred from practice by this court. Two issues have been raised by Mr. Wilson in his appeal: (1) the circuit judge erred in failing to recuse in this matter; and (2) the five-year suspension ordered by the circuit judge exceeded the permissible sanction under our rules. Appellee James A. Neal as executive director of the Supreme Court Committee on Professional Conduct has cross-appealed on the basis that disbarment is the appropriate sanction. On two of the three issues, a majority of the court agrees. All seven justices agree that the circuit judge’s decision not to recuse was not an abuse of discretion. Justice Brown, Justice Imber, Justice Thornton, Justice Smith, and Special Justice Burnett agree that the circuit judge’s denial of disbarment should be affirmed.
As already stated, a majority of the court does not agree on the appropriate sanction for Mr. Wilson. Justice Thornton, Justice Smith, and Special Justice Burnett conclude that the circuit judge was limited to a one-year suspension under the Procedures then in effect with credit given for the period when Mr. Wilson was precluded from practicing law. Justice Brown and Justice Imber agree with the circuit judge that a five-year suspension is appropriate with credit given for the period when Mr. Wilson was precluded from practicing law. Chief Justice Arnold and Special Justice Shell conclude that disbarment is the appropriate sanction. Because a majority does not agree to reverse or modify the sanction imposed by the circuit judge, his decision is affirmed.
The opinion by Justice Brown affirming the circuit judge on . all three issues is presented first followed by the opinion of Justice Smith in favor of a one-year suspension and the opinion of Chief Justice Arnold in favor of disbarment.
The conduct of Mr. Wilson at issue occurred almost twenty years ago. Disbarment proceedings have been ongoing for ten years. This is the fifth appeal we have had in the case. See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998) (Wilson IV); Wilson v. Neal, 329 Ark. 125, 947 S.W.2d 338 (1997) (Wilson III) (per curiam); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995) (Wilson II) (per curiam); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994) (Wilson I); see also Neal v. Wilson, 112 F.3d 351 (8th Cir. 1997) and Neal v. Wilson, 920 F.Supp. 976 (E.D. Ark. 1996). In Wilson I, we reversed the circuit judge who had found that Mr. Wilson’s disbarment was barred by the statute of limitations, and we remanded for further proceedings. In Wilson II, we granted a writ of certiorari and held that then circuit judge Oily Neal lacked the authority to sanction Mr. Wilson because a special circuit judge had been assigned to hear the case. In Wilson III, we denied Mr. Wilson’s mandamus petition to include the federal record as part of his disbarment appeal. In Wilson IV, we reversed the disbarment order of the circuit judge and remanded the matter to that judge for him to consider the aggravating and mitigating standards of the American Bar Association in deciding the appropriate sanction.
The genesis of this matter was a disbarment complaint filed by the Arkansas Committee on Professional Conduct (“Committee”) on October 9, 1991, after Mr. Wilson pled guilty to five misdemeanor offenses in federal district court as a result of a plea bargain with the United States Attorney. The criminal conduct involved had occurred ten years earlier in 1981 and 1982. The guilty pleas took place on August 22, 1990. Mr. Wilson pled guilty to three counts of violating 18 U.S.C. § 658 by “knowingly” disposing of soybeans and rice that were mortgaged and pledged to the FmHA, and two counts of violating 18 U.S.C. § 641 by “knowingly” taking money from a Department of Agriculture bank account and using it for unapproved purposes. In 1985, the United States District Court suspended his license to practice law in the federal courts pending final resolution of any disciplinary action against him by the Committee and by this court. As a result of his guilty pleas, he served four and one-half months in federal prison.
This court affirmed the fact that Mr. Wilson violated Rule 8.4(b) of the Model Rules of Professional Conduct in Wilson IV. There, we held:
Although all five crimes were misdemeanors, we agree with the trial court that these convictions involved dishonesty and a breach of trust, and seriously undermined “the confidence of the public in our legal profession.” See In Re Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). Because we have no hesitation in holding that Wilson’s convictions reflected adversely on Wilson’s fitness to practice law, we affirm the trial court’s finding that Wilson violated Model Rule 8.4(b).
332 Ark. at 161, 964 S.W.2d at 205-206. However, with regard to the appropriate sanction we concluded that the circuit judge had erred in finding that a violation of Model Rule 8.4(b) automatically required disbarment. We directed the circuit judge to evaluate and weigh certain aggravating and mitigating standards adopted by the American Bar Association in deciding the proper sanction. On remand, the circuit judge ordered that Mr. Wilson be suspended from the practice of law for five years, but he made no findings on specific aggravators and mitigators. This five-year suspension is the sanction before us in this appeal, as is the Committee’s cross-appeal for disbarment.
I. Recusal
The pleadings filed subsequent to remand included a motion by Mr. Wilson to the circuit judge requesting that the judge recuse because of bias. He asserts that in the proceedings prior to the last appeal, the circuit judge showed that he had no intention of adjudicating sanctions, and that he was committed to disbarment. Mr. Wilson asserts that the judge’s promise of a sanction hearing in the proceedings prior to his last appeal, and his failure to provide one in the prior proceedings, showed a predisposition to refuse to adjudicate sanctions, and that the judge’s additional conclusion ia his decision in the prior proceedings that the undisputed facts dictated disbarment, showed that the judge intended to disbar Mr. Wilson regardless of law or fact.
Mr. Wilson also argues that comments by the circuit judge in his decision on the motion to recuse, and in his discussion on the motion for reconsideration, further show that the judge’s prejudice remained unchanged and that a severe sanction was certain. He asserts that the order denying the recusal motion exhibits overt bias when the judge stated he took “umbrage” at the suggestion Mr. Wilson had been deprived of earning a living for two years. Mr. Wilson also cites as error a discussion between the judge and counsel on the day of the sanction hearing, when the motion for reconsideration was discussed. In response, the judge stated the word “umbrage” was intended to convey his disappointment at the allegation that Mr. Wilson had been deprived of making a living by the judge rather than as a personal insult.
There is a presumption of impartiality on the part of judges. Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998). Moreover, the decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1999). The question of bias is usually confined to the conscience of the judge. Black v. Van Steenwyk, supra; Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). An abuse of discretion can be shown by proving bias or prejudice. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999); Trimble v. State, supra. To decide whether there was an abuse of discretion, we review the record to see if any prejudice or bias was exhibited. Black v. Van Steenwyk, supra; Dolphin v. Wilson, supra. There is a duty not to recuse where no prejudice exists. Massongill v. County of Scott, supra; U.S. Term Limits, Inc. v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994); Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). The party seeking disqualification bears the burden of proving bias or prejudice. Trimble v. State, supra; Dolphin v. Wilson, supra; Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996).
In the instant case, following remand the circuit judge appeared to hear the evidence presented in an impartial manner, giving each side full opportunity to address the issues. The judge acknowledged that Mr. Wilson was an officer of the court and spoke positively of his achievements. While the judge’s use of the word “umbrage” in its written order denying recusal may not have been the best choice of words, it in no wise was prejudicial or exhibited bias. Moreover, Mr. Wilson cites no example of bias at the hearing, and thus he demonstrates no prejudice. In the absence of a showing of prejudice, we hold that the circuit judge did not abuse his discretion in declining to recuse.
II. The Sanction
As already noted, Mr. Wilson violated Rule 8.4(b), which is the commission of a “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” His conduct constitutes serious misconduct which warrants either terminating or restricting his law license for a period of time under Section 7 of the Procedures Regulating Professional Conduct (“Procedures”). Under the American Bar Association Standards for Imposing Lawyer Sanctions, the distinction in the propriety of assessing disbarment versus suspension is drawn as follows:
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
Compendium of Professional Responsibility Rules and Standards §§ 5.11, 5.12 (1999 Ed.).
It would seem at first blush that Mr. Wilson’s criminal conduct militates more in favor of disbarment than suspension. But as already noted, in Wilson IV this court made it clear that automatic disbarment was not appropriate and that aggravating and mitigating circumstances must be looked to in deciding the proper sanction. Those circumstances are:
Aggravating Factors:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with [the] rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge [the] wrongful nature of [the] conduct;
(h) vulnerability of [the] victim;
(i) substantial experience in the practice of law;
0 indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances.
Mitigating Factors:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify [the] consequences of [the] misconduct;
(e) full and free disclosure to [the] disciplinary board or cooperative attitude towards [the] proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when;
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
(j) delay in [the] disciplinary proceedings;
(k) impositions of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.
Model Standards for Imposing Lawyer Sanctions §§ 9.22 and 9.32 (1992).
Of the mitigating factors, the following appear relevant to this case:
•absence of a prior disciplinary record;
•reputation;
•delay in [the] disciplinary proceedings;
•imposition of other penalties or sanctions.
Mr. Wilson had ample letters of recommendation from community leaders. He has also engaged in public service since his misdemeanor convictions both in terms of public interest litigation and service in the Arkansas General Assembly. But two circumstances appear particularly pertinent ■ — ■ delay in the disciplinary proceedings and imposition of other penalties and sanctions.
The conduct of Mr. Wilson at issue in this appeal occurred almost twenty years ago. Ten years ago, he admitted his guilt to five misdemeanors based on a plea agreement and served time in prison. He stated in his testimony before the circuit judge in the instant case that he lost his farm as part of the punishment. Since 1985, with the exception of a few months, he has been suspended from practicing law in the federal courts. He was disbarred from practice in the state courts following the decision of the circuit judge prior to the appeal in Wilson IV for more than two years. These formal disciplinary proceedings have been going on now for ten years. There is no doubt that Wilson has already experienced significant penalties and sanctions for his conduct.
We note in addition that certain aggravating factors are absent in this case. Mr. Wilson’s' misdemeanor pleas were for conduct perpetrated against the federal government and not for conduct against a vulnerable and susceptible client. While this does not excuse Mr. Wilson’s conduct, it eliminates an aggravator that might have otherwise been present. Nor do we glean from the record that Mr. Wilson engaged in a bad-faith obstruction of the disciplinary proceedings or that he engaged in deceptive practices before the Committee.
Taking all of these circumstances under consideration, the circuit judge was correct that disbarment was not an appropriate sanction. However, any decision along these fines must be measured against the yardstick of Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999), because in that case we found disbarment to be the appropriate sanction after considering for the first time the American Bar Association standards for mitigators and aggravators. In the Hollingsworth case, the embezzlement of money from a client was involved. There are many aspects in this case that distinguish it from Hollingsworth. In Hollingsworth, the circuit judge found (and we agreed) that Hollingsworth had knowingly diverted funds for his own use from an estate whose primary beneficiary was a vulnerable widow (an aggravating circumstance) and then had tried to cover up the diversion of funds by not answering his client’s questions or giving her the requested accountings. This conduct occurred more recently than Mr. Wilson’s and for a significant period of time — more than five years — from 1989 to 1994. The result of this conduct was a finding by the circuit judge that Hollingsworth had committed eight rule violations:
Rule 1.1 — competence
Rule 1.3 — diligence
Rule 1.4(a) — communication
Rule 1.5(a) (b) — fees
Rule 1.15(a)(b)(c) — safekeeping property
Rule 3.2 — expediting litigation
Rule 4.1 — truthfulness in statements to other
Rule 8.4(c) (d) — misconduct
In the case before us, there was also a pattern of misconduct but for a shorter period of time, and it involved a victim (the government) that was not a vulnerable client. In addition, Mr. Hollingsworth termed his misconduct a “technicality” while Mr. Wilson pled guilty to his wrongdoing. There is also the point that Mr. Wilson’s public interest litigation and public service in the General Assembly occurred after his misconduct. Mr. Hollingsworth’s misconduct occurred after much of his public service and after he had been a licensed attorney for more than nineteen years.
The fact that Mr. Hollingsworth was never charged with embezzlement and Mr. Wilson was charged with a crime is not a critical distinction. The findings of the circuit judge in Hollingsworth equate to a finding of embezzlement and a coverup, though Hollingsworth was never charged, perhaps due to the reluctance of the widow to bring charges. In short, the circumstances surrounding Mr. Hollingsworth’s conduct, which amounted to stealing from an estate for more than five years, where his client, the widow, was the executrix and primary beneficiary, appear more dire and pronounced than Mr. Wilson’s wrongdoing against the government for a shorter period of time.
The remaining issue is whether Mr. Wilson should be suspended for a period of years or disbarred for a period of years. This court does have precedent for meting out a disbarment sanction for a fixed term of years. See Weems v. Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975) (disbarment assessed by circuit judge reduced by this court to a term of three years). Though Mr. Wilson equates a five-year suspension to disbarment in his brief on appeal, the distinction between suspension and disbarment is obviously a critical one. Following a suspension for a term of years, an attorney may apply for reinstatement under Section 7K of our Procedures, which entails little more than showing the Committee that his license fees are current and that he did not practice law during the period of suspension. Following disbarment, however, an application for readmission to the bar made to the Board of Law Examiners as well as approval by this court are required, and that is much more onerous. See Procedures § 7L. This is comparable in effect to an initial application to practice law and entails a character and fitness evaluation by the Board of Law Examiners and even, in some cases, taking the bar exam again.
Additionally, when a disbarment is based on dishonesty, readmission is an impossibility. Section 7L(2)(c) of the Procedures provides that readmission shall not be allowed if:
(c) Any of the grounds found to be the basis of a disbarment or any grounds presented in a voluntary surrender of law license are of the character and nature of conduct that reflects adversely on the individual’s honesty or trustworthiness, whether or not the conviction of any criminal offense occurred.
As already noted, this court affirmed the fact that Mr. Wilson’s conduct involved dishonesty and reflected adversely on his fitness to practice law in Wilson IV. Thus, our procedures slam the door on any potential readmission by Mr. Wilson, even if his disbarment is only for a term of years.
Finally, it is necessary to address two other opinions in this case. Justice Smith agrees that disbarment is not an appropriate sanction. Fie maintains, however, that our Procedures should be construed so as to limit the circuit judge and this court to a one-year suspension. That is not a correct reading of our Procedures. Under the Procedures in force in 1990, they provided that the Committee was authorized to suspend an attorney from the practice of law for one year. But, a separate section of the Procedures sets forth the authority of the circuit judge as opposed to the Committee, once a disbarment action has been filed in that court. If a finding is made that one or more of the Model Rules of Professional Conduct have been violated, the circuit judge in a disbarment action “shall caution, reprimand, suspend, or disbar such attorney as the evidence shall warrant.” 1990 Procedures, § 5G.(2). Thus, the whole panoply of sanctions is available to a circuit judge and, concomitantly, to this court. And there is no basis for concluding that because the Committee can suspend a lawyer from the practice for up to one year, circuit judges are similarly limited when meting out sanctions in a disbarment action. Our rules are so clear on this point that there is no valid basis for invoking the canons of statutory construction, as Justice Smith has done. To do so takes a limitation on the Committee’s power and impresses it on the circuit judges in disbarment proceedings, which was never contemplated by our Procedures. In sum, the circuit judge in this case had the authority to suspend Mr. Wilson from the law practice for five years.
Nor do I see that Mr. Wilson’s due process rights were jeopardized by imposition of a sanction (five-year suspension) of which he contends he had no notice. Again, our Procedures clearly give circuit judges full authority to suspend as the evidence warrants in disbarment matters. This court has found a violation of an attorney’s due process rights when that attorney was not notified of a specific rule violation for which he or she might have been sanctioned. See, e.g., Colvin v. Committee on Professional Conduct, 305 Ark. 239, 806 S.W.2d 385 (1991). Here, though, Mr. Wilson was fully apprised of the fact that his sanction might be disbarment. Under these facts it makes little sense to contend that the assessment of a lesser sanction which is authorized by our Procedures violated his right to due process.
Finally, there is the dissenting opinion of the chief justice which favors total disbarment. The dissent falls into the same trap as the circuit judge in Wilson IV and fails to consider the ABA standards for aggravating and mitigating circumstances. In particular, the dissent discounts the aggravating circumstances of a vulnerable client and a coverup, which were present in Hollingsworth but not in the instant case. There is, too, the point that Mr. Hollingsworth was found to have violated eight of our Model Rules for more than five years. Mr. Wilson was found to have violated one. Of course, it is vastly easier to look at Mr. Wilson’s conduct and say that dishonesty was involved twenty years ago and, thus, permanent disbarment is warranted, without examining the mitigating and aggravating factors in this case. That, however, is contrary to what we held in Wilson IV, where we stated that the circuit judge, and by necessity this court as well, must look to all the circumstances of each case.
Glaze and Corbin, JJ., not participating.
Arnold, C.J., Thornton and Smith, JJ., and Special Justices James E. Burnett and Jay F. Shell concur in part and dissent in part.
According to Wilson I, the amount borrowed by Mr. Wilson from the FmHA in 1981 and 1982 was approximately $775,230. A federal grand jury indicted him based on his disposition of the proceeds from multiple crop sales and the transfer of funds from a joint bank account with the FmHA to his law firm account, all in an effort to avoid the FmHA lien. In 1985, he was tried on various felony counts and found guilty of one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, forty counts of knowingly disposing of property mortgaged to a government agency in violation of 18 U.S.C. § 658, and seven counts of unlawfully converting government property in violation of 18 U.S.C. § 641. His judgment of conviction was reversed by the Eighth Circuit Court of Appeals due to a Batson violation at his jury trial. United States v. Wilson, 815 F.2d 52 (8th Cir. 1987). On remand to the federal district court, Mr. Wilson pled guilty to the five misdemeanors noted in this opinion.
Section 7E(2) of the Procedures now in force, which were adopted by this court in 1998, authorizes the Committee to suspend a lawyer’s license “not in excess of two (2) years.” | [
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LAVENSKI R. SMITH, Justice.
Appellant Joseph Hashagen (“Joseph”) appeals e. alimony modification order of the Pulaski County Chancery Court. Appellee Tracy Hashagen Lord petitioned to have alimony resumed after appellant obtained a bankruptcy discharge of his allocated portion of marital indebtedness. This resulted in the creditors pursuing Appellee Tracy Hashagen Lord for payment of those discharged debts. The trial court granted the petition, and reinstated alimony, finding that the bankruptcy discharge constituted changed circumstances warranting modification. Appellant contends that the trial court lacked jurisdiction to make the modification because the order was issued more than sixty days after the filing of the decree contrary to Ark. R. Civ. P. 60(b), and because appellee’s entitlement to alimony ended with her remarriage. We affirm the trial court.
Facts
The Hashagens were married on June 16, 1987. In 1988, their son Zachery was born. On March 30, 1998, the Hashagens separated, and on May 1, 1998, Tracy Hashagen filed a complaint for divorce. Joseph Hashagen filed an answer and counterclaim for divorce. Agreement was reached on a number of items, including custody and visitation. On August 7, 1998, a final hearing was held in chancery, wherein Tracy was awarded alimony of $200.00 per month for thirty-six months, terminable upon remarriage. Tracy remarried twenty-two days later on August 29, 1998, terminating her right to alimony under the terms of the decree.
In the same decree, a division of debts was made, whereby Joseph assumed the obligation to repay a specified two-thirds of the debt, and Tracy the remaining debt. However, rather than pay the debts as ordered, Joseph filed Chapter 7 bankruptcy in the summer of 1998. Not surprisingly, after his debts were discharged, the creditors came to Tracy and demanded she pay the debts Joseph had discharged. Tracy was unable to secure any loans to meet the debt, and therefore made arrangements with a credit management company whereby she would pay off the debts over a sixty-three-month period.
On January 27, 1999, Tracy filed a Motion for Modification of Alimony and Child Support, asserting that Joseph had failed to pay his portion of the debts as ordered, and alleging that her struggles to pay Joseph’s debts constituted changed circumstances and resulted in financial problems and difficulty in supporting herself and their son. A number of pleadings followed, .clarifying that Tracy had remarried.
On August 8, 1999, a hearing was held to consider the motion. The court found the bankruptcy discharge constituted a change in circumstances, and considered the debt as then being paid through the credit management company. Tracy was paying $292.00 per month. The court ordered Joseph to pay alimony of $195.00 per month for sixty-three months, the period required to pay off his discharged debts.
Joseph appeals, alleging that the trial court had lost jurisdiction to modify the alimony decree because more than ninety days had passed since the decree was entered, and because the right to alimony terminates upon remarriage under the statutes.
Jurisdiction
We certified this case from the court of appeals based upon Arkansas Supreme Court Rule l-2(b) as a case involving statutory interpretation, an issue of first impression, or matter of public interest and a significant issue needing clarification or development of the law. The issues it presents are indeed issues worthy of this court’s attention. However, we are unable to reach the merits of the case as the appellant’s abstract is wholly inadequate to permit this court’s review. Rule 4-2 (a) (6) of the Arkansas Supreme Court Rules requires that an abstract contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” The appellant’s abstract is comprised of very limited testimony from the hearing on August 7, 1998, and the hearing on August 8, 1999. It reduces a 189-page transcript to just under three pages. Nor does the appellant abstract the original decree. The appellant also failed to abstract the motion for modification of alimony and support which gave rise to the order that is the subject of this appeal.
As we recently stated in Luttrell v. City Of Conway, 339 Ark. 408, 409, 5 S.W.3d 464 (1999):
Our review of a case on appeal is limited to the record as abstracted in the briefs. Morse v. Sentry Life Ins. Co., 332 Ark. 605, 967 S.W.2d 557 (1998). Rule 4-2(a)(6) of the Arkansas Supreme Court Rules requires that an abstract contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” Failure to abstract a critical document precludes us from considering any issues concerning it. Id.; National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997). Similarly, when those exhibits necessary for a clear understanding of the issues are not included in the abstract, we will summarily affirm the decision of the trial court. Id. This court has stated on occasions too numerous to count that it is impractical to require all seven justices to examine one transcript in order to decide an issue. Id.; Finnegan v. Johnson, 326 Ark. 586, 932 S.W.2d 344 (1996).
Applying Rule 4-2(a)(6) to the instant appeal, we summarily affirm.
Affirmed. | [
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PER CURIAM.
James Charles Fudge was found guilty by a jury M. capital murder and sentenced to death. The judgment is on appeal to this court. Both counsel for appellant Fudge and the appellee have filed briefs, and the matter is ready for submission. Fudge now seeks leave to participate as “co-counsel” on appeal. He has tendered a supplemental brief that he desires to file if the motion is granted.
Appellant Fudge relies on Faretta v. California, 422 U.S. 806 (1975), for the proposition that he is entitled under the Sixth Amendment to the United States Constitution to participate in his representation on appeal. The United States Supreme Court, however, has specifically said that Faretta was confined to the right of the defendant to conduct his own defense at trial and that there is no constitutional right to self-representation on direct appeal. Martinez v. Court of Appeal of California, 120 S.Ct. 684 (2000). The Court in Martinez held that the Sixth Amendment identified the basic rights that the accused shall enjoy, but that those rights are strictly limited to those rights available in preparation for trial and at the trial itself.
While the Court in Martinez left to the State appellate courts the discretion to allow a lay person to proceed pro se on appeal, it also recognized that representation by trained appellate counsel is of distinct benefit to the appellant as well as the court. We conclude that appellant, who is represented by counsel qualified to represent defendants in capital cases, has not demonstrated that there is any good cause to permit him to serve as co-counsel or to file a supplemental pro se brief.
Motion denied. | [
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RAY THORNTON, Justice.
Appellant Joe Rudd, personally stice. the estate of Earl Jameson Routt, deceased, and his family appeal an order of the Pulaski County Circuit Court granting summary judgment in favor of the appellees, the Pulaski County Special School District and its employees. Appellants instituted litigation against appellees, asserting theories of liability under the Arkansas Civil Rights Act and negligence. The trial court granted summary judgment, ruling that the Arkansas Civil Bights Act does not extend to the undisputed facts of this case, and that the school district was immune from suit to recover damages resulting from negligence. We affirm the trial court’s grant of summary judgment.
This case involves a shooting on a school bus in Jacksonville. At the time of the shooting in October 1996, the victim, Earl Routt, was a student at Jacksonville High School and regularly rode a school bus owned and operated by appellee, Pulaski County Special School District. Appellee Margie Davis typically drove the school bus on which Routt was a passenger.
WJ., another student at Jacksonville High School, also rode Davis’s school bus. WJ. and the victim frequendy had confrontations, and the driver had admonished both boys on previous occasions. During the previous year, while WJ. was enrolled as a student at Sylvan Hills Junior High School, his disciplinary record showed several offenses which included the following: expulsion from school for bringing a knife to school and assaulting another student with that knife on a school bus, an action which Sylvan Hills Junior High School Principal Sue Clark noted as a “substantial risk;” fighting in class; disorderly conduct; roughhousing in class; being a member of a gang that had violent initiation rites; and persistent disregard for school rules and authority. Ms. Clark testified in her deposition that the disciplinary records “do not follow a student from one school to another. . . . [T]he disciplinary records are closed, terminated, resolved, and we just follow the records retention policy for those.” These incidents occurred approximately seven months prior to the October shooting at Jacksonville High School. According to appellants, the records were kept in the ordinary course of business by officials of the school district which operates many schools, including those of Sylvan Hills and Jacksonville.
On October 9, 1996, WJ. brought a hand gun to Jacksonville High School and kept it in his locker. The school district had a policy which prohibited weapons on school property. On the day of the shooting, another student advised one or more of his teachers that he overheard a conversation concerning WJ., a gun, and something that was going to happen after school. According to the other student, two searches occurred on that day, but neither search turned up a weapon. That afternoon, while riding on the school bus, WJ. pulled out the hidden hand gun and fired it numerous times at the victim, who died as a result of the shooting.
Appellants brought the present action against appellees in Pulaski County Circuit Court, seeking compensation for the deprivation of Routt’s civil liberties. First, appellants claim that appellees violated the victim’s civil rights under the Arkansas Civil Rights Act by failing to adequately protect him while he was in their custody. Second, appellants alleged that appellees’ negligence was the sole and proximate cause of the violation of the victim’s civil rights leading to his death. Appellees responded that they were entitled to absolute immunity from tort liability in the performance of their official duties pursuant to Ark. Code Ann. § 21-9-301 (Repl. 1996).
After examining the pleadings, motions, briefs in support of the motions, and answers to interrogatories, the trial court granted defendant’s motion for summary judgment. We have stated that the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as matter of law. Ark. R. Civ. P. 56; McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997).
I. Arkansas Civil Rights Act
Appellants argue that the school district had a special custodial relationship with the victim under the Arkansas Civil Rights Act, and that such relationship imposed a duty to protect the victim from a violation of his civil rights. Arkansas Code Annotated § 16-123-105 (Supp. 1999) defines civil rights offenses. The statute provides in pertinent part:
(a) Every person who, under color of any statute, ordinance, regulation, custom, or usage of this state or any of its political subdivisions subjects, or causes to be subjected, any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Arkansas Constitution shah be liable to the party injured in an action at law, a suit in equity, or other proper proceeding for redress.
Id. Arkansas Code' Annotated § 16-123-105 further provides that, when construing the above section, we may look for guidance to state and federal decisions that interpret the Federal Civil Rights Act of 1971, as amended and codified in 42 U.S.C. § 1983 (1994)(hereinafter “§ 1983”).
In the present case, both the perpetrator, WJ., and the victim were students attending the same high school and riding the same school bus. We first inquire into the relationship of the perpetrator, WJ., to the school district, to determine whether he was a state actor. Is there a custodial relationship between the school and WJ. requiring the school to restrict WJ.’s capability to do harm to others? If so, does the school district’s failure to maintain restraints on WJ. transform him into a state actor for the purpose of triggering the provisions of the Arkansas Civil Rights Act?
We have addressed similar questions as issues of first impression in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998). In Shepherd, we traced recent federal cases in which the courts have held that a custodial relationship exists between the government and convicted felons in custody. See Martinez v. California, 444 U.S. 277 (1980) (holding that a plaintiff must satisfy three requirements in order to sustain a claim under § 1983 of the Federal Civil Rights Act); Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (holding that when the State puts an individual in a position of danger from the acts of a third party, the State may be liable under § 1983); Estate of Gilmore v. Buckley, 787 F.2d 714 (1st Cir. 1986) (holding that the State could be held Hable under § 1983 for the deprivation of an individual’s civil rights by a third party where the State has assumed a “special custodial or other relationship” with respect to the individual, or where the State has affirmatively placed an individual in a position of danger from third parties); Nishiyama v. Dickson County, Tenn., 814 F.2d 277 (6th Cir. 1987) (holding that where the state actors had, by established practice, facilitated the deprivation of individual’s constitutional rights by providing the third party with specific means and opportunity to commit the crime against the individual, liability would result under § 1983); Wells v. Walker, 852 F.2d 368 (8th Cir. 1988) (holding that when the state actors used an individual’s place of business for the purpose of releasing paroled prisoners, liability attaches under § 1983, as the state actors were said to have affirmatively placed the individual in an unique confrontational encounter with potentially dangerous persons).
In Shepherd, supra, the victim’s surviving spouse, individually and on behalf of the victim’s estate, filed an action against the county and sheriff for her own injuries and for the victim’s death, caused by an inmate who escaped from custody while receiving medical treatment at a clinic. The trial court ruled that the county and sheriff did not have a duty to protect the appellants. On appeal, we concluded that appellant had pleaded facts sufficient to support a determination that appellees had a duty to protect her and her husband from violence that befell them as the result of the actions of the prisoner who had escaped from custody. The facts in Shepherd demonstrated that appellees were aware that the inmate had violent tendencies, had previously attempted to escape from their custody, had inflicted injury upon himself and others, had a history of mental disorders for which he was receiving medication, and had expressed a desire to commit suicide by shooting himself the very day before the tragic accident involving the appellants. Accordingly, we reversed the trial court’s dismissal of the civil-rights claim and remanded the issue. Id.
The foregoing cases are distinguishable from the present litigation because in those cases, a custodial relationship existed between the State and a convicted felon. In Shepherd, the custodial relationship between the inmate and the State imposed a duty upon the State to protect third persons from injury inflicted by the inmate who escaped from custody. A prisoner is subject to restraints in order to protect the public, and the failure to maintain such restraints may result in liability for injuries to third persons under the Arkansas Civil Rights Act. Id.
Here, the relationship of a student to a school bus driver is not the same as that of a prisoner and his warden. It does not appear that the school district or the driver of the bus had police authority to deprive WJ. of his liberty interest by placing physical restraints upon his actions. While schools should foster a sense of safety for students in order to provide an environment in which students can learn, school officials should not be placed in a position where enforcing physical restraints takes precedence over their primary purpose of teaching and carrying out administrative duties. In the circumstances of this case, we conclude that WJ. was not a state actor, and that the school district’s failure to impose and maintain restraints upon him did not trigger the provisions of the Arkansas Civil Rights Act.
We next address the question whether, under the Arkansas Civil Rights Act, the school had a special relationship with the victim, thereby imposing a duty upon the school to protect him from violent acts by another student. When construing the Arkansas Civil Rights Act, according to Ark. Code Ann. § 16-123-105(c), we may look for guidance to federal decisions. In Dorothy v. Little Rock School District, 794 F. Supp. 1405 (E.D. Ark. 1992), the mother of a student in a high school community-based instruction program brought a § 1983 action against the Little Rock School District, Department of Human Services, and Centers for Youth and Families after her son was allegedly sexually molested and raped by a fellow student, a ward of the State, while attending a special school program.
Her son attended the school program when he was assaulted by Louis C., another student in the program. At the time, Louis C. was a ward of the Arkansas Department of Human Services (hereinafter “DHS”) and had been placed in a foster care program with the Centers for Youth and Families (hereinafter “Centers”). DHS and Centers were aware of Louis C.’s disposition for violence and sexually assaultive behavior, but decided to enroll Louis C. in the program without taking adequate precautions to see that other students, were protected from him. The school district also knew of Louis C.’s propensity for such behavior, but allowed the two boys to be left alone unsupervised, and the assault took place during that time. Brian B.’s mother filed an action against DHS, Centers, and the school district, alleging that defendants’ affirmative duty to protect arose from the special custodial relationship created by compulsory school attendance laws, and her son’s harm was caused by customs, practices, or policies of the governmental entities. Id.
The Dorothy court held that no custodial relationship existed between the victim and the state that was sufficient to impose on the state an affirmative duty to protect. Id. The district court rejected the existence of a custodial relationship based on the following analysis:
The Court, however, must reject the broad view of “custody” based on state compulsory attendance laws taken in the foregoing cases, and argued here by the plaintiff. That view would expand constitutional duties of care and protection to millions of schoolchildren. School officials would be subject to § 1983 liability anytime a child skinned his knee on the playground or was beat-up by the school bully, so long as the requisite “state of mind” was shown. More seriously, with the epidemic of deadly violence on many school campuses today, teachers would be constitutionally obliged to assume roles similar to policemen or even prison guards in protecting students from students. The precise contours of an affirmative duty to care and protect would be much more difficult to define in public schools.
Id. (emphasis added).
The Dorothy court pointed out that the United States Supreme Court has not extended the duty of protection beyond the cases of incarcerated prisoners and involuntarily committed mental patients. The district court reasoned that such a duty of protection should not extend to school officials because “teachers would be constitutionally obliged to assume roles similar to policemen or even prison guards in protecting students from other students.” Id. The district court concluded that no special relationship giving rise to a duty to protect against harm from private individuals existed by the State’s action of putting the two students in contact with one another, despite the State’s knowledge of Louis C.’s violent propensities. Id.
In the present case, it is contended that because of WJ.’s violent history at Sylvan Hills Junior High School, the Jacksonville High School officials should not have allowed the victim to be placed in a dangerous position. Although the school district had knowledge of WJ.’s propensities during his prior academic year at Sylvan Hills Junior High School, appellants presented no evidence of similar behavior while WJ. was enrolled at Jacksonville High School. We conclude that no special relationship was shown to exist between the victim and the state imposing a duty upon the state under the provisions of the Arkansas Civil Rights Act to protect the victim from harm.
II. Negligence
Appellants also presented a theory of negligence. The issue of negligence was raised in appellants’ jurisdictional statement, but the issue of recovery on the basis of negligence giving rise to liability for a tort was not raised in either of appellant’s points on appeal or in the argument section of their brief. Appellants do not appear to contest the grant of summary judgment with respect to the allegation of negligence.
Had appellants pursued the theory of recovery of damages for tort liability under a claim of negligence, they would not have prevailed because of appellees’ sovereign immunity. Under Ark. Code Ann. § 21-9-301, “[i]t is declared to be the public policy of the State of Arkansas that all. . . school districts. . . shall be immune from [tort] liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.” Id.
Accordingly, we affirm the trial court’s grant of summary judgment.
Affirmed. | [
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PER CURIAM.
Petitioner, Don William Davis, by his attorney, Joel M. Huggins, 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 per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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PER CURIAM.
Kevin Douglas Case, by his attorney, Joe Kelly Hardin, has filed a motion for rule on the clerk. The motion admits that the record was not timely filed.
This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead implies fault on the part of some unnamed third party. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.
The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
The present motion for rule on the clerk is denied. | [
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Jim Hannah, Chief Justice.
Appellant Pest Management, Inc., d/b/a Accurase, appeals the denial of a motion to arbitrate the claims of Alfred Langer and James Stalnaker (collectively referred to as Langer). The Faulkner County Circuit Court found that claims arising from an inspection and inspection graph originated prior to execution of a “Standard Contract For Treatment of Wood-Destroying Insects” were not subject to the arbitration provision contained in the termite contract. The circuit court further found that any claims arising from the termite contract between the parties called for arbitration under the Arkansas Arbitration Act. The circuit court then found that any causes of action in this case sounded in tort and were thus exempted from arbitration under the terms of the Arkansas Arbitration Act. We reverse the circuit court and hold that the Federal Arbitration Act (FAA) applies to the claims raised by Langer in this case.
This case was previously considered and decided in the Arkansas Court of Appeals. See Pest Mgmt., Inc. v. Langer, 96 Ark. App. 220, 240 S.W.3d 149 (2006). We granted a petition for review in this case. Thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. 2-4. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003).
Facts
On September 12, 2003, Pest Management inspected a home being purchased by Langer. Pest Management created an inspection graph on this date. In handwritten letters across the top of the graph appears the word, “TREATMENT.” On September 15, 2003, Pest Management issued a letter of clearance on the home. The letter indicated no past or present wood-destroying insect damage. It further provided that the annual termite protection contract on the structure could be renewed for the sum of $115 due on September 12, 2004. On September 17, 2003, the house was purchased by Langer. On that same date Langer signed a “Standard Contract For Treatment of Wood-Destroying Insects” with Pest Management. The contract stated that from the initial date of treatment, the contract would provide protection for one year for the sum of $600, and as in the certification letter, indicated that further annual protection would be provided at the rate of $115 per year.
The inspection graph indicates that some fungus and standing water was found. The certification letter stated that a careful inspection was undertaken and that either infestation was not found or that any prior infestation found had been properly repaired. Langer asserts that he purchased the home, and the lender extended the loan in reliance on Pest Management’s certification.
Langer alleges in their complaint that beginning in September 2003, they requested that Pest Management perform under its contract. They further allege that Pest Management was slow to respond, and when it did, it asserted that the house could not be treated due to insufficient crawl space, and further stated that it was Langer’s responsibility to excavate beneath the house to create sufficient crawl space. Langer contacted the Arkansas State Plant Board, which oversees pest control companies such as Pest Management. The Plant Board sent out an inspector who likewise found that a full inspection was not possible due to insufficient crawl space; however, he did find that there were various conditions that needed to be remedied and that there was rot in floor joists. A “Report of Sub-Standard Termite Treatment” was issued to Pest Management by the State Plant Board stating that Pest Management must bring the treatment up to standards with respect to problems noted on the report. In June 2004, Pest Management began work and removed a section of the floor to allow access to excavate and create a sufficient crawl space. Langer asserts that while they were initially told by Pest Management that the floor would be replaced within three days, the work revealed to Pest Management that the damage to the floor joists and framing was extensive and might involve most of the house. Langer asserts that Pest Management refused to carry out any further repairs and that they were damaged by not only the damage that should have been discovered, but suffered significant other damages likely exceeding the value of the house.
Standard of Review
An order denying a motion to compel arbitration is immediately appealable. Ark. R. App. P. — Civ. 2(a)(12); Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 205 S.W.3d 127 (2005). We review a circuit court’s order denying a motion to compel de novo on the record. Nat’l Cash, supra.
Terms of the Contract
The only point on appeal is whether the circuit court erred in denying the motion to compel arbitration under the Federal Arbitration Act. We must first consider Langer’s argument that no form of arbitration applies. They argue that the inspection on September 12, 2003, including the resulting inspection graph and later letter of clearance, are not part of or controlled by the provisions of the “Standard Contract For Treatment of Wood-Destroying Insects.” This contract contains the arbitration provision Pest Management wishes to enforce. The circuit court agreed with Langer and found that the contract did not “control disputes relating to the performance of the Plaintiffs’ house inspection or the reporting of its condition on the Inspection Graph or Clearance Letter, occurring prior to the execution of the termite contract.” Langer argues that Pest Management is separately liable in tort on these issues. Langer further argues that there was no contract of any form between them and Pest Management when Pest Management inspected and issued the certification letter. However, while Langer argues there was no contract, they indicate in their brief that they requested Pest Management to undertake the inspection. Obviously, there was a contract of some form between Langer and Pest Management. The question is whether there was only the one contract containing the arbitration agreement or a prior contract concerning only inspection and issuance of the graph and clearance letter, which did not include an arbitration agreement.
We note first that pest control services are regulated by the State through the State Plant Board. Ark. Code Ann. §§ 17-37-101 to -221 (Repl. 2001). Pursuant to Ark. Code Ann. § 17-37-105(a)(2)(A) (Repl. 2001), the State Plant Board is empowered to adopt rules and regulations having the full force and effect of law in carrying into effect the provisions of the Arkansas Code on pest control services. State Plant Board regulations cover the activities of pest control operators, including contracts and issuance ofletters of clearance. Rules & Regulations of the State Plant Board, 003-11-011 Ark. Code R. §11(4) (Weil 2004) provides the following:
Letters of clearance must be accompanied by a signed contract providing a guarantee of at least one year and a graph or diagram showing, if present, the location of active or inactive wood destroying insect infestations and visible damage. If present, conditions existing to the substructure favorable to decay fungi and possible damage due to rot must be disclosed in the additional comments section on the form.
The letter should also clearly describe any areas inaccessible for inspection.
The “Standard Contract For Treatment of Wood-Destroying Insects” shows execution by Langer and Stalnaker on September 17, 2003. It indicates that a graph comprises part of the contract, and the contract shows the name Elaine Goode as representative of Pest Management, and a date of September 12, 2003. The referenced graph shows an inspection date of September 12, 2003, and notes at the top “Treatment,” in handwritten letters. The letter of clearance shows a date of September 12, 2003, next to Elaine Goode as operator in charge but also bears the date September 15, 2003, directly beneath the following sentence: “This property has been _ treated _ pre-treated by Pest Management, Inc.” The quality of the copies of the letter of clearance included in the record do not permit a determination of whether either treated or pre-treated was checked on the original document.
The “Standard Contract For Treatment of Wood-Destroying Insects” provides that for the sum of $600, Pest Management will provide treatment and protection as set out in the contract. It also indicates that the contract can be renewed each year by payment of $115 on or before the end of the previous annual period. The graph created on September 12, 2003, consistently indicates that the termite protection contract can be renewed by payment of $115 at the time of the annual inspection, and the next annual inspection is noted as due on September 12, 2004, one year from the inspection at issue in this case.
The facts show that, pursuant to the above noted regulations, the letter of clearance was issued along with a contract providing a guarantee of at least one year, a graph or diagram purporting to show no current termite problems, and the location of fungi and conditions detrimental to the substructure. The inspection, the graph, and the letter of clearance were created, issued, and are controlled by the “Standard Contract For Treatment of Wood-Destroying Insects” executed by Langer and Stalnaker on September 17, 2003. The State Plant Board inspection report is consistent with this conclusion. It indicates that what is at issue is “substandard termite treatment,” and shows September 12, 2003, as the date of the inspection and creation of the graph, and as the “date treated.” The State Plant Board ordered Pest Management to, among other things, provide clearance and access, and repair the home. The report contains the following instruction:
TO THE OPERATOR: Please bring the treatment up to standard with respect to the items noted above. In addition, please make a thorough examination and should you find that the inspector has overlooked any other defects in the work, please correct these also. Then, return this sheet to the Board, after having noted in the space below, in detail, just what you have done, not later than 15 days after the date of this notice, keeping duplicate for your files. The Board will then reinspect as soon as possible.
Clearly, the “Standard Contract For Treatment ofWood-Destroying Insects” included the initial inspection, or “treatment” as it is referred to in the regulations and by the State Plant Board, and creation of the graph and the clearance letter. As required, the contract provided a year guarantee and an option to renew the contract yearly. There is no merit to Langer’s claim that the inspection, graph, and letter of clearance were not issued pursuant to the “Standard Contract For Treatment of Wood-Destroying Insects.” The circuit court erred in its contrary finding.
Arbitration
We now turn to the arbitration agreement contained in the contract. The contract contains a section entitled “ARBITRATION,” which provides:
Customer and Pest Management agree that any claim, dispute or controversy between them or against the other or the employees, agents or assigns of the other, and any claim arising from or relating to this Contract or the relationships which result from the Contract, no matter against whom made, including the applicability of this arbitration clause and the validity of the entire Contract, shall be resolved by neutral binding arbitration by the National Arbitration Forum... under the Code of Procedure of the National Arbitration Forum in effect at the time the claim is filed.... Each party shall be responsible for paying its own fees, costs and expenses and the arbitration fees as designed by the Code of Procedure. The decision of the arbitrator shall be a final and binding resolution of the disagreement that may be entered as a judgment by a court of competent jurisdiction. The 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 - 9 U.S.C. § 16. Each party consents to the personal jurisdiction and venue of the courts in which the property is located and the courts of the State of Arkansas and the U.S. District Court for the Eastern District of Arkansas. Judgment upon the award may be entered in any court having jurisdiction. Neither party shall sue the other party with respect to any matter in dispute between the parties other than for enforcement of this arbitration provision or of the arbitrator’s decision, and a party violating this provision shall pay the other party’s costs, including but not limited to attorney’s fees, with respect to such suit and the arbitration award shall so provide. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE TO HAVE ANY DISPUTES DECIDED THROUGH ARBITRATION.
The contract specifically provides that the arbitration provision and the inspection graph are part of the contract. The requirement of arbitration is broad and requires that any claim, dispute or controversy between them or against the other or the employees, agents or assigns of the other, and any claim “arising from or relating to this Contract or the relationships which result from the Contract, no matter against whom made, including the applicability of this arbitration clause and the validity of the entire Contract, shall be resolved by neutral binding arbitration.” The intent to arbitrate any claims arising from the contractual agreement is clear. Even if the intent were not clear, any doubts and ambiguities must be resolved in favor of arbitration. Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004). Arbitration is strongly favored in Arkansas as a matter of public policy and is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Cash In A Flash Check Advance v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002). The disputes in this case are subject to arbitration.
However, the circuit court also found that Langer’s claims sound in tort and thus are not subject to arbitration in any event because tort claims are not subject to arbitration under the Arkansas Arbitration Act. Ark. Code Ann. §§ 16-108-201 to -222 (Repl. 2006). The circuit court also relied on Terminix International Co. v. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996), in this regard. However, Terminix concerned application of the Arkansas Arbitration Act, not a contract applying the FAA.
Under Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281 (1995), the FAA applies if the transaction involves “interstate commerce, even if the parties did not contemplate an interstate commerce connection.” In Allied-Bruce, the Court held that the FAA applied to a termite protection agreement and required enforcement of its arbitration provision. The Court stated that the language of the FAA makes an arbitration provision enforceable in “a contract evidencing a transaction involving commerce” “to the limits of Congress’ Commerce Clause power.” Id. at 268. Further, in the present case, the parties contracted that the subject matter concerned a “transaction involving interstate commerce.” This case is subject to arbitration under the FAA.
Reversed and remanded.
Cash In A Flash Check Advance v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002), also concerned an issue under the Arkansas Arbitration Act and found that tort claims were not subject to arbitration under the Act.
Parties to a contract are free to contract upon any terms not contrary to public policy or the terms of our statutes. Lewis v. Mid-Century Ins. Co., 362 Ark. 591, 161 S.W.3d 298 (2005); Travelers Ins. v. Nat'l Farmers Union, 252 Ark. 624, 480 S.W.2d 585 (1972). | [
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Riddick, J.
This is an appeal by Bob Thomasson from a judgment of the Hempstead Circuit Court convicting him of selling whisky without license and assessing a fine against him for such offense.
The witness for the State testified that one Simms gave him fifty or seventy-five cents with which to purchase whisky, and that he went to defendant and obtained the whisky and delivered it to Simms. This witness was afflicted with a very weak memory, and was not certain whether he paid defendant for the whisky or not, but finally said that he thought that he did, or that to the “best of his knowledge” he did. He could not remember on what date the whisky was purchased, or whether it was within a year before the finding of the indictment or not. The State then put Simms on the stand, who testified that on one occasion he had given the prosecuting witness a small amount of money with which to procure whisky, that an hour or so after-wards the witness returned with the whisky, and that the date on which this transaction occurred was less than a year before the finding of the indictment.
The evidence of the prosecuting witness was not very satisfactory, but it impresses us with the belief that he was trying to shield the defendant as much as possible. In endeavoring to refresh his memory the prosecuting attorney was permitted to ask him whether he had not previously made certain statements to himself and the grand jury, and we think that under the circumstances it was permissible to ask such question. The circuit judge has a large discretion in matters of that kind, and we do not think there was any abuse of it in this case.
The facts and circumstances detailed by the witness Simms were part of the transaction by which the whisky was obtained' by him. This testimony was competent in order to fix the date on which the whisky was sold, and to show that it was within one year before the finding of the indictment, and that the prosecution was not barred by limitation.
On the whole case, we think that there was no prejudicial error, and,that the evidence is sufficient to support the verdict.
Judgment affirmed. | [
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McCulloch, J.
This is an action brought by appellant, C. N. Smith, to recover from appellee, Dan Gilbert, the value of the services of his (appellant’s) son, who was a minor, and also damages sustained on account of appellee having enticed the boy away from his parent. It is alleged in the complaint that the defendant wrongfully enticed the minor son of the plaintiff away from home and employed him for a period of six months without the plaintiff’s consent and over his written objection.
It is undisputed that the defendant hired plaintiff’s son, without the consent of the parent, and retained the son in his employment for a period of six months at wages of ten dollars per month which he paid to the boy, and that a few days after defendant hired the boy the plaintiff sent him written notice in the following words: “You are hereby warned not to employ my'son, Tommie. If you do, I will hold you responsible.” The boy1 testified that his father drove liim away from home, and told him not to return. This was denied by the plaintiff in his testimony. They both testified that before the boy left home his father offered to furnish him land and a mule and give him for his services one-half of all the crop he raised.
The court, at the request of defendant’s counsel, gave to the jury the following instructions over plaintiff’s objections:
“i. The court instructs the jury that if they believe from the evidence in this case that the plaintiff, C. N. Smith, ordered his son, T. P. Smith, to leave home, and told him that he must get another home, your verdict will be, “We, the jury, find for the defendant.”
“2. The court instructs the jury that if they believe from the evidence that C. N. Smith, the plaintiff, had at any time' before Daniel Gilbert hired the son, T. P. Smith, set him free, or by making a deal that he, the said T. P. Smith, was to make a share crop, your verdict will be, “We, the jury, find for the defendant.”
“3. The court instructs the jury that if they believe from the evidence that the defendant did entice or persuade the son, T. P. Smith, from his father, C. N.‘ Smith, or that lie wrongfully hired him, and that defendant paid the sum of ten dollars per month to the said T. P. Smith, and that the -said T. P. Smith used the money so obtained from. Gilbert in purchasing the necessaries of life, you will deduct said amount from whatever damage you find the plaintiff entitled to.”
The first instruction quoted above is said to be incorrect, for the reason that it entirely ignores the plaintiff’s revocation of his command to his son to leave home and his implied consent that the defendant might hire the boy. There seems to be some conflict in the authorities as to the right of the parent to revoke the manumission of his child when once made; but there can be no doubt upon the proposition that where the parent has compelled his child to leave home and seek temporary employment elsewhere for a reasonable length of time, it operates as an act of manumission for the time, and can not be revoked by the parent so as to abrogate a contract for service fairly entered into between the emancipated child and his employer. Such contracts, made after the act of emancipation and before the revocation, can not be thus disturbed by the parent. It was, therefore, not erroneous to give the instruction in question.
The second instruction was erroneous in that it told the jury that the parent, by offering his son a share in the crop he might raise On the farm, waived his right to claim the earnings of the son under a subsequent hiring to the defendant without the consent of the, parent. This is not the law. The offer of a parent to give his child a part of all of his earnings while working for him does not operate as an emancipation of the child.
The third instruction is erroneous for the reason that it allows the defendant credit for money paid to the plaintiff’s son, even though he may have wrongfully hired the boy over the plaintiff’s objection, and even though the plaintiff had not refused to furnish his son necessary food and clothing. The rule is that the parent can not be made liable for the necessities furnished to his child unless he had refused to furnish them himself. Any other rule would .allow the child or a stranger, and not the parent, to be the judge of the needs of his child. Rodgers on Dom. Rel. § 493.
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Hill, C. J.
Appellee had a filly, a mare and a mule killed by appellant company’s train in the Indian Territory, and brought suit against appellant for the value thereof at Ft. Smith, Ark., where appellant is also found operating a railway.
1. The court gave this instruction: “It was the duty of defendant’s engineer to keep a lookout for stock upon its track, and to use'ordinary care to avoid injury to stock after they had been discovered by him, or after he might have discovered them by the use of ordinary care and diligence.”
Parts of the law of Arkansas, as found in Mansfield’s Digest (1884) thereof, were adopted by Congress as law in the Indian Territory, but the chapter upon railroads was not adopted. The act of 1891 (sec. 6607, Kiriby’s Digest), known as the “lookout statute,” has never become incorporated into the laws of the Indian Territory. It is contended that, as this court held in Memphis & Little Rock R. Co. v. Kerr, 52 Ark. 162, that it was not the duty of "the engineer to keep a sharp lookout for stock, and in St. Louis, I. M. & S. Ry. Co. v. Monday, 49 Ark. 257, that it was not the engineer’s duty to keep a sharp lookout fol persons on the track, in the absence of the “lookout statute” which changed the rule in this State announced in those cases, this instruction is erroneous. This case must be tried by the law of Indian Territory. St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 295.
The United States Circuit Court of Appeals for the 8th Circuit is the appellee tribunal for the Indian Territory, and that court refused to follow thp-Kerr case, and held that it was negligence to fail to keep a lookout for stock on the track. After discussing the Arkansas cases and showing the Kerr case was out of line with previous decisions, and the reason why this duty should be imposed on the operatives of trains, Judge Caldwell, speaking for the court, said:
“We can not yield our assent to the doctrine that an engineer who refuses to look, or is blind, or near sighted, may run his engine over and kill domestic animals ad libitum, and without imposing a liability on his company therefor, because he did not see them. It is the duty of the company, under the conditions which exist in this Territory, to exercise ordinary care and watchfulness to discover domestic animals upon its track, and, when they are discovered, to use reasonable efforts to avoid harming them.” Gulf, C. & S. F. Ry. Co. v. Washington, 49 Fed. Rep. 347; Gulf, C. & S. F. Ry. Co. v. Ellis, 54 Fed. Rep. 481. There was no error in this instruction.
2. It is argued that, as section 6776, Kirby’s Digest, as construed in Little Rock & F. S. Ry. Co. v. Clifton, 38 Ark. 205, Railway Co. v. Lindsay, 55 Ark. 282; Little Rock & F. S. Ry. Co. v. Jamison, 70 Ark. 346, and St. Louis, I. M. & S. Ry. Co. v. Gray, 72 Ark. 376, localizes the action for stock killing to the place of injury, this action, occurring without the State, could not be maintained within the State. This statute merely regulates the bringing of the statutory action created by it for killing and wounding stock in Arkansas, and is made by its terms local to the county where the cause of action arose. It was held in Little Rock & F. S. Ry. Co. v. Clifton, 38 Ark. 205, that, except for the terms of the statute, the action for killing or injuring stock was transitory. This is manifestly true. This action is not the statutory action in any sense. It does not grow out of the statute, which is not framed to reach any causes of action other than those arising in Arkansas.
This action depends upon the law of the Indian Territory as to the duty of appellant and its alleged breach of duty in negligently killing appellee’s stock. It is personal and transitory in its nature, and may be enforced anywhere that jurisdiction may be had of the appellant company. St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 295; St. Louis & S. F. Ry. Co. v. Brown, 62 Ark. 254; Eureka Springs Ry. v. Timmons, 51 Ark. 459; Kansas City So. Ry. Co. v. McGinty, 76 Ark. 356.
3. It is argued that a peremptory instruction should have been given for want of evidence of negligence. The filly was struck first, the mare 30 or 40 yards beyond her, and the mule 70 or 75 yards beyond the mare. Appellee’s evidence showed the tracks of the animals indicated that they had run down the track a quarter of a mile before the first one was struck, and, despite a small curve where the animals went on the track to where they were struck, a person could see, either way on the track for a half mile from a point where the first one was struck. McLain, a witness for appellee, said he stepped the distance from where the filly was struck to where an engine approaching from the north could be seen, and it was 537 steps, and that he had observed the light made by a headlight to an engine, and it lighted one-half the track from center to rail at that point, and that the horse tracks were in the center. The engineer said that a man could only see 80 or 100 feet around the curve at this point, and that he was keeping a sharp lookout and saw no stock except one animal just as he struck it; and that the train could be stopped in about 240 feet.
The evidence on behalf of appellee justified the jury in finding the train operatives negligent in keeping a lookout or avoiding injury after discovering the animals. The engineer and fireman told another story, but it was inconsistent with the evidence of appellee and his witness, and it was for the jury to say which was the truth.
The judgment is affirmed. | [
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McCulloch, J.
Wm. IT. Wood of Memphis, Tenn., was the owner of the quarter-section of land in controversy, situated in St. Francis County, Arkansas, and died, leaving his last will and testament, whereby he devised the same to Napoleon Hill, Noland Fontaine and Robt. IT. Wood as trustees with full power to sell and convey all the lands owned by him. Robt. IT. Wood resigned as trustee, and S. P. Read was appointed m his stead.
In the'year 1891 or 1892 the defendant, Dan Peoples, and another, to whose rights he has succeeded, entered into possession of said tract of land, which was then wild and unimproved, and he has continued to occupy the sanie since then. ITe has cleared, fenced and put into cultivation from 60 to 75 acres of the land (according to the varying estimates of the witnesses) and built several houses thereon. ITe claims to have purchased the land fom one Featherstone, who is alleged to have been acting as agent for said trustees, and made payment on the purchase price from year to year to Featherstone and other agents of .the trustees. These trustees all resided in Memphis.
In July, 1903, said trustees instituted in the circuit court of St. Francis County an action of unlawful detainer against the defendant, Peoples, to recover possession of said land, alleging in their complaint that said defendant had been occupying said land as their tenant, and was holding over without right.
The defendant filed, his answer, cross-complaint and motion to transfer to equity, and set forth his alleged contract for the purchase of the land at the price of $1,600, payable in ten years without interest, and prayed for a specific performance of the plaintiffs’ alleged contract to convey the land to him.
The cause was transferred to the chancery court, and the plaintiffs then filed an amended complaint and answer to the cross-complaint, denying all the allegations of the cross-complaint with reference to any sale of the land to defendant. Upon final hearing the chancellor found in favor of the defendant as to the contract for the sale of the land, and entered a decree for specific performance of the contract, and made a reference to a master to state an account of the amount of balance due by the defendant on the purchase price and the taxes paid on the land by the plaintiffs. The master reported a balance of $762.98 due by defendant, the court overruled the plaintiffs’ exceptions to said report, decreed the same to be a lien on the land, and ordered a sale thereof by commissioner. The plaintiffs appealed.
We are of the opinion that the finding of the chancellor that there was a sale of the land to the defendant by Featherstone as agent of the plaintiffs is not against the preponderance of the evidence. It is strenuously urged by counsel that none of the trustees except Mr. Hill agreed to the sale, and that he, acting alone, was without authority to make the sale; that it required the concurrence of two of the trustees to make a valid sale under the power contained in the will. It undoubtedly required the concurrence of two of the trustees, but we can not say that the chancellor was wrong in his conclusion that the other trustees acquiesced in or ratified the act of Hill in making the sale. It appears from Mr. Fontaine’s testimony that he offered to sell the land to Featherstone, and we think the chancellor was not without warrant from this proof in finding that these trustees adopted and ratified the acts of each other in contracting for sales of land. Moreover, the trustees permitted the defendant to occupy the land from year to year, to make valuable improvements, and also to make payment to them from year to year. It is true that they say that they accepted these payments as rent, and had no actual knowledge that the defendant was claiming to be the purchaser of the land; but, even without actual information, they were bound to take notice of his rights when they were receiving payments from 'him annually and knew that he was making valuable improvements on the land. We do not overlook the principle that those acting in a representative capacity can not delegate their authority to another. These trustees could not legally delegate to an agent the authority to fix prices on the lands and make sales, but a ratification of the sale made by the agent was equivalent to making the sale themselves.
We think there was, however, error in the decree in fixing the price of the land at $800. The defendant alleged in his pleadings that he agreed .to pay $10 per acre or $1,500 for the whole tract. He testified that he agreed to pay that amount for it, and Featherstone testified that the defendant was to pay $1.5 per acre. The chancellor evidently based his conclusion upon an offer made by Fontaine, one of the trustees, to sell to Feather-stone for $5 per acre, payable in cash on October 1, 1893. He therefore fixed the price at $800, and charged the defendant with interest at six per cent, per annum from October 1, 1893. In this he erred. It is not shown that Featherstone accepted the offer. Certainly, he never paid the price nor received a conveyance. On the contrary, it is shown that he disregarded thjs offer, and sold the land to the defendant for a much higher price. He had moved to Texas long before this litigation arose, and in his deposition states his recollection of the transaction as follows : “My recollection is that the price was about $15 per acre for whatever he (Peoples) bought, and payments to commence three years after date of sale. All the land was in the woods, and the buyers were to be given time, about equal to the usual lease, before being called on for payments.” Appellee testified : “I bought the land from Mr. Featherstone. I was to pay him $10 per acre, and was to have ten years to pay for it< without interest.’!
There can be no correct theory of the case, considering the proof adduced, upon which the defendant can be permitted to take advantage of the unaccepted cash offer made to Feather-stone, in the face of his express agreement to pay double that price. We think the preponderance of the evidence establishes the fact that the agreed price of the land was $1,600, payable in installments without interest. Adding to this the amount of taxes paid by plaintiff on the land, with interest thereon, makes a total of $1,682.25. Deducting the total payments, $655, made by the defendant (not including the payments to Featherstone which the latter testified were not on purchase price but on advance made for building material and supplies) leaves a balance of $1,027.25 which the defendant must pay, with interest at six per cent, per annum from .November 1, 1902.
The decree is therefore affirmed as to the specific performance of the contract to convey, but reversed as to the amount found due on the purchase price, with directions to enter a decree for the plaintiffs for the sum named above with interest aforesaid. It is so ordered.
Battle and Wood, JJ., dissent, holding that the cause should be reversed and remanded with directions to dismiss the^ cross-complaint for want of equity and to enter a decree in favor of the plaintiffs for possession of the land. | [
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Wood, J.,
(after stating the facts.) Appellant was an old resident of the town of Russellville, Arkansas, and was familiar with the crossing of Jefferson Street, where his injury occurred. On the day of the injury he approached the crossing,'going from his home along a path that went in a southeast course to the crossing of Jefferson Street and the railroad. A cotton platform which obstructed his view of the railroad tracks intervened until he ascended the dump of the railroad grade and came near the tracks at the crossing. He looked west towards the depot, and there was a part of a train. He thought there was no danger, “looked east,” and then “got knocked down.” Appellant did not stop, he “picked his way a little to keep out of the mud.” Loose dirt had been dumped on the ground to walk on, and it was soft. From the time appellant got upon the dump near the railroad tracks, there was no obstruction to his vision in the direction of the engine that struck him. At that time he was looking toward the east. Some of the witnesses say he “had his head down.” Fie came so close to the track that the engine knocked him down, and the second little wheel in front crushed his foot. There was some proof tending to show that the railway company was guilty of negligence. But appellant was also guilty of contributory negligence. As he approached the railway, he should have looked in both directions for trains, and should have continued to look until the danger was passed. Fie was walking slowly, and the train was moving slowly. There was nothing to obstruct his vision after getting upon the dump within a few feet of the tracks. He should have surveyed the situation, instead of walking headlong upon or so near the track as to be struck. Contributory negligence follows as matter of law under such circumstances. St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; Martin v. Little Rock & F. S. Ry. Co., 62 Ark. 158; Little Rock & F. S. R. Co. v. Blewitt, 65 Ark. 238; St Louis, I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372; Choctaw, O. & G. Rd. Co. v. Baskins, 78 Ark. 355; Tiffin v. St. Louis, I. M. & S. Ry Co., 78 Ark. 55; Scott v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 137. Therefore appellee was entitled to a peremptory^ verdict, unless, having discovered appellant’s perilous situation, it failed to exercise such care as an ordinarily prudent person would exercise under the circumstances to prevent the apprehended danger. The engine was switching; it was running about four to six miles an hour. The engineer said he did not think it was much faster than a‘ “pert walk” for a man. The engine was equipped with air. The engineer “judged” that he could stop the train running from four to six miles per'hour at a distance of thirty feet. He could not see the appellant from the engineer’s side, and did not know that he had run over appellant until the fireman jumped off his seat when ‘the.front end .of the engine was about midway the crossing, and said he believed “we hit that man.” After the remark, just as soon as he heard there was any danger, he applied the air in the emergency immediately, and made as quick a stop then as possible.
The fireman was on the left side of the engine going east, the same side that appellant was on. When the fireman saw appellant the engine was “pretty close” to the crossing, he did not lemember exactly the distance. The engine was something near the end of the cotton platform, “maybe a little past o,r not quite to it.” Appellant was four or five feet from the track, and “looked like he was just coming across in some study with his head down” when the fireman first saw him. Appellant’s back and side were rather toward the train. The fireman had known appellant a long time. When he saw appellant four or five feet from the track going towards- it, he hallooed at him. -At that time the fireman was something like twenty or maybe thirty feet from him, and the front of the engine and appellant were about four or five feet apart. Appellant paid no attention, and the fireman stepped down in front of the boiler, sajdng: “I, thought it was going to kill him.” From his experience the fireman thought the' engine was stopped as quickly as possible. The above is the testimony of the engineer and fireman. The proof tended to show that from the east end of the cotton platform to where appellant was struck was fifty-five or sixty feet. The engine was stopped before the “driver” wheels got to appellant. One witness testified he heard some one halloo before the engine struck appellant, and at that time the witness said the engine, he guessed, was between “fifteen and thirty feet from Griffie.” Witness was thirty or thirty-five yards from Griffie at the time.
We are of the opinion that it was a question of fact for the jury to determine, under this evidence, as to whether or not appellee exercised the proper care after having discovered the dangerous situation of appellant to avoid injuring him. The court erred in declaring as matter of law that appellee was not negligent.
As the cause must be sent back for new trial, we deem it unnecessary to comment upon the testimony.
Reversed and remanded for new trial. | [
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Battle, J.
On the 30th of March, 1904, the Delta Cotton Company and Edward Cary, trustee, instituted this suit, against the Arkansas Cotton Oil Company, in the Jefferson Chancery Court, to foreclose a certain deed of trust and to recover the value of certain cotton seed. Plaintiffs alleged in their complaint that W. B. Powell, on the 30th day of January, 1903, executed to Edward Cary, as trustee, and to the Delta Cotton Company, as a beneficiary, a deed of trust whereby he conveyed,- among other things, the entire crop of cotton, cotton seed and corn grown and to be grown during the. year 1903 on certain described -real estate in the county of Jefferson and State of Arkansas, in trust to secure the payment of a certain indebtedness; that the deed of trust was duly acknowledged and filed for record in the recorder’s office of Jefferson County, on the 30th day of January, 1903; that of the indebtedness secured by the deed of trust the sum of $8,000 now remains due and unpaid; that Powell during the year 1903 sold and delivered to the defendant cotton seed embraced within the trust deed; and that the cotton seed so sold and deliv» ered was about ninety tons, of the value of about $1,800, and was sold on or about October 14, 26 and 30, and November 14, all in the year 1903; and that the defendant has appropriated and converted the cotton seed and the proceeds thereof to his own use and benefit, and has failed to account, on demand, to plaintiffs, or either of them, therefor.
Among other defenses which we do not consider necessary to notice, the defendant states: (1) The cotton seed mentioned was not included in the deed of trust. (2) The cotton seed was sold to it with the consent of plaintiffs.
The chancery court, upon the hearing of this cause, sustained both of the defenses, and dismissed the compaint for want of equity; and the Delta Cotton Company appealed.
The cotton seed described and conveyed to the trustee by the deed of trust executed by Powell was the cotton seed grown or to be grown during the year 1903 on the certain lands described in the deed of trust. Powell covenanted with the trustee that the seed was free from all incumbrances and charges, and that he would warrant and defend the title thereto unto the trustee, his successors and assigns, forever, against the lawful claims of all persons. The seed in controversy was grown during the 3'ear 1903, and on the lands described in the deed of trust, by tenants and share croppers of Powell, except 15 tons, which were grown by Powell, and were acqhired by him, Powell, before the sale to the defendant.
In Apperson v. Moore, 30 Ark. 56, this court held, in the absence of a statute, that “where a mortgage is executed on an unplanted crop a lien attaches in equity as soon as the subject of the mortgage comes into existence, and in a proceeding ho foreclose will be enforced against the mortgagor and those holding under him with record notice.”
Section 5405, Kirby’s Digest, provides: “All mortgages executed on crops planted, or to be planted, shall have the same force and effect to bind such crops and their products as other mortgages now have to bind property already in being.” Under this statute this court held in Jarratt v. McDaniel, 32 Ark. 598, that a mortgage on an unplanted crop is valid at law, and the mortgagee can maintain replevin for the mortgaged property against a purchaser thereof for a valuable consideration, the mortgage having been filed for record before the purchase.
In Williams v. Cunningham, 52 Ark. 439, this court said: “It is the result of all the authorities that wherever the parties by their contract intend to create a positive lien or charge, either upon real or personal property, whether then owned by the assignor or contractor or not, or, if personal property, whether it is then in esse, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto under him, either voluntarily or with notice by record.”
The cotton seed in controversy was included in the deed of trust, and was held, bound, and conveyed by it to the trustee in trust to secure the payment of Powell’s indebtedness to the Delta Cotton Company.
The preponderance of the evidence shows that plaintiffs or either of them did not consent that Powell should sell the seed. The deed of trust in effect prohibits the sale of the seed by Powell. No witness testified that plaintiffs expressly consented to the sale. Powell testified that he inferred such consent from circumstances which were clearly overcome by the evidence in the case.
Appellee cites Blakemore v. Eagle, 73 Ark. 477, to show that the cotton seed in controversy was not included in the deed of trust executed by Powell. But it does not do so. The deed of trust involved in the case cited describes the property mortgaged as follows: “The entire crop of cotton and corn that I may raise or cause to be raised and cultivated during the year 1898 on my plantation known as the Blakemore place in Lonoke County, * * * being about 1,400 acres in cotton and 400 in corn,” etc. The cotton in controversy in that case was raised by tenant or tenants of Blakemore, who executed the deed of trust, and not by Blakemore. The court was of the opinion that the cotton was not covered by the deed of trust. A comparison of description of the property mortgaged in the deeds of trust in the two cases will show that the case cited does not support the contention of appellee.
Reversed and remanded for decree and proceedings consistent with this opinion. | [
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Riddick, J.
The Valley Pine Lumber Company, a corporation, made a contract with the Henry Lumber Company, a partnership, to cut and haul timber belonging to the Valley Pine Lumber Company and saw it into lumber. In order to carry out this contract, the Henry Lumber Company contracted with J. T. Hodgens to cut the timber into logs for hauling. Afterwards the Henry Lumber Company became embarrassed financially, and in order to settle its accounts with the Valley Pine Company it transferred its mill, a considerable number of logs and certain other property to the Valley Pine Company. This transfer left the Henry Company without assets to settle its remaining debts, the members of that firm being practically insolvent. At the time this transfer was made, the Henry Company owed Hodgens $214.81, all but one dollar of which was for work done by him and his employees in cutting logs.
As Henry was unable to pay this debt, Hodgens brought this action in equity to have the conveyance made by the Henry Company to the Valley Pine Lumber Company declared fraudulent and to enforce a laborer’s lien on the lumber made from the timber cut by him. On the hearing the chancellor found that the Valley Pine Lumber Company had received and converted to its own use lumber on which the plaintiff Hodgens had a lien for $214.81, and that the value of this lumber exceeded the claim of plaintiff. He therefore gave judgment against the defendant, the Valley Pine Lumber Company, for the amount claimed by plaintiff, and the Valley Company appealed.
The evidence does not show any fraud in the sale of the Henry Company to the Valley Pine Lumber Company. It seems also plain from the evidence that the Valley Pine Company had notice of the lien of the plaintiff on the logs cut and delivered by him to the Plenry Company, and which they purchased from that company. The only real question is the amount of this lien. The evidence shows that Hodgens did not do all of the labor on these logs. It was inconvenient for him to saw the logs himself, and he hired one and sometimes two hands to help him. He testified that he performed about half of the work himself. He paid the laborers whom he hired to assist him, and his counsel, contends that, as these laborers had liens, the plaintiff had the right to pay them and enforce their liens against the property. In other words, that he would be 'treated in equity as the assignee of their liens to the extent of his debt.
Perhaps the statute should give this right to one who in performance of a contract for work and labor hires another to assist him in the labor. But the statute as written gives the lien to the one who performs the labor, and not to the one who hires labor performed and pays for it. Klondike Lumber Co. v. Williams, 71 Ark. 334. Nor did this payment operate as an assignment of the lien of the laborer whose debt was paid. When Hodgens paid the laborer whom he hired to assist him, he discharged a debt which he owed, and his payment did not operate as an assignment to him of the lien held by the laborer for his debt. The effect of the payment was to extinguish both the debt and the lien, for the lien could not exist after the debt on which it was based had been discharged.
The logs were not in possession of plaintiff, but had been delivered by him to the Henry Lumber Company, and by them sawed into lumber. While the plaintiff did not have a lien on this lumber for the full amount of his debt against the Henry Lumber Company, he is entitled to a lien to the amount due him for actual labor performed by him in cutting the logs from which the lumber in question was made. The most favorable view of the evidence in behalf of -plaintiff is that he performed in person about half of the work that he is charged for. We think that he is entitled to a lien for one-half of the $214.81 due him for work on the logs which he and the hired man cut under his contract with the Henry Company. The judgment will be modified, and a judgment for that amount, with interest, against the Valley Pine Lumber Company affirmed.
It is so ordered. | [
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Battle, J.
The Western Tie & Timber Company brought suit against Charles Brasch to quiet its title to a certain tract of I land and to cancel a deed held by the defendant for the same. The deed was. executed by the clerk of the county court of Jacksqn County on the sixteenth day of June, 1902, in pursuance of a sale for taxes levied and assessed against the land for the year 1899, and the accrued penalty and cost, made on the nth day of June, 1900. Plaintiff attacked the sale on various grounds, among which are the following:
“The list of lands delinquent for the taxes of 1899 was not filed by the collector as the law required; the collector did not make and attach to what purported to be the delinquent list of lands sold for the taxes due thereon, which he had been unable to collect for the year 1899, the affidavit of the correctness of such list as the law required, or at all;” the land was illegally sold for the following fees, charged against it, towit, the clerk’s charge of five cents for furnishing a copy of the delinquent list to the printer, and ten cents for attending the sale and making a record thereof, and collector’s fee of ten cents for attending the sale; and was sold for a tax of two dollars illegally levied for school purposes.
The defendant answered “and specifically denied the various grounds alleged by appellee as to the invalidity of the tax sale, including those above set out, and in addition to such denial alleged in substance and effect that such list was duly made out by the collector, had the affidavit of the collector attached thereto as to the correctness of such list, and that said list and affidavit was duly filed in the office of the county clerk in apt time as required by law, but that through no fault of appellant, and without his knowledge or consent, some one detached the sheet containing such affidavit and file mark from the remaining ten sheets of paper comprising such delinquent list of lands, and such sheet of paper has been lost or destroyed. This part of the answer asked the court to restore said delinquent list together with affidavit and file mark thereon to its original condition, so far as this cause is concerned, and to consider such record as in its original condition when filed.”
An instrument of writing, found in the clerk’s office of Jackson County and purporting to be the delinquent list of real estate for 1899, and bearing date the 14th of May, 1900, was introduced and received at the hearing of this cause as evidence. It showed the taxes, penalty and cost charged and levied against each tract and for 'which it was returned delinquent, among which tracts was the land in controversy. “This list consisted of ten sheets of paper fastened together with a brass fastener and so arranged that the fastener could be bent back and the outside or back sheet thereof easily removed without mutilating or destroying the remaining sheets, but this real estate delinquent list did not have any filing mark on it nor any affidavit of the collector thereto attached as to the correctness of such list.”
The defendant took the depositions-of J. G. Walker and M. j B. Brewer, in which they .testified that Walker was collector, and .collected the taxes that were levied and assessed in Jackson County for the year 1899, and Brewer was his deputy, and assisted him in the collection of the taxes, and that he was succeeded in November, 1900, by R. W. Bandy; that Brewer “made out the list of lands delinquent for the nonpayment of taxes for the year 1899; that the list consisted of a number of sheets of paper fastened together with a brass fastener; that the list was made out complete, and had an affidavit thereto attached as to the correctness thereof, which affidavit was on a sheet of paper by itself; that Brewer and Walker took the list and affidavit to the county clerk’s office for the purpose of filing, and that Walker made the affidavit and filed it. Walker testified that this list and affidavit attached were filed by the second Monday in May, 1900; that afterwards, when Bandy had completed the collection of the taxes of a certain year as far as possible and was preparing the delinquent list of lands for filing in the county clerk’s office, Bandy spoke to him about a form of affidavit which should be attached, and to get such form he (Walker) went into the county clerk’s office and got the delinquent list of lands which he had filed while he was collector, and detached the sheet containing the affidavit from the other sheets, and took it into Bandy’s office and left it there, and does not know what became of it. Bandy testified that he remembered that Walker got the affidavit, and that he had made search for it in his and the clerk’s offices, and had not been able to find it.
The record in this case does not show that either one of the school directors, who held the election pursuant to which two dollars was' assessed and levied upon the land in controversy as a tax for school purposes for 1899, took the oath of office prescribed by law for judges of election, and shows that only one of the clerks did.
Upon motion of plaintiff the depositions of Brewer and Walker were excluded as evidence by the court because they were incompetent and irrelevant.
The cause coming on to be heard, the court found that the deed of defendant is void “for the reason that the affidavit of the collector was not made to the delinquent list for the year 1899, and that the delinquent list was not filed in the time prescribed by law'.” And*the court further found “that if the testimony of the character contained in the depositions of J. G. Walker and M. B. Brewer were admissible in this action then the finding would be for the defendant.” And the court canceled, annulled and set aside defendant’s deed as a cloud upon the title of the plaintiff.
The court erred in excluding the depositions of Walker and Brewer. They should have been admitted, the prope.r foundation having been laid. The rule in such cases, as held by this court, is as follows: “Whether a record be ancient or recent, after proof of its loss or destruction satisfactory to the court, its contents may be proved, like any other document, by any secondary evidence, when the case does not, from its nature, disclose the existence of other and better evidence.” Davies v. Pettit, 11 Ark. 349, 367; Hallum v. Dickinson, 47 Ark. 121, 125; Gates v. Bennett, 33 Ark. 475, 489.
Plaintiff argues that the affidavit of the collector required by law to be attached to the list of lands and taxes returned delinquent should be recorded with the list by the clerk, and the record is the only competent evidence of its existence. But this contention is not correct. The. affidavit and list are mentioned in the statute as two distinct things, and one is- not included in the other. The requirement of one to be recorded does not include the other. Upon filing the list the statute requires the clerk of'the county court to carefully scrutinize it and compare it with the tax books and record of tax receipts and to strike from it any tract of land, city or town lot upon which the taxes have been paid, or which does not, appear to have been entered upon the tax book, or that shall appear from the tax book to be exempt from taxation, and to cause the same as corrected to be published, with notice that the lands, or so much thereof as may be necessary, will be sold at a time and place fixed according to the statute, and to record the list and notice in a book to be by him kept for the purpose. ■But the affidavit is not required to be recorded. Kirby’s Digest,' § 7083-7086.
K The tract of land in controversy was properly sold at the tax sale, in part, for five cents due the clerk for furnishing copy of delinquent lands to printer, and ten cents due him for attending sale of the land and making record thereof, and ten cents due the collector for attending the sale. Salinger v. Gunn, 61 Ark. 414; Lewis v. Cherry, 72 Ark. 254.
The failure of the directors and clerks who held the election pursuant to which the school tax was levied to take the oath prescribed by statute for election officers did not affect the validity of the school tax. They were de facto election officers, and their acts affected only third persons and the public, and can not be questioned in this suit. Swepston v. Barton, 39 Ark. 549, 557; Holland v. Davies, 36 Ark. 446; McCrary on Elections (4 Ed.), § 251.
According to the .record in this court, the tax sale is valid.
Reversed and remanded with directions to the court to enter a decree in accordance with this opinion. | [
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Riddick, J.,
(after stating the facts). In his brief filed in this case counsel for appellant contends with much force that the chancellor erred in holding that the value of the stock of merchandise was only $1,509.16 and the value of the lease was only $100, and that he erred in holding that the defendant should be compelled to account only for those sums and the amount of cash on hand. But this judgment of the chancellor was rendered over a year before the appeal was taken, and we have therefore no right to disturb it. Kirby’s Digest, § 1199; Moore v. Henderson, 74 Ark. 181; Cooper v. Ryan, 73 Ark. 37.
It is true that the judgment confirming the report of the master was made less than a year before the appeal was taken, but this report only followed the decree, which adjudged and fixed the amount which the defendant was to be charged for the property. A decree which settles the rights of the parties and leaves nothing to the master but a statement of an account on a basis fixed by the decree is a final judgment. As no appeal was taken from this judgment within the time allowed by statute, it must on this appeal be treated as the law of the case, and, that being so, the subsequent decree confirming the report of the master made in obedience to the first decree can not be questioned. A report of the master is not subject to exceptions when it simply follows the decree directing the reference and makes a report based on finding contained in that decree,. for in such a case, if there be error, it is in the original decree, and not in the report of the master whose duty it was to obey the decree. Musgrove v. Lusk, 2 Tenn. Ch. 576; 17 Enc. Plead. & Prac. 1050.
Judgment affirmed. | [
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Battle, J.
This is a proceeding instituted before a justice of the peace, and taken by an appeal to the Arkansas Circuit Court, under an act, entitled “An act to suppress the illegal sale of liquors and to destroy the same when found in prohibited districts,” approved February 13, 1899. A barrel of whisky, containing forty-five gallons, and thirty-three pints in bottles or flasks was seized by the sheriff of Arkansas County. They were found in the possession' of John LaCotts in a prohibited district, and were alleged to be kept to be sold therein contrary to law. Notice was given to LaCotts that an application would be made on the first of August, 1905, to J. M. Rasco, a justice of peace of Arkansas County, for an order to destroy the same on the ground they had been shipped into the district to be sold contrary to law. John White and eleven others appeared before the justice and claimed the whisky, and that it was kept for their “individual use, and was not intended for sale or to be given away.” In the justice’s court the claimants recovered judgment, but on appeal to the circuit court, after a trial, judgment was rendered condemning the whisky to be destroyed; and claimants appealed.
Appellants contend that no appeal could be taken from the justice of the peace, the proceeding being criminal. The contention is not tenable. In Kirkland v. State, 72 Ark. 171, 105 Am. St. 25, it was held “that the proceeding prescribed by the act of February 13, 1899, is civil, and that a preponderance of the evidence is sufficient to sustain it.” The Constitution of the State provides that “appeals may be taken from the final judgments of the justices of the peace to the circuit courts under such regulations as are now, or may be, provided by law.” Art. 7, sec. 42. And the statute provides: ‘rAny person aggrieved by any judgment rendered by a justice of the peace, except a judgment of dismissal for want of prosecution, may in person or by his agent take his appeal therefrom to the circuit court.” Kirby’s Digest, §. 4665. So an appeal lay from the judgment of the justice of the peace to the circuit court.
Appellants argue that the evidence adduced in the trial was not sufficient to sustain the findings and judgment of the circuit court. The whisky was found and kept in a prohibited district. There is no controversy as to that fact. As to the purpose for which it was kept, the evidence is conflicting. There was sufficient evidence to sustain the finding of the court — that it was kept to be sold in the district contrary to law.
Judgment affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by Mrs. Estella C. Britton from a judgment of the Lonoke Circuit Court allotting her dower in the personal estate of her husband, J. M. Britton. Britton died leaving as heir a grandson but no surviving children, and the question as to whether his widow is entitled to one-half or one-third of the personal estate as her dower depends on the act of 1891, which is set out in the statement of facts.
Omitting, that part of it that refers to real estate, the part which refers to personal property reads as follows: “If a husband die leaving a widow and no children, such widow shall be endowed of * * * one-half of the personal estate, absolutely, and in her own right as against collateral heirs, but as against creditors she shall be endowed with * * * one-third of the personal property absolutely.” A consideration of this language shows that the provision that the widow shall be endowed of one-half of the personal property applies only as against collateral heirs. The statute does not apply where the husband leaves direct descendants. The effect of the statute, so far as this case is concerned, is the same as if the words “direct descendants” were substituted for the word “children” in the act, so that it would read: “If a husband die leaving a widow and no direct descendants,” etc.
We are therefore of the opinion that the court properly-held that the widow was entitled to only one-third of the personal property as dower, and the other property allowed by law in addition to dower.
Judgment affirmed. | [
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Hill, C. J.
Eli and Oliver Burnett, brothers, were jointly indicted in Scott Circuit Court for murder in the second degree, and Eli Burnett was convicted of involuntary manslaughter.
There was evidence to have justified a verdict of murder in the second degree, voluntary manslaughter or an acquittal, according to which version of the killing of Arie Smith be accepted as the truth, but not a scintilla of evidence of involuntary manslaughter, and no instruction should have been given on that subject. The error of the court in submitting that question has brought about a lower sentence for appellant than he otherwise could have received. Necessarily, the evidence justifying an acquittal was rejected when the jury found this verdict; and if they had not been erroneously authorized to have found this degree of homicide, he would have been convicted of a higher grade.
Appellant contends there was error in the trial court refusing to give three instructions requested by him, but the court is of opinion that so much of the refused instructions as is correct was covered by those given.
The principal contention of appellant is in the giving of these three instructions:
“If you find from the evidence beyond a reasonable doubt. • that Burnett killed Arie Smith while he, Burnett, was in the commission of an unlawful act without malice and without the means calculated to produce death, or if you find beyond a reasonable doubt that Oliver Burnett was in the prosecution of a lawful act done without due caution and circumspection, and you further find from the evidence beyond a reasonable doubt that the defendant, Eli Burnett, stood by, aided, abetted or assisted Oliver Burnett in taking the life of Arie Smith as defined in this instruction, then you should convict the defendant of involuntary manslaughter.”
“If you find from the evidence beyond a reasonable doubt that Eli Burnett stood by, aided, abetted or assisted Oliver Burnett in unlawfully taking the life of Arie Smith, then he would be guilty of some degree of felonious homicide as defined in these instructions, whether there was or was not a combination between the defendant and his brother, Oliver Burnett, to do an unlawful act ”
“If you find that there was no agreement or combination, as defined in these instructions, between Eli and Oliver Burnett to do an unlawful act, and you further find that Eli did not stand by, aid, abet or assist Oliver Burnett in unlawfully taking the life of Arie Smith, then Eli would not be responsible for the killing of Arie Smith.”'
The point is that in each of them a conviction was justified if appellant, “stood by, aided, abetted or assisted Oliver Burnett.”
These instructions are in the language of the statutes, sections 1560, 1561, 1563, Kirby’s Digest. These sections mean one who stands by and aids or abets or assists, and do not mean one who stands by or aids, or abets, or assists. Presence is necessary to constitute an accessory indictable and punishable as a principal— the same offense which was principal in the second degree at common law. Williams v. State, 41 Ark. 173. Appellant insists that, literally, these instructions mean that he could have been convicted if he merely stood by and. did not aid, abet or assist. It is not conceivable that the jury would have understood that they could convict a mere bystander who happened to be standing by when a felonious homicide was committed. The instruction would have been in better form if the court had put the word “and” in lieu of the comma after the words “stood by,” and the word “or” after “aided.” But, the court having used the exact language of the statute, which is reasonably clear, it devolved upon the appellant to point out this formal defect if he was not satisfied that the form of this instruction correctly presented the thought of it.
“If there was ambiguity calculated to mislead the jury, counsel for appellant should have made a specific objection to the instruction on that account. * * * The defect is one of form only, and a general objection is not sufficient to raise a question of that kind.” St. Louis, I. M. & S. Ry. Co. v. Pritchett, 66 Ark. 46, and St. Louis, I. M. & S. Ry. Co. v. Norton, 71 Ark. 314.
The appellant should have pointed out this defect by a specific objection. Darden v. State, 73 Ark. 316; Thomas v. State, 74 Ark. 431; St. Louis S. W. Ry. Co. v. Bowen, 73 Ark. 594; Brinkley Car Works, etc., v. Cooper, 75 Ark. 325; McElvaney v. Smith, 76 Ark. 468; Davis v. Richardson, 76 Ark. 348.
While there is error in the case, it is in appellant’s favor, and he seems to have fared better than he was entitled to under the law and evidence.
Judgment affirmed. | [
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Hill, C. J.
The appellee, T. J. Spurlock, sued appellant, Mary J. Spurlock, his wife, for divorce, alleging adultery with several parties. She denied all the charges against her, and made countercharge of cruel treatment, and asked that a divorce be granted her on that ground. She makes these allegations in pleadings and evidence in regard to their property interests: That she and her husband were engaged in the hotel and mercantile business at Evening Shade, and sold out there and re-invested in like enterprises at Mammoth Spring, Spurlock conducting the mercantile business and she the hotel business; that the first hotel burned, and Spurlock collected about $1,000 insurance, which he used in his grocery and other enterprises, and which did not go to her; that a mortgage to a building and loan association for $1,000 was placed on the property to pay for the rebuilding of the hotel; that she paid said mortgage herself, and her husband paid no part of it; that she purchased a lot of hogs and cattle and hotel furniture, and erected a sample room, all from her separate earnings. In general, she charged that she ran the hotel, earned all it made; that it was understood she had that business, and her husband the mercantile; that she supported both from the hotel business and helped him, and he did not help her; and in justice and equity should be the sole owner of the hotel property. On the other hand, Spurlock charges that he ran the business with her help in looking after .the servants when he was not there. The hotel was their home. Even after their separation, both lived there in separate rooms.
The chancellor granted the husband the divorce on grounds of adultery in the wife; found the hogs, cattle and hotel furniture and the sample room were the separate property of Mrs. Spurlock; found against her as to the hotel property; and she appeals; and Spurlock appeals from so much of the decree as finds any of the property to be Mrs. Spurlock’s.
1. The first question is as to the adultery charges against Mrs. Spurlock and the countercharge of cruel treatment against Mr. Spurlock.
The appellant objects to certain testimony tending to prove adultery after the suit was filed. The cause of divorce must exist before the commencement of the suit. Kirby’s Digest, § 2678. But her relations with this co-respondent were shown to have commenced before the suit, and evidence of adultery with him after the bringing of the suit would be admissible, not as a cause of divorce, but as tending to prove a lustful rather than innocent character to her relations with him prior to the suit. The chancellor found her guilty with him before the commencement of this action. The preponderance of the evidence is against Mrs. Spurlock on both these issues, and it would serve no useful purpose to review it, and the decree as to the divorce is affirmed.
2. The chancellor found that the hogs, cattle and hotel furniture and the sample room built on the hotel grounds were the separate property of Mrs. Spurlock, and the court is of opinion that the weight of the evidence sustains that finding, and the decree on that issue is affirmed on the cross-appeal.
3. Mrs. Spurlock claims that the hotel property was purchased with money derived from her separate business of hotel keeper before and after it was rebuilt; that no part of her husband’s means, earnings or services have acquired that property. Mr. Spurlock denies all of this, and it can not be said that the preponderance is with her, and the finding of the chancellor is against her on this. But as to this fact the preponderance of the evidence is decidedly with Mrs. Spurlock: That she ran the hotel as a separate business; that her husband was no more service to her in that business than she was to him in the grocery and mercantile business. Each was conducting a business enterprise on his or her own account; and she worked hard and with fair success in the hotel business, and from the proceeds of the hotel business the mortgage of $1,000 upon the hotel property was paid by her in monthly installments, except a balance of a few hundred dollars, and that she discharged with money borrowed from friends. While Mr. Spurlock denies most of these facts, yet Mrs. Spurlock is so strongly corroborated as to these matters that the court is convinced the above statement is the truth of the case. The question is, what are the equities on the facts above stated? It is a question of first impression in this State, and probably elsewhere, for most States have statutes giving the divorce courts discretion in dividing the property. The statute in-this State (Kirby’s Digest, § 2684), as construed in McNutt v. McNutt, 78 Ark. 346, does not reach to this case.
A married woman may carry on a business venture, and the earnings therefrom are her own. Kirby’s Digest, § 5214. A husband has such an interest from the marital relation in the wife’s homestead that he may invest his means in improving it, up to the maximum value, and the homestead character of the property will withdraw what he invests in it from the reach of his creditors. Pullen v. Simpson, 74 Ark. 592.
The right of subrogation to one paying a debt for another is extended to sureties, to junior incumbrancers, to creditors paying an incumbrance on their debtor’s property, 10 legatees and joint heirs relieving the inheritance of liens, to life tenants freeing the fee of a mortgage, to widows discharging debts against their husbands’ estates, and to many other analogous instances. Harris on Subrogation, § § 13, 14, 696-697. The theory is that the payment has been made by one occupying a relation to the property other than that of a stranger or volunteer, who, on account of such interest, discharges a mortgage or other lien against the property. Equity, to save an injustice being done, will subrogate the one discharging the mortgage 01 lien to the rights which the mortgagee or lienholder would have had if he (the payer) had not discharged the mortgage or lien. The Tennessee court applied this doctrine in favor of a deserted wife who had paid off a mortgage on an abandoned homegtead of the husband. Roach v. Hacker, 2 Lea, 633. And this application is approved by a learned writer on the subject. Harris on Subrogation, § 705.
Here the homestead which sheltered both the parties was incumbered. The wife’s earnings, which she could have invested elsewhere and retained beyond question as her own, she invested in the property which the law protected from the reach of creditors and gave to her as a home for life against heirs and creditors. Certainly, her interest was'as substantive as a life tenant’s or any of the other enumerated persons to whom subrogation has been accorded upon discharge of incumbrances against the property in which the interest inheres.
It is true that it is her own misconduct which has caused he severance of the marriage tie and the failing of these tangible rights inhering in the husband’s homestead. But it is inequitable for this misconduct to deprive her of the right of subrogation which equity accords to one protecting a property interest by discharging a lien upon the property. It would be contrary to good conscience for the husband to profit by the wife’s earnings discharging this mortgage on his property when she devoted them to that purpose, not as a gift to him, but to protect a property in which she had an interest hardly less complete than his own.
The court is of opinion that so much of the decree as denied appellant relief as to the hotel property shall be reversed, and the cause remanded, with directions to enter a decree subrogating her to the rights of the mortgagee whose mortgage she discharged, and it is so ordered. | [
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Battle, J.
R. S. Daughtry was indicted on the 28th of September, 1905, by the grand jury of Pulaski County for murder in the first degree, committed by killing Joe Sarlo, and was tried on the 5th of December, 1905, and convicted of murder in the second degree; and his punishment was assessed at fifteen years’ imprisonment in the penitentiary. He appealed to this court.
Appellant insists that the court erred in refusing to grant him a new trial :
1. Because W. L. McRaven, a member of the jury who tried him, was an incompetent juror, because some time before the trial and shortly after the killing he had a controversy with one B. D. Williams concerning the guilt or innocence of the appellant, in which McRaven declared, if he were on the jury to try Daughtry, he would hang him, and Williams replied that, if he were a member of it, he would hang the jury.
2. Because the jury that tried him was guilty of misconduct while viewing the scene of the killing.
1. The record fails to show what questions were asked McRaven when he was examined, before his acceptance as a member of the jury, touching his qualifications to serve as such. When the court heard appellant’s motion for a new trial, he testified that, in response to such questions, he had formed an opinion as to the guilt of the defendant, but that it was based upon newspaper reports, and that, if he had any opinion, it was based on such reports. Plis testimony was not contradicted by any other testimony. The judge of the court, who heard him testify, was the judge of the credibility and the weight to be attached to his testimony. The opinion formed or expressed on newspaper reports did not disqualify him as a juror. Hardin v. State, 66 Ark. 53; Taylor v. State, 72 Ark. 613.
And no reversible error was committed in the refusal to grant a new trial on account of McRaven being a member of the jury.
2. The misconduct of the jury while reviewing the scene of the crime was: One of the jurors went behind the bar, and another member stood upon the railing looking over (the killing was done in a saloon) and while in that position one of the jurors made a remark to the man behind the bar that he was a larger man than Joe Sarlo, the man who was killed. The man behind the bar was about six feet tall and weighed 200 pounds, while Sarlo was small. About the time the juror was behind the bar, and another was upon the rail, a juror said: “That is all we want to see. Come on,” or “That is all I want to see. Let’s go.” We are unable to see that the appellant was prejudiced by this conduct or these remarks. The undisputed facts show that appellant killed Sarlo by shooting him while behind the bar. The evidence does not show that the conduct of the jury was calculated to throw a single ray of light upon a disputed fact, or that the remark of the juror indicated his opinion, if he had any.
The evidence was sufficient to sustain the verdict.
Judgment affirmed. | [
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McCulloch, J.
Martin L. Banister was a member of the Ancient Order of United Workmen of the State of Arkansas, a fraternal insurance society, and the holder of a benefit certificate or policy of insurance on’ his life in the sum of $2,000, payable to his wife, Alice Banister. He died from a pistol shot wound, and. after payment was refused this action was brought by the beneficiary to recover the amount named in the certificate.
The application for membership, which became a part of the contract of insurance, contained the following clause: “I further agree that if, within two years after the date of my taking or receiving the said Workmen Degree, my death should occur by suicide, whether sane or insane except in delirium resulting from disease, or while under treatment for insanity or after judicial declaration of insanity, then the only sum which shall be paid, or which is payable to my beneficiaries named in my beneficiary certificate, shall be the amount which I may have paid into the beneficiary fund of the order during the term of my membership.”
Banister’s death occurred within two years after he became a member of the order, and payment of the benefit was refused on the alleged ground that he committed suicide. The contention of the beneficiary is that the death was the result of an accident, the cause of death being the only issue in the case, and the jury found in favor of the plaintiff.
Banister was a carpenter residing in the city of Little Rock, and was in poor health for some time before his death. He had no children; his immediate family consisting only of himself and his wife. He was a man of exemplary habits and morals, never used tobacco nor intoxicants of any kind, attended religious services regularly, and was industrious.
His wife (the plaintiff) related upon the witness stand the following circumstances attending his death, viz.:
“When he came home that night, he came in, and then went around to a little store, and got some crackers and oranges just before I put supper on. I fixed what I thought he would like to eat, and he ate his supper. He did not eat very much. He was sitting in the dining room while I was ironing in the kitchen. When I was through, I went in and was sitting down doing some darning, mending the flannels. He was through then with his figuring, and was sitting by the stove with his shoes off. He got up, and said. T am going to bed now.’ He got up and went in. I got up a little afterwards. I guess he had plenty of time to get undressed and in bed. He is a man that goes to sleep quickly. I sat there and darned quite a little bit. I then got up and went to the kitchen, and heard the gun, and exclaimed, “What in the world have you done, dear?” I thought he had knocked it (the pistol) out of the bed. He made no reply, and I got scared, and ran out the front door, and hollered, 'Help l help! Something terrible has sure happened!’ Mr. Davis came in with Mr. Engstroum. I went with them as far as the foot of the bed, and saw him take up the gun; then I lost consciousness.”
Other persons, who came in immediately, testified that they found him lying on the bed mortally wounded with a bullet hole through his right temple, and that he lived about three-quarters of an hour. He was dressed in his night gown, lying on his back with his head on the pillow, his right hand lying on top of the bed cover across his waist with his fingers nearly touching the pistol. The hair on the right side of his temple was slightly singed, and the bed sheet near the spot was powder burned.
It was also proved that Banister kept a pistol under his pillow all the time, that he was very nervous, was not a sound sleeper and would frequently wake up with a start as if frightened ; that he would often get out of bed to see if burglars were in the1 house, and sometimes he would take his pistol with him in getting up to investigate noises about the premises. There is no pro'of of any previous conduct or declarations on his part indicat ing a suicidal intention. On the contrary, one of his fellow workmen testified that when they quit work in the evening Banister said that if he was not at the appointed place on time the next morning it would be because he had gone after material; and only an hour before his death he talked over the telephone with a neighbor, asked the latter how he was getting along with building his house, and promised to go to see the house on the next Sunday.
The court permitted the defendant, over the objection of plaintiff, to introduce in evidence the verdict of the coroner’s jury finding that Martin L. Banister came to his death by suicide, and the court instructed the jury that said verdict might be considered as evidence of death by suicide.
The chief insistence of counsel for appellant as grounds for reversal is that the verdict is without evidence to support it, that the undisputed evidence shows that Banister came to his death by his own suicidal act, and that the trial court erred in not peremptorily instructing the jury to return a verdict in favor of the defendant..
It is conceded that Banister’s death was the result of a shot from a pistol held in his own hand. While no one saw him when the shot was fired, all the circumstances point with certainty to the conclusion that no other person could have fired the shot. The only disputed question is whether the shot was accidental or an act of intentional self-destruction. The burden of proving suicide was upon the defendant. It alleged that fact as a defense to the action, and must prove it, for until that fact is established liability of the defendant for the amount of the policy is clear.
There is no dispute about the facts which were susceptible of direct proof, but the case turns upon the conclusion to be drawn therefrom — whether or not they establish suicide indisputably. For if the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then they were properly submitted to the jury for determination. Judges should not, under that state of the case, substitute their judgment for that of the jury. St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549.
After careful consideration of the evidence we are of the opinion that this question was properly submitted to the jury, and that there was evidence sufficient to support the verdict. Con ceding that the theory of death by suicide finds more rational support in the facts established by direct proof than the theory of death by accident — that there is greater probability from the evidence that death resulted from a suicidal act than an accident —still we can not say that death by suicide is the only reasonable conclusion to be drawn from the evidence. The proof does not exclude with reasonable certainty death from accidental shooting, and, the burden being upon the defendant to establish the defense by proof, it was properly left to the jury to say whether or not it was a case of suicide.
In the first place, there is a presumption against suicide or death by any other unlawful act, and this presumption arises even where it is shown by proof that death was self-inflicted — it is presumed to have been accidental until the contrary is made to appear. This rule is founded upon the natural human instinct or inclination of self-preservation, which -renders self-destruction an improbability with a rational being. 19 Am. & Eng. Enc. Law, p. 77; Travellers’ Ins. Co. v. McConkey, 127 U. S. 661; Conn. Mut. Ins. Co. v. McWhirter, 73 Fed. 444; Stephenson v. Bankers’ Life Assn. (Wis), 79 N. W. 460; Leman v. Manhattan Ins. Co., 46 La. Ann. 1189, 15 So. 388; Home Benefit Assn. v. Sargent, 142 U. S. 691; Walcott v. Metropolitan Ins. Co., 64 Vt. 231; Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765; Supreme Council v. Brashears, 89 Md. 624.
This presumption is greatly strengthened in this case by proof as to the habits and character of deceased. He was sober, industrious and religiously inclined. He was married and lived happily with his wife, and had never, so far as the proof shows, said or done anything indicating a suicidal tendency, but on the contrary almost his last utterance expressed his plans to pursue the even tenor of his life. He went to bed, after preparing himself as usual for a night’s rest, and apparently fell asleep. There is not in the evidence the slightest indication of any preparation for death, and if he secretly harbored the intention of taking his own life he gave no intimation of it before death, nor left behind him any disclosure to kindred and friends. It is not impossible, nor even improbable, that the shooting was accidental. He had a self-acting revolver under his pillow which he always kept there. He was very nervous and excitable, wakeful and easily alarmed at night. He may have been suddenly aroused by some noise, grasped the pistol and in a half awakened state pulled the trigger as he drew the pistol from beneath the pillow. This is neither impossible nor improbable, though, as already stated, it may be more probable that the shooting occurred from design, and we do not, under those circumstances, feel justified in setting aside the conclusion reached by the jury and substituting our own as to the cause of death.
Decisions pro and con are brought to our attention — and they are numerous — in insurance cases somewhat similar to this where the only issue was as to the cause of death of the insured, and wherein the weight of evidence and the presumption against suicide are discussed by the courts, but they all turn upon the peculiar facts of each case. ■ None, so far as we discover, are in conflict with the controlling principles hereinbefore announced.
The case of Home Benefit Assn. v. Sargent, 142 U. S. 691, is strikingly like the case at bar upon the facts — even stronger .in favor of the insurance company— and fully sustains us in the conclusion here reached.
It is urged that the verdict of the coroner’s jury finding death by suicidal act was properly admitted in evidence, and made a prima facie case of death from that cause, which was not overcome by other evidence. It is also urged that the court erred in refusing to instruct the jury that the verdict of the coroner’s jury was .prima facie evidence of suicide. Inasmuch as the court permitted the introduction of the verdict of the coroner’s jury at the request of appellant, we find it unnecessary to decide whether or not it was proper to do so. Some of the authorities hold that it is competent evidence. 1 Greenleaf on Ev. (15 Ed.), sec. 556; Grand Lodge v. Wieting, 168 Ill. 408; Supreme Lodge v. Fletcher (Miss.), 29 So. 523; Metzradt v. Modern Brotherhood (Iowa), 84 N. W. 498. But the weight of authority at this day seems to be against the admissibility of such evidence in civil cases of this kind. 3 Wigmore, Ev. p. 2078; Memphis Ry. Co. v. Womack, 84 Ala. 149; Germania Ins. Co. v. Ross-Lewin, 24 Col. 43; Holister v. Cordero, 76 Cal. 649; Rowe v. Such, 134 Id. 573; Wasey v. Travellers’ Ins. Co., 126 Mich. 119; Cox v. Royal Tribe, 42 Ore. 365.
Without, however, passing upon the question of admissibility of the verdict of- the coroner’s jury as evidence of the cause of death, we have no hesitancy in holding that it does not necessarily make out a prima facie case of death from the cause stated in the verdict, but at most may be considered by the trial jury along with other testimony in the case. This was the ruling of the court below, and it was as favorable to appellant in this respect as we could approve.
Other assignments are made by appellant of errors of the trial court in admitting evidence of deceased’s habits and statements with reference to keeping a pistol under his pillow and his reasons for doing, but we find no prejudicial error in the record.
The judgment affirmed. | [
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Battle, J.
This action was brought by J. J. Cash against the Kansas City Southern Railway Company to recover the value of a horse of plaintiff killed on the track of the defendant by one of its trains. Plaintiff recovered judgment, and the defendant appealed.
It was shown by the evidence that the horse was the property of the plaintiff, and was killed by a train of appellant on its track; and that the track was straight for three-quarters of a mile at the place it was killed, and there was nothing to obstruct the view. A. D. Bateman, the engineer in charge of the engine of the train that -killed the horse, testified that the horse was about one hundred feet from the train and about fifty feet from the track when he first saw it, and was traveling towards the track; that his train was going 35 miles an hour; that in his efforts to stop the train he only slowed it up to about 30 miles an hour; that when he first discovered the horse his engine was about 75 or 80 feet from the point where it was struck, and that when it got on the track it was so close that when it turned around to run it was struck; that it was impossible to stop the train from the time the horse came into view until it was hit; that the killing occurred between 11 and 12 o’clock at night; and it was ■impossible to see -the horse any further than the 100 feet.
' The law presumed that the horse was killed through and on account of- the negligence of appellant, and it devolved upon the railroad company to remove that presumption. It attempted to do so by the testimony of the engineer in charge of the engine ..of the train that did the killing and failed. The jury were the judges of his credibility and the weight of his testimony, and they did not believe him. They evidently did not believe that the horse could travel fifty feet and get on the track and turn round before the engine could go eighty feet at 35 miles an hour. They had reasons for disbelieving him.
Judgment affirmed. | [
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Battle, J.
On the 18th day of February, 1902, M. C. Manning, the widow of Richard Hood, deceased, now the wife of T. P. Manning, brought this action, in the Yell Circuit Court, on its law docket against Joseph H. Howard, G. W. Sturdevant, B. H. Burnett D. E. Roberts, P. M. Smith, James H. Choate, John Satterfield, John McCray, H. A. Carter and J. H. Harris, alleging that Howard was elected sheriff of Yell County; that, on the 30th day of October, 1890, he was commissioned as such sheriff by the Governor of this State, and entered upon the discharge of his duties as such officer; and that, before entering upon the discharge of such duties, he entered into bond to the State of Arkansas, in the sum of $10,000, conditioned that he would faithfully discharge and perform the duties of that office, with his codefendants as sureties thereon. And alleged that Howard, as such sheriff, was on the second day of April, 1891, appointed public administrator of the estate of Richard Hood, deceased; that he accepted the appointment, and took possession of the estate; that, at the July, 1900, term of the probate court of Yell County, for the Danville District', upon final settlement with plaintiff, upon due notice, he, being present and participating, was found 'to be indebted to plaintiff in the sum of $1,121.25 for balance due her on account of dower in the estate; that the probate court at said term ordered him as such administrator to pay her $500 as a part of such balance, and at its October, 1900, term ordered him to pay to her $621.25, the remainder thereof; and that lie wholly failed to pay any part of either of such orders; and asked for judgment against the defendants on their bond for the sum of $1,121.25 and interest thereon.
The defendants answered and admitted that the orders to the defendant Howard, as administrator, to pay $500 and $621.25, to plaintiff, were made by the Yell Probate Court, but were’made without notice to Howard, as such administrator; and alleged that, in ascertaining the amount due her for dower, Howard was charged with assets of the estate, amounting in the aggregate to $1,868.71, which he never received, and that she received of such assets in the aggregate $924.90, for which she never accounted; and alleged that Howard, when appointed administrator, was required to and did execute a bond for the faithful performance of his duties as such administrator in the sum of $7,000, with M. C. Hood, who is the plaintiff, J. J. Robertson, J. A. Hood, James G. Ray, T. F. Howard, W. M. Howard and D. W. Hames as sureties thereon which was approved; and that the sureties thereon are primarily liable for any defalcation or delinquency of the administrator; and asked that the sureties on the administrator’s bond be made parties defendants to this action; that this cause be transferred to the equity docket of the Yell Circuit Court; and that, upon final hearing, the sureties on the administrator’s bond be held primarily liable for any sum the court may find due the plaintiff.
The cause was transferred to the equity docket. The record shows that the sureties on the administrator’s bond were made defendants and duly summoned, but fails to show that they filed an answer or other pleading. Howard, the administrator, having died, W. F. Briggs was appointed his special administrator in this cause.
On the second day of January, 1905, John M. Satterfield. assignee of J. H. Hood, 'Alex Hood, J. R. Finch, Thos. Finch, Nannie Harris, Emma Hooper, Margurette Ray; Dick Hood John Hood, Charles Hood, Rube Hood, Mrs. Bruce Wallace, Jessie Hood, Nathan Hood, Emma Blalock and J. A. Hood, heirs of the late Richard Hood, deceased, filed a cross-complaint against the plaintiff, J. H. Howard, as administrator of Richard Hood, deceased, B. H. Burnett, J. H. McCray, Dave Roberts, G. W. Sturdevant, P. M. Strait, J. H. Plarris and James H. Choate, containing substantially the same allegations as to assets wrongly charged to Howard, as administrator, and as to assets converted by plaintiff, as contained in the answer of the defendants, and asking that the orders of the probate court directing that dower be paid to plaintiff be set aside for fraud, and that an account of the amount received by thé administrator and the amount due plaintiff be taken, and for judgment against her “for any sums she is found to have received in excess of the amount due her as dower,” and other relief.
Plaintiff filed an answer and response to the answer of the defendants and cross-complaint of assignee of heirs, in which she denied that the orders for dower were procured by fraud, and alleged that the matters set up in defense and bar of her action were res judicatae by the probate court in the proceedings in which the orders were obtained.
This cause came on to be heard, and was heard by the Yell Chancery Court, and the court found that all the matters alleged in bar and defense in the defendant’s cross-complaint had been adjudicated by the Yell Probate Court; that the sureties on the two 'bonds of Howard, as sheriff, and as administrator, were co-sureties, and each is liable for the misconduct or. default of Howard, as administrator of Richard Hood, deceased; that the Yell Probate Court for the Danville District made the orders directing Howard, as such administrator, to pay to the plaintiff the respective sums of $500 and $621.25; that he had failed to do so; that plaintiff,- then M. C. Hood, did sign and become surety on the bond of Ploward, as such adminsistrator, and as such surety is liable for one-fifteenth of the amount recoverable in. this suit upon the two , bonds, and can recover only fourteen-fifteenths of such amount; rendered a decree in her favor against certain of the defendants, naming them, for $1,046.50 for her debt, and $263.94, for damages, and for interest and costs. The defendants appealed.
The defendants attack the orders for the payment of dower to, appellee upon the ground that no notice that an application to the probate court for dower would be made by appellee was given to the administrator. The record fails to sustain this contention, and does not show that it was or was not given, and in that respect is silent. But appellants say the record shows that the application for the last or second order for dower was filed and the order was made on the same day, and that it, therefore, shows that no notice could have been given after the filing of the application. This may be true, and still the order be valid. The notice .might have been given before the application was filed that it would be made at the time of the filing. When letters of administration were granted upon the estate of Hood, it passed into the jurisdiction of the Yell Probate Court, and the administration and administrator thereof became subject to the control and supervision of that court (Sturdy v. Jacoway, 19 Ark. 499, 515), and notice of the application could have been given as well before as after it was filed. This is in accordance with the practice in probate courts as regulated by statutes in other cases. When claims or demands against an estate have been disallowed by an administrator, notice of its presentation to the court may be given before it is filed, and notice of an application to the probate court for an order to sell lands of a deceased person may be given before the application is filed. This seems necessarily to follow the fact that the estate is airead)' in the jurisdiction of the probate court, and the administrator is subject to his order and control in the administration thereof.
The probate court being a court of superior jurisdiction and its record being silent as to notice of the application, the presumption is that it was duly given. Borden v. State, 11 Ark. 519; Boyd v. Roane, 49 Ark. 397; Marks v. Matthews, 50 Ark. 338; McLain v. Duncan, 57 Ark. 53; McConnell v. Day, 61 Ark. 474; Clay v. Bilby, 72 Ark. 101, 107.
In adjudicating the appellee’s right to dower in the estate of Richard Hood, deceased, it was the duty of the probate court to ascertain the amount of the assets of the estate that were received by the administrator, and to credit the estate with all the assets converted by appellee to her own use. It was the duty of the defendant to set this conversion up as a defense. No reason is given why it was not done. The orders for dower, therefore, swept away all the defenses which appellants now seek to set up in bar of her right to recovery; “and this, too, for the purpose of every subsequent suit, whether founded on the same or a different cause.” Roth v. Merchants’ & Planters’ Bank, 70 Ark. 200, 203; Ellis v. Clarke, 19 Ark. 421; Bell v. Fergus, 55 Ark. 538; Davis v. Brown, 94 U. S. 423.
The adjudication of the probate court as to the amount of the liability of the administrator of Hood to appellee for dower is equally conclusive against his sureties in an action on his bonds. George v. Elms, 46 Ark. 260; Jones v. State, 14 Ark. 170; Wycough v. State, 50 Ark. 102; Bailey v. Gibson, 29 Ark. 472; State v. Wood, 51 Ark. 205.
The sureties on the bond of Howard as sheriff insist that the sureties on his administrator’s bond are primarily liable for his failure to perform the obligation of the latter bond, and in their answer in this suit, which is in the nature of a cross-complaint, ask that they be so held. This contention is correct. The statute provides: “When any property of any deceased person shall come into the hands of any public administrator, he shall enter into the like bond and security as is now or may hereafter be prescribed in cases of administrators in ordinary cases.” Kirby’s Digest, § 257. The General Assembly, in enacting this statute, evidently thought that the sheriff’s bond might not in all cases be sufficient to cover all the liabilities of the sheriff and public administrator, and to provide against any such deficiency required him to give a bond to specially protect those interested in any particular estate against losses occasioned by his failure to discharge his duties in respect thereto. Such bond, when filed, is like a special fund set apart for their protection and security; and in order to fully answer its purpose the sureties thereon must be primarily liable for any losses resulting from a failure to comply with its conditions: otherwise it might be entirely useless and unnecessary.
It follows that appellee must exhaust her remedies on the administrator’s bond, and, being a surety on that bond, she can have no recourse on the sheriff’s bond. If one of the sureties on the administrator’s bond should pay more than his part, he “has a right in equity to recover, as contribution from his solvent co-sureties on that bond, a pro rata amount of the sum paid by him, based upon the number of solvent co-sureties, and excluding the insolvent ones.” I Brandt’s Suretyship and Guaranty (3 Ed.), § 314, and cases cited; Stearns, Law of Suretyship, § 289.
Reversed and remanded for decree and proceedings consistent with this opinion. | [
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Steele Hays, Justice.
The primary question in this product liability case concerns the defendant-manufacturers’ impleader of third-party defendants under ARCP Rule 14, and what causes of action defendants — third-party plaintiffs can maintain against third-party defendants after the original plaintiffs have dismissed their claim against the defendants.
Gary and Nancy Howard sued Carpetland of Northwest Arkansas, Inc., and Philadelphia Carpet, Inc., appellants, (Carpetland) alleging that a carpet installed in their home was defective, in that orange-pink spots had appeared on the carpet throughout the house. Carpetland believed the spots were not caused by a defect in the carpet, but by benzoyl peroxide, a bleaching agent present in certain over-the-counter acne medications. Carpetland discovered that Clearasil, an acne medication containing benzoyl peroxide, had been used in the Howard home.
Armed with that information, in January 1988, Carpetland filed a third-party compliant against appellees, RichardsonVicks, and Personal Care Products Division, Inc., manufacturer of Clearasil, (Richardson-Vicks) under ARCP Rule 14, alleging that Richardson-Vicks were liable for all or part of the Howards’ claim against them. Carpetland amended the third-party complaint to include damages caused by other claims against them based on similar incidents. These claims are widely dispersed throughout the country and have been referred to by the parties as the “nationwide claim.”
In April 1988, the Howards executed a release for $1,000, releasing Carpetland, Philadelphia Carpet, Richardson-Vicks and Personal Care Products from all liability. On April 22,1988, the trial court granted an oral motion to dismiss the Howard complaint with prejudice.
Richardson-Vicks then moved for summary judgment against Carpetland on the theory that Carpetland no longer had a claim based on indemnity. Carpetland resisted, contending the nation-wide claim against Richardson-Vicks and Personal Care Products still existed and that they had incurred attorneys fees, costs and loss of goodwill in the Howard case, for which Richardson-Vicks should indemnify them.
A hearing was held and the trial court dismissed the third-party complaint in its entirety on the premise that Carpetland had made a voluntary settlement with the Howards which extinguished any claim Carpetland might then have based on indemnity. On appeal, Carpetland argues two points: the trial court erred by dismissing the claim for damages incurred in connection with the Howards’ action and by dismissing the claim based on the nationwide losses.
With respect to the Howard claim, the trial court found that because Carpetland had voluntarily settled with the Howards, they were not entitled to indemnification. Larson Machine, et al. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). Carpetland does not dispute the court’s finding that their actions were voluntary, but they do object to the legal conclusion of the trial court attendant on this finding. We cannot sustain the argument.
Larson states that the theory of indemnity is based on “equitable principles of restitution which permit one who is compelled to pay money, which in justice ought to be paid by another, to recover the sums so paid. . . .”
It is a general rule of law that the indemnitee on an implied covenant for indemnity against loss or damage cannot recover from the indemnitor upon a mere showing that the indemnitee had incurred liability, but he must show that he has suffered actual loss by payment or satisfaction of a judgment or by other payment under compulsion. [Our emphasis].
That is generally correct, but it must be noted that “compulsion” to pay is not confined to a judgment or court order:
Indemnity against losses does not cover losses for which the indemnitee is not liable to a third person, and which he improperly pays. But a person legally liable for damages who is entitled to indemnity may settle the claim and recover over against the indemnitor, even though he has not been compelled by judgment to pay the loss. The fact of voluntary payment does not negative the right to indemnity since a person confronted with an obligation that he cannot legally resist is not obligated to wait to be sued and to lose a reasonable opportunity for compromise. Such recovery is subject to proof of liability and the reasonableness of the amount of the settlement. 41 Am. Jur. 2d Indemnity, § 33 (1968).
And it is also stated in Morrissette v. Sears Roebuck & Co., 322 A.2d 7 (N.H. 1974):
While a prejudgment payment in settlement does not extinguish a right of indemnity [citation omitted], the third-party plaintiff must show that the settlement was made under legal compulsion, rather than as a mere volunteer. . . .
Carpetland has made no showing in this regard. Thus, Carpetland’s exposure to a judgment, the advisability of reaching a settlement, or the reasonableness of the amount are not matters of record. Consequently, the trial court was correct in finding Carpetland acted voluntarily and that the claim of the Howards, and any costs as a result of that claim, were extinguished as a matter of indemnity as between Carpetland and RichardsonVicks.
As to the claim based on nationwide losses, the basis for the dismissal with prejudice is not stated in the trial court’s letter opinion. At the hearing, the trial court gave two reasons for dismissing the nationwide claim. The first was that ARCP Rule 14 does not allow extended claims, and second, even if it did, the nationwide claim was too unwieldy and inconvenient for that court to manage. The trial court’s letter opinion is not explicit, merely noting that:
As I indicated over a year ago, it is my intention to dismiss the nationwide claims by Carpetland and Philadelphia Land Carpet Division of Shaw Industries.
We are not aware of any cases of our own touching on whether Rule 14 would allow expanded claims against a third-party defendant, so we have looked to the nearly identical federal rule for guidance. While Rule 14 requires that the claims be against a party secondarily liable to the defendant and be based on defendant’s liability to plaintifff, Rule 14 must be construed in conjunction with the other rules to give as much effect as possible. C. Wright, A. Miller and M. Kane, Federal Practice & Procedure: Civil 2d § 1442 (1990). In this case, it must be read in conjunction with Rule 18 and Rule 42. Rule 18 reads: “A party asserting a claim for relief as any original claim, counterclaim, cross-claim, or third-party claim may join either as independent or as alternate claims, as many claims as he may have against an opposing party, provided, that nothing herein shall affect the obligation of a party under Rule 13(a) [Compulsory counterclaims].” See Wright, supra § 1452.
Wright concludes a trial court should, under the rules, allow joinder of claims such as those in the cases before us, even if brought in under Rule 14. However, that is not the end of Wright’s analysis:
Once a court has determined that a proper third-party claim has been asserted, it should allow joinder of any other claims the third-party plaintiff may have against the third-party defendant. . . .
It also should be noted that Rule 18 deals only with the permissibility of joining additional claims to third-party claims under Rule 14. As the Advisory Committee commented in its Note to the 1966 amendment to Rule 18: ‘A claim properly joined as a matter of pleading need not be proceeded together with other claims if fairness or convenience justifies separate treatment. ’ Therefore, separate trials or severance still are available when proper. W right, supra, § 1452. [Our emphasis].
Whether the trial court chooses to hear all the claims together, or orders severance under Rule 42, is largely discretionary. Discussing the relationship between Rule 18(a) and Rule 42(b), Wright states:
The 1966 amendment eliminated any confusion on the point, and it now should be clear that the court actually had no discretion to determine what claims a party may or may not join in his pleading. As a practical matter however, Rule 18(a) must be read in conjunction with the practice under Rule 42(b), which gives the court extensive discretionary power to order separate trials of claims or issues. [Our emphasis]. Wright, supra, § 1586.
We believe the trial court was mistaken in its finding that it was not allowed to expand Rule 14 to the extent Carpetland proposed, adverting to unwieldiness and inconvenience. Nor do we find a basis in the record for the dismissal of the nationwide claim with prejudice. Under Rule 18, the trial court may sever causes at its discretion but may not dismiss them. If the trial court had in mind the doctrine of forum non conveniens, Ark. Code Ann. § 19-4-101E (1987), that, too, would be erroneous, except upon a showing of factors wholly absent from this record. Country Pride Foods, Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983). If the assumption was that ARCP Rule 14 gave the trial court discretion to hear or not to hear claims against third-parties, that is not correct, it could hear the claims or sever them.
Appellants have raised one further point. Following the hearing on the dismissal of Carpetland’s third-party complaint, they moved for ARCP Rule 11 sanctions against RichardsonVicks on a number of grounds. In response, Richardson-Vicks essentially denied the allegations and sought sanctions on their own behalf. No hearing or further motions were taken on the issue of sanctions and we find no mention in the record of a ruling on the motions for sanctions.
We have held many times that the burden of obtaining a ruling is on the movant. Objections and matters left unresolved are waived and may not be relied upon on appeal. McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989); Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 789 S.W.2d 543 (1989); Richardson v. State, 292 Ark. 140, 728 S.W.2d 510 (1987); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). Here, not only did appellants fail to get a ruling, they failed to request or pursue a hearing which would have been necessary in order to resolve the factual issues on the sanctions claims. See Brattonv. Gunn, 200 Ark. 1409, 777 S.W.2d 219 (1989). There is nothing on appeal for us to review in this case, and the question is waived.
Affirmed in part, reversed in part and remanded.
Corbin and Brown, JJ., not participating. | [
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Robert H. Dudley, Justice.
Plaintiff, Patsy Garrett, as administratrix of her mother’s estate, filed suit against defendant, Jefferson Hospital Association, Inc., and its insurer, defendant, St. Paul Fire & Marine Insurance Company. The complaint alleged the hospital was negligent in leaving the decedent unattended on a bedside commode, and that negligence resulted in a fall which was the proximate cause of her death. The complaint sought damages for the decedent’s medical and funeral expenses, conscious pain and suffering, mental anguish, and loss of consortium. The case was tried to a jury. At the close of the plaintiff’s case, the defendants did not move for a full directed verdict, instead, they moved for a partial directed verdict and argued that the decedent’s survivors did not present evidence of more than normal grief. At the close of all of the evidence they renewed their motion for a partial directed verdict. The jury returned a plaintiff’s general verdict in the amount of $180,000.00. The defendants appeal, and in their first point of appeal argue that the trial court erred in refusing to grant their motion for a partial directed verdict.
Procedurally, it is not necessary for us to discuss the merits of the defendants’ argument. The plaintiff proved that the estate had medical and funeral expenses; the surviving husband suffered a loss of consortium; and the decedent had conscious pain and suffering. These elements of damage were independent of the mental anguish suffered by the survivors. The case was submitted to the jury on a general verdict rather than on interrogatories. See ARCP Rule 49(a). Consequently, we do not know, and will not assume, that the jury awarded any damages for the mental anguish of the survivors. Therefore, even if the defendants were correct in their legal arguments we would not reverse this case. However, the defendants also are in error on their legal arguments. In order to address their legal arguments we first set out the facts.
Edith Crain, the decedent, was admitted to the defendant hospital on Thursday, July 18, 1985. There it was determined that she had an arrhythmic heartbeat which necessitated the immediate implantation of a temporary pacemaker. A permanent pacemaker was inserted the next day. She progressed well after the surgery, and was expecting to return home on Monday, July 22. On Sunday, July 21, members of her family stayed with her until approximately 10:00 p.m. Very early the next morning she signaled the nurses with her call light because she needed to use the bedside commode. The nurse responding to the call helped Mrs. Crain get on the commode; told her she would wait outside until Mrs. Crain needed to get back in bed; received another request for help from a patient across the hall; went to check on the other patient; heard a noise; went back to Mrs. Crain’s room; and found her on the floor beside her bed. The nurses determined the extent of Mrs. Crain’s injuries and got her back to bed. (The defendants do not appeal the finding that they were negligent.)
At approximately 6:00 a.m. that same morning, Mrs. Crain’s son, Birt, Jr., arrived at her room. She reported her fall, and he saw that one side of her face was swollen and “completely black and blue.” The swelling and discoloration eventually progressed down the side of her neck. There was also a marked difference in her attitude and condition. She was discharged from the hospital on July 26, but she did not improve. In fact, her course went from bad to worse. She was lethargic and stayed in bed ninety percent of the time. On August 8,1985, she returned to the emergency room of the hospital. She was vomiting and “talking out of her head,” exclaiming “hold me, hold me.” She screamed every time she was touched. Subsequently, a neurosurgeon performed a cranial burr. It involved drilling holes in her skull in an attempt to drain fluid which might have accumulated. She could not move. She could not talk. She communicated by squeezing family members’ hands. She remained at appellant hospital until August 26 when she was moved to Baptist Medical Center in Little Rock. She died on October 9,1985, never having left Baptist Medical Center.
Defendants argue that the trial court erred in denying their motion for a partial directed verdict on the issue of mental anguish suffered by the decedent’s survivors. The argument has no merit.
In determining whether to grant a motion for directed verdict, the trial court must view the evidence, and all reasonable inferences derived from it, in the light most favorable to the party opposing to the motion. Grain Dealers Mut. Ins. Co. v. Porterfield, 287 Ark. 27, 695 S.W.2d 833 (1985). The evidence must be given its highest and strongest probative value, and the motion must be granted if the evidence is so lacking in substance that it would require a jury verdict to be set aside. Id. There was sufficient evidence here for the issue of mental anguish of the survivors to go to the jury.
Mental anguish means the mental suffering resulting from emotions such as grief and despair. It must be real and with cause and be more than the normal grief occasioned by the loss of a loved one. AMI Civil 3d, 2215. In Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986), we explained the difficulty that accompanies application of the mental anguish statutes to particular factual settings:
The General Assembly has clearly stated that the public policy of this State is to allow recovery for wrongful death and for the mental anguish of survivors of the deceased. . . . The application of the mental anguish statutes to particular fact situations has given us difficulty through the years simply because mental anguish of all survivors is a natural incident of practically every wrongful death. We have construed the statutes to mean that the proximity of relationship between the deceased and the survivors is the most significant factor in determining whether recovery is allowable. Distant relatives generally have no more than normal grief and will not be allowed to recover without establishing something more.
(Emphasis added.)
We have set forth thirteen factors which a jury may consider in evaluating the relationship between the deceased and the survivors. Martin v. Rieger, 289 Ark. at 296; St. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1986); AMI Civil 3d, 2215. It is not necessary to list all of them here. The survivors in the instant case are the deceased’s husband, Birt, Sr., and her two adult children, Birt, Jr. and Patsy. Birt, Sr., testified that he and the decedent were married for fifty-one years; she helped him in the fields; one year she brought in the whole crop when he was sick; she cooked, cleaned, ironed, and gardened for him; they never fussed; he stayed with her at the hospital, sleeping there many nights; and since she’s been gone, “everything is just blank.” Patsy testified that she saw her mother almost every day; they were very close; since the mother’s death, Patsy has had to have help from her pastor; and her doctor has also given her medication because she has been depressed and has trouble sleeping. Birt, Jr., testified that he lived with his parents until he got married in 1968, and that he subsequently moved behind their house; he visited with his mother every day; he experienced emotional problems after her death and has had many sleepless nights.
Clearly, at least four of the factors were established by this testimony: (1) there were strong familial and marital ties of affection; (2) there was frequent association and communication; (3) the attitude of decedent and survivors was loving and close; and (4) the survivor’s grief was intense. In short, there was substantial evidence in support of an award for mental anguish for any and all of the survivors, and the trial court was correct in refusing to direct a verdict on this claim.
The other point raised by defendants is that the jury’s verdict was excessive. It is well established that the jury has great discretion in determining the amount of damages in wrongful death cases, and we will not disturb their verdict unless it is shown to have been influenced by prejudice or passion, or it is so grossly excessive as to shock the conscience of the court. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986). Defendants have not established that the amount of the verdict was influenced by either passion or prejudice, and the amount of the verdict does not shock our conscience.
Affirmed.
Glaze, J., not participating. | [
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David Newbern, Justice.
On May 14, 1990, this court adopted rules of confidentiality applicable to the Arkansas Judicial Discipline and Disability Commission. In the Matter of Rules 7 and 9 of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, 302 Ark. 633, 790 S.W.2d 143 (1990). The commission had been operating under our order of May 8,1989, In the Matter of Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, 298 Ark. 654, 770 S.W.2d 116 (1989), and Act 637 of 1989. The 1990 order permitted greater disclosure, and the appellant, Gannett River States Publishing Company, sought disclosure, in accordance with the new rules, of commission actions which occurred before the new rules came into effect and which would have been protected from disclosure under the old rules and statute. The commission declined to furnish the information sought, and Gannett filed its claim pursuant to the Freedom of Information Act. Ark. Code Ann. §§ 25-19-101 through 25-19-107 (1987 and Supp. 1989).
The circuit court held in favor of the commission, concluding its opinion as follows:
Although the Supreme Court has now redefined the point at which a constitutional right of access should be recognized, it is this Court’s opinion that the Supreme Court did not intend and certainly did not clearly express an intention that its revised rules would disturb Commission actions taken in reliance on the earlier rules, or the judges’ interest in continued confidentiality of such actions. The revised rules giving full access accomplish a substantive change in Commission proceedings, with respect to both participants and the public, and should be given prospective operation only.
The Court further determines that the confidentiality provisions of the Supreme Court’s opinion of May 8,1989, constituted a specific exception to the Arkansas Freedom of Information Act (FQIA), and that plaintiff [Gannett] therefore has no right of access to the records in issue under the FOIA.
We affirm the judgment.
The commission .was created by Ark. Const, amend. 66. Section (f) of the amendment gave this court the duty of making procedural rules implementing the amendment. By Act 637 of 1989, § 9, the general assembly provided: “The Arkansas Supreme Court shall adopt rules with regard to all matters of commission operations and all disciplinary and disability proceedings and promulgate rules of procedure.” Ark. Code Ann. § 16-10-405 (Supp. 1989). Section 2.(g)(2) of Act 637 provided, in part: “All proceedings held prior to a determination of probable cause and the filing of formal charges shall be confidential.” Our order of May 8, 1989, promulgating procedural rules for the commission contained the following as Rule 7.: “No disclosure by the Commission, to be made pursuant to section 2.(g) of Act 637 of 1989, shall be permitted except in accordance with procedures approved by the Supreme Court and upon reasonable notice to any judge concerned.” It is clear that prior to our revision of the rules by our order of May 14,1990, disclosure of “proceedings held prior to a determination of probable cause and filing of formal charges” were to be held confidential.
In our order of May 14,1990, we did away with the “private reprimand” remedy which was previously available to the commission as a sanction to impose upon judges. In the new Rule 7. we provided for confidentiality of commission investigations and deliberations with respect to the conduct of judges, but in addition to declaring that any formal charges and formal proceedings would be open to the public, as well as the record of such a proceeding, we provided that “ [a] ny action taken by the Commission after investigation of a judge shall be communicated to the judge by letter which shall become public information.”
The ultimate issue in this case is whether the information sought is excepted from that which must be released under the FOIA by virtue of Ark. Code Ann. § 25-19-105(b)(8) (Supp. 1989) because it consists of “[documents which are protected from disclosure by . . . rule of court.” Resolution of that issue depends on whether the new rule applies to information compiled before the rule went into effect. If not, then the information which would not have been subject to disclosure prior to the adoption of the change remains that way.
' 1. Our intent (subjective)
Gannett’s first argument is that the intent of our May 14, 1990, order was to make all actions taken by the commission open to public disclosure even though the proceedings had taken place prior to the change in the rules. We are invited simply to say whether we intended the new rule on confidentiality to be retrospective or not. While Gannett cites no authority which would permit us to follow that course, we probably could do so. That, however, has been suggested by the leading treatise on statutory construction as “not... the course of legal history.” Rules of court are not interpreted by having the court say what the law “is.” Courts construe them using the same means, including canons of construction, as are used to construe statutes. N. Singer, 3A Sutherland Statutory Construction, § 67.10 (4th ed. 1986).
2. Retroactivity
Gannett contends there may be no issue of retroactivity here because the documents they seek exist, and the question is whether they are entitled to them now rather than whether they were entitled to them before we changed the confidentiality provision. We do not agree with that contention. A judge who may have been investigated and cleared of wrongdoing or privately reprimanded prior to the change in the rule had a right under the former Rule 7. and Act 637 not to have the commission’s action disclosed. Only by applying the current Rule 7. can it be said that disclosure must be made.
The adjective “retroactive” has several definitions, one of which is simply that which acts upon a thing which is past. See Black’s Law Dictionary, p. 1184 (5th ed. 1979), definition of “retroactive law,” citing Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex. Civ. App. 1975).
Another definition of “retroactive law” is one which has the effect of disturbing a vested right. See Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962); State v. Kansas City & M. Ry. & B. Co., 117 Ark. 606, 174 S.W.248 (1915); William Bros. Lumber Co. v. Anderson, 210 Ga. 198, 78 S.E.2d 612 (1953); Pepin v. Beaulieu, 151 A.2d 230 (N.H. 1959); Silver King Coalition Mines Co. v. Industrial Comm’n., 2 Utah 2d 1, 268 P.2d 689 (1954).
To declare that the records held by the commission of its actions which were protected under the former rule are to be released under the new rule would have an effect on antecedent rights of those judges who may have been investigated and cleared or reprimanded under the assumption that the nondisclosure rule applied. That would be retroactive application under either definition.
3. Our intent (objective)
We have recognized “[t] he established rule . . .that all statutes are to be construed as having only a prospective operation, unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used.” State v. Kansas City & M. Ry. & B. Co., supra. The rule of prospectivity applies unless the intent that the law be retroactive “be the unequivocal and inflexible import of the terms and the manifest intention of the legislature.” United States v. Security Industrial Bank, 459 U.S. 70 (1982). As stated above, court rules are to be applied in the same manner.
Nothing in the new Rule 7. suggests in any way that its application will be retroactive. Applying the general rule of prospectivity which governs interpretation of statutes, we conclude that the application of the May 14,1990, version of Rule 7. is prospective, and thus the commission is not required to divulge its actions prior to that time which were protected under the former rule and statute.
Affirmed.
Glaze, J., concurs.
Hays, J., dissents. | [
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Robert L. Brown, Justice.
This case involves the legality of a cash bond forfeiture ordered by the trial court for failure of appellants to appear at trial. Appellants Miranda, Guzman, and Figueroa were each charged on November 3,1989, with theft of property over $2,500. Individual bond was set in the amount of $10,000, and each appellant posted a cash bond in that amount. The municipal judge set November 27,1989, as the trial date, and on that date appellants failed to appear for trial. The trial court ordered the immediate forfeiture of the three bonds.
On March 9,1990, defendants filed a motion to set aside the court’s order to forfeit the bonds due to lack of compliance with Arkansas statutes which, according to appellants’ theory, require an order of the court setting a show-cause hearing not less than ninety days from the date of the order. The trial court held a hearing on April 9, 1990, on the motion for reinstatement of the bonds, and the appellants again failed to appear at the hearing. The trial court denied the motion and in that order directed the appellants to appear for a show-cause hearing on May 30, 1990. The hearing was held on May 30, 1990, and defense counsel presented for the first time two death certificates purporting to evidence the deaths of appellants Guzman and Figueroa on February 28, 1990. Neither document contained certification of the genuineness of the signatures. (The documents were presumably introduced to support a defense to the bond forfeiture.) The trial court denied the admission of the two death certificates and again refused to reinstate the cash bond money which previously had been forfeited.
Appellants filed a petition for writ of mandamus and prohibition in this court on May 21, 1990, to compel the trial court to set aside the bond forfeiture and to require proper notice prior to conducting a show-cause hearing on the forfeiture. That petition was denied by this court without prejudice to appellants’ right to appeal on May 29, 1990.
Appellants now assert on appeal: 1) that the trial court erred in failing to reinstate the bond forfeiture; and 2) that the trial court erred in refusing to admit the two death certificates into evidence. We affirm the trial court’s decision.
For their first argument appellants rely on an Arkansas statute which requires the trial court to order a show-cause hearing on a potential bond forfeiture not less than ninety days after the issuance of the order. See Ark. Code Ann. § 16-84-201 (Supp. 1989). Appellants, however, misread that statute. The statute reads:
(a) If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and shall issue an order requiring the surety to appear, on a date set by the court not less than ninety (90) days nor more than one hundred twenty (120) days after the issuance of the order, to show cause why the sum specified in the bail bond or the money deposited in lieu of bail should not be forfeited.
Id. (Emphasis ours.)'
According to the specific language of the statute, it is the surety, or bail bondsman, who undertakes the obligation and who is entitled to the order setting the show-cause hearing, not the defendants/appellants. In addition to the clear language of the statute, the court of appeals interpreted a similar Arkansas statute in 1984 which required summons to be issued against unspecified individuals requiring “them” to appear within twenty days to show cause why judgment shall not be rendered against them for the sum specified in the bail bond. See Flynn v. Greene County, 12 Ark. App. 386, 676 S.W.2d 766 (1984); see also Ark. Stat.Ann. §43-727 (Repl. 1977), now codified at Ark. Code Ann. § 16-84-203 (1987). As in this case, the appellant in Flynn contended that his cash bond was forfeited before he was given twenty days notice. One issue concerned to whom notice was to be given — the bail bondsman or the defendant. In answering appellant’s argument, the court said:
The summons required by § 43-727 is intended to inform those who post bail for others that unless they produce the defendant within twenty days (who has, of course, already forfeited his bail by his own nonappearance), they will be liable for the defendant’s bail.
Appellant’s interpretation of the requirement of notice of a show cause hearing would produce results unintended by the Arkansas General Assembly. According to appellant, the purpose of the statute is to require the State to notify defendants who posted their own bail but did appear in court that they must return to court to show cause why judgment should not be rendered against them for the bail. Such defendants are of two types: (1) those who never intend to make it to the court on time - that is, those who “jump” bail, and (2) those who truly intend to appear in court but cannot for some reason. The first group, those who forego their day in court, forfeit their bail when they fail to appear and by operation of § 43-723 judgment is automatically entered against them. Obviously, § 43-727 is not intended to protect them. The second group, those defendants who in good faith intend to make their court appearances, will undoubtedly explain their absences to the court without a reminder from the State that they need to do so.
Flynn v. Greene County, 12 Ark. App. 386, 390, 676 S.W.2d 766, 768 (1984). The Flynn reasoning applies with equal cogency to the facts of this case.
For the foregoing reasons, the appellants’ first point on appeal has no merit.
Appellants further contend that the trial court erred in not admitting into evidence the alleged foreign death certificates of appellants Guzman and Figueroa. In light of our decision affirming the trial court’s order not to reinstate the bond forfeiture, it is not necessary to reach this issue, especially since the deaths allegedly occurred on February 28, 1990 — some three months after appellants’ failure to appear at trial on November 27,1989. The trial court, nevertheless, was correct in refusing the death certificates, because they were not properly authenticated as required under A.R.E. Rule 902(3). In addition to the formal deficiency, the defense counsel confronted the prosecuting attorney with the death certificates on the morning of the hearing on May 30, 1990, and because of this the prosecutor did not have reasonable opportunity to investigate the authenticity of the documents as required under Rule 902(3).
The decision of the trial court is therefore affirmed.
Affirmed. | [
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David Newbern, Justice.
Raymond L. Donathan, the appellant, sued the appellees, Guy McDill and Hot Springs Title Co., of which McDill was president, for tortious interference with a business expectancy. Summary judgment was granted to McDill and the company essentially on the ground that Donathan’s expectancy was subject to a contingency, and the fact that McDill’s actions brought about the contingency did not constitute tortious conduct on his part. The summary judgment is affirmed.
Donathan hired Hot Springs Title Co. to research the title to a parcel of land he wished to buy. Donathan was informed by the company that the land was soon to be sold for nonpayment of taxes. At the tax sale, Donathan and McDill both bid on the land, and Donathan’s bid of $2,800 was accepted. Delinquent taxes were approximately $300, and the land was worth $15,000 to $20,000.
After the sale, McDill informed the executor of the estate which owned the land about the sale and the estate’s right to redeem the land by payment of all taxes due within 30 days of the date of the sale. See Ark. Code Ann. § 26-37-202(e). (Supp. 1989). McDill was authorized by the executor to redeem the land on behalf of the estate. He did so using his own money channelled through an account of the Hot Springs Title Co. McDill then began negotiations with the estate to purchase the property.
Donathan, probably correctly, did not allege a fiduciary relationship. His action was based solely on the tort of interference with a business expectancy. We have recognized the tort. Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984); Walt Bennett Ford, Inc. v. Pulaski County Special School Dist., 274 Ark. 208, 624 S.W.2d 426 (1981). It consists of these elements: (1) a valid business expectancy (2) of which the defendants knew and (3) with which they intentionally interfered (4) causing a loss of the expectancy and (5) resulting damages.
Donathan’s business expectancy was to purchase the land in question for $2800 from the commissioner unless the owner made a timely redemption. His expectancy was fulfilled. No authority is cited holding, or even suggesting, that causing such a contingency as redemption to occur constitutes tortious interference.
While we understand and might agree with Donathan’s contention that some facts remain in dispute, we must agree with the trial court that none of them are material facts, given our conclusion that Donathan had no expectancy other than the one subject to the contingency which occurred.
Affirmed. | [
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Conley Byrd, Justice.
The issues in this appeal by appellant, Carl Widmer, against appellee, Apeo Oil Corporation, are identical, except for names of parties and amounts, with those in Carl Widmer v. Gibble Oil Company, 243 Ark. 735, 421 S. W. 2d 886, decided this date. The case is affirmed for the reasons therein stated. | [
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Lyle Brown, Justice.
We are here concerned with the custody of a four-year-old boy, Mark Edward Gann. The Sieberts, appellants here, obtained an interlocutory order of adoption. Mark’s mother (who had abandoned the child at birth) entered her- appearance in that proceeding and gave her consent. However, Josephine Benson, appellee, with whom Mark had resided continuously since birth, was not a party to the proceeding. A.few weeks after the adoption Mrs. Benson intervened in the probate court proceedings in protest. At the same time, she filed a petition for a writ of habeas corpus in the Chancery Court to regain immediate custody of Mark. Hon. Gene Bradley, as judge of the Probate Court and as judge of the Chancery Court, consolidated Mrs. Benson’s intervention and petition for writ of habeas corpus for trial purposes. The interlocutory order of adoption was set aside on jurisdictional grounds. Mrs. Benson was awarded custody of the child in the habeas corpus proceedings. The Sieberts have appealed from both orders.
Mark was born to Margaret Gann on January 13, 1963. She had been separated from her husband for the previous five years, although they lived in rather close proximity in Sharp County. During the latter stages of her pregnancy Margaret became ill, apparently from lack of medical attention. Mrs. Josephine Benson, who lived a few miles from Margarét, learned of Margaret’s condition and went to her aid. Mrs. Benson regularly received a government pension as a war widow; she re'-ceived monthly payments from the sale of a farm; and she owned .a home located on twenty-five acres on which she gardened and raised a modest amount of stock. Mrs. Benson obtained for Margaret immediate and competent medical attention at Imboden and Mark was borii there in a medical clinic. All expenses were paid by Mrs. Benson.
Margaret related to Mrs. Benson that the child was illegitimate; that she had the burden of two other children; and that she would not be able to properly care for the new baby. In her sense of gratitude to Mrs. Benson, who was without children at home, Margaret insisted that Mrs. Benson take the child as her own. She accepted the child and took it to her home on the day it was born. As soon as Margaret was able to travel she left for California and has since resided there. Mrs. Benson has once visited Margaret, taking Mark with her. The two women have corresponded intermittently since Mark’s birth,
Mrs. Benson has a married daughter residing in Memphis. In traveling from Sharp County to Memphis to visit her daughter, Mrs. Benson would travel through Jonesboro. There the Sieberts operated a nursery; On a return trip from Memphis late in October 1966, Mrs. Benson stopped at the nursery and purchased some fruit trees. Mr. Siebert was attracted to Mark ««and gave him a soda. The foursome — Mr. and Mys. Siebert, Mrs. Benson, and Mark — had a visit of some two . hours. The Sieberts have six children, all girls. Their ultramodern home is located at the nursery. In the course of the visit. Mrs. Benson related Mark’s history. There was conversation about the possibility of the Sieberts adopting Mark. The Sieberts testified Mrs. Benson was agreeable; Mrs. Benson denied it. She did agree that Mark could s;pend the night with the Sieberts. Mrs. Benson continued 'to her home in Sharp County and stayed overnight There she picked up a pony trailer and returned for Mark. They proceeded to Memphis to get the child’s pony.
The next day Mr. and Mrs. Siebert, after talking with their attorney, proceeded to Sharp County. There they obtained the name and address of Mark’s mother in California. A waiver and entry of appearance _was mailed her. When executed and returned, the instrument was to be filed in adoption proceedings in the Probate Court of Craighead County. Instead of returning the instrument to Sieberts’ attorney, Margaret Gann wrote Mrs. Benson that some parties in Jonesboro were trying to adopt Mark.
When an immediate reply was not received by the Sieberts, they contacted Margaret by telephone in California. As a result of that conversation Mr. Siebert wired her the .funds to fly to Memphis. There the Sie-berts met her and brought her to Jonesboro by automobile. She was agreeable to the adoption and executed the entry of appearance. That was November 3, 1966. On that same day Mrs. Benson and Mark were enroute. from Memphis to their home in Sharp County. As soon as Margaret Gann agreed to the adoption, Siebert scurried to Sharp County, expecting to find Mark and return him. to Jonesboro, Craighead County, where the adoption petition was to be filed the next day.
Mr. Siebert met Mrs. Benson a,nd her foster child on the highway near Hoxie, Lawrence County, and hailed them. Siebert explained that they were having a children’s party at the school that night; that he would like very much to take Mark to the party; that Mark could spend the night with the Sieberts and they would return him to Mrs. Benson the next day. He did not mention the adoption proceedings. Nor did he relate that Mark’s mother had been flown in from California. It was under those circumstances that Mrs. Benson permitted Mark to return with Siebert.
When Mrs. Benson completed her journey home, she found the letter Margaret Gann had written her from California, advising that someone in Jonesboro was trying to adopt the child. Mrs. Benson immediately set out for Jonesboro to get Mark. She first went to the school and found there was no party; she called the sheriff but she had no papers and he could be of no help; she rushed to the Siebert home; admittance was refused her; she forced a locked door, along with the doorframe, and entered; an altercation ensued; the sheriff was called; Mrs. Benson was advised that Mark’s mother had signed adoption papers and that she had best go home. To that request she conformed. It was past midnight.
Mrs. Benson returned to Jonesboro the next day. She interviewed the sheriff, an attorney, and a Catholic priest, all without success. While she was so engaged, the parties to the adoption were on their way to Blythe-ville, some fifty miles away, to present the adoption papers to the probate judge. The adoption was granted. Mrs. Benson had no knowledge of those proceedings.
Except for the Sieberts-Benson conversation about adoption, the facts we have thus far digested from a voluminous record may be said to be uncontroverted. The other pertinent facts relate to (1) Mrs. Benson’s execution, in the afternoon of November 4, of a “settlement” document which purported to give her consent to the adoption; and (2) the alleged unfitness of Mrs. Benson as the custodian of the child. Those matters are highly controverted. Some twenty witnesses testified and it is apparent that a number of them had opinionated feelings.
(1) Mrs. Benson’s Execution of the “Settlement” Document. Her interviews with others having proved fruitless, Mrs. Benson went to the office of Siebert’s attorney, who had returned from the trip' to Blytheville. There she reiterated her protest about the child being taken away from her. The attorney apprised her of the interlocutory order, showed her Margaret G-ann’s signature on the waiver, and advised her that in his opinion she could not regain possession of the child. Mrs. Benson explained her expenditures on the mother during and preceding Mark’s birth and indicated that she should be reimbursed. After conferring by telephone with Sie-bert, the attorney gave Mrs. Benson a check for $500. The attorney says she broached the subject of money; Mrs. Benson says the attorney suggested it. She executed an affidavit acknowledging receipt of the money and stated that she consented to the adoption which had already been granted.
The two witnesses disagree as ' to the purpose of Mrs. Benson’s trip to the attorney’s office. The attorney says it was primarily to obtain reimbursement. ‘ ‘ She was obviously moved and she cried some while in my office.” However, he quoted her as saying she thought the adoption was the best for Mark. Then, so he says, she broached the subject of reimbursement. The substance of Mrs. Benson’s extended testimony in that regard is that she had been completely frustrated in two hectic days of fruitless efforts; that she was exhausted, crying, and “so upset I couldn’t read” the affidavit; and that she would not have signed it except for the attorney’s assuring her that the adoption was completed and legal. (When Mrs. Benson filed her petitions she authorized her attorney to return the $500.)
In his oral opinion the trial judge stated that he accepted Mrs. Benson’s explanation “as to why she received the money.” It should be added that a consent to adoption may, under proper circumstances, be with drawn before the final order. Martin v. Ford, 224 Ark. 993, 277 S. W. 2d 842 (1955).
(2) The Fitness of Mrs. Benson to Have Custody of the Child. The Sieberts produced testimony that on at least three occasions Mrs. Benson initiated suggestions of adoption. Those statements were allegedly made to the Sieberts, Bob DePriest, and Mrs. Honeycutt (Mark’s grandmother). Mrs. Benson denied having made any such suggestions.-Mrs. Honeycutt’s testimony drips with prejudice. Mr. DePriest stated that the child was permitted to spend a few days in Ms home; at the end of three days Mrs. Benson came after him; adoption was discussed and Mrs. Benson declared she could not give up the boy.
Mrs. Honeycutt and Mrs. Gresike (Mrs. Honey-cutt’s employer) charged Mrs. Benson with the use of vulgarity and with “boarding men friends.” Each also testified as to an occasion when Mrs. Benson appeared to be under the influence of drugs or alcohol. Another testified as to Mrs. Benson’s irregularity in church attendance. Another witness from the Bureau of Vital Statistics produced records to show that Mrs. Benson had attempted to obtain a birth certificate for Mark and listed, herself as the mother of the child.
Mrs. Benson called three neighbors as witnesses. They described her as a. hard worker, a good housekeeper, attentive to Mark’s needs, and of good behavior. It, was testified that different men did, at various times, work for, and board with, Mrs. Benson. The neighbors saw no acts of misconduct.
The trial court described the attack on Mrs. Benson’s character as being based on “more or less innuendo.” The court 'commented on the absence of any testimony to' show that Mark “was ever exposed to any immoral matters.”
So much for the facts; The trial consumed several days and a four-hundred page transcript was accumulated, We have recited only those facts which are considered essential to an understanding and resolution of the issues. We now turn to particular rulings of the trial court, the three points advanced for reversal, and to a brief comment on one point raised by appellee.
1. The Sieberts contend the trial court should not have set aside the interlocutory order of adoption on jurisdictional grounds. The petition was filed November 4, 1966, and the order was entered on the same day. The probate judge held that on the date the petition was granted (a) the trial court had no jurisdiction.over the presumptive father, Franklin Grann, Jr., and (b) Mrs. Benson, who stood in loco parentis to the child, was not made a party, nor did she enter her appearance and give consent.
Ark. Stat. Ann. § 56-103 (1947) requires the petition for adoption to state the name of the person having custody of the one to be adopted. Mrs. Benson had physical custody of Mark from the day of his birth until the day before the petition for adoption was filed. That fact was well known to the Sieberts. They did not disclose it to the court. They gained possession of the child through concealment of a vital fact, namely that it was being obtained for the purpose of instituting adoption proceedings the following day. We hold that Mrs. Benson’s custody should have been revealed to the court and that she was entitled to notice. This court has held that one having custody of a child is so entitled. Miller v. Younger, 222 Ark. 663, 262 S. W. 2d 146 (1953). Although Mrs. Benson surrendered possession temporarily and under a concealment of fact, equity dictates that the manner of gaining possession should not sever her custody.
When the child was bom, Margaret Gl-ann had for seven years been the lawful wife of Franklin Gann. It is true they had been separated for some five years, living, however, in close proximity. The trial court found that the fact of separation did not destroy the strong legal presumption that Gann fathered this child. Thomas v. Barnett, 228 Ark. 658, 310 S. W. 2d 248 (1958). No competent proof of non-access appears in the record.
True it is that the interlocutory order of adoption recites that the child is illegitimate. However, the marriage status of Margaret and Franklin Gann was not made known to the court until the second hearing.
Summarizing, the trial court found that as of the date of the interlocutory order, Mrs. Benson stood in loco parentis, and that Gann was in law presumed to be the father of the child, making them necessary parties to the suit; and that their absence from the suit voided his jurisdiction. Since we conclude that Mrs. Benson was a necessary party to the proceedings, we do not reach the propriety of the ruling with respect to the presumptive father.
2. Appellants contend the chancery court erred in assuming jurisdiction of the habeas corpus proceeding. At the time Mrs. Benson applied for the writ of habeas corpus, the adoption proceedings were pending in the probate court and that forum, say appellants, could have afforded Mrs. Benson adequate relief.
A collateral attack upon an order of adoption, made by petition for writ of habeas corpus, is permissible. It is available to one in interest who was not made a party to the adoption proceedings. However, in the habeas corpus proceeding, the only appropriate inquiry is whether the probate court had jurisdiction to enter the order of adoption. Hughes v. Cain, 210 Ark. 476, 196 S. W. 2d 758 (1946).
Mrs. Benson had a clear right, by habeas corpus proceeding, to go into chancery court and seek to regain custody of the child which had been spirited away from her possession. The proceeding in probate was primarily one concerning adoption. It may well be that the probate court, in setting aside the adoption proceedings, might have eventually awarded some type of custody to Mrs. Benson. Yet the proceeding most certain to give her immediate custody of the child was habeas corpus. It is an extraordinary writ which demands the child be forthwith produced. The hearing is given priority. The identical procedure was followed in A. v. B., 217 Ark. 844, 233 S. W. 2d 629 (1950).
3. Appellants contend that the award of custody to Mrs. Benson was contrary to the greater weight of the evidence; that the court has placed the child in custody of one totally unfit to be so entrusted; and that the record clearly shows the best interest of the child would he served by placing him in the custody of Mr. and Mrs. iSiehert.
While it is axiomatic in custody cases that the welfare of the child is of prime importance, there are other considerations. Of one of those conditions, Justice Eakin had this to say in Verser v. Ford, 37 Ark. 27 (1881):
“It is one of the cardinal principles of nature and of law that, as against strangers, the father, however poor and humble, if able to support the child in his own style of life, and of good moral character, cannot, without the most shocking injustice, he deprived of the privilege by any one whatever, however brilliant the advantage he may offer. It is not enough to consider the interests of the child alone. ’ ’
As a foster mother, Mrs. Benson is in the category of being the only parent Mark Edward Gann has ever known; the Sieberts are in the category of strangers. Tlie mutual love that exists between Mrs. Benson and Mark is not questioned. To the contrary, the record is replete with evidence of their mutual devotion and constant companionship. Mrs. Benson called np sufficient physical strength to bodily knock in a locked door and its facing, which stood between her and the child she had nurtured from birth. Only love could have given her that extra strength.
Is Mrs. Benson morally fit to have the custody of Mark? The trial court answered that question in the affirmative. We are unable to say that he abused his- discretion. As recited, the evidence was highly conflicting. Some twenty witnesses testified and it is apparent that some of the key witnesses had preconceived opinions. In cases so fiercely contested the vantage point of the chancellor becomes all the more apparent. In no situation could the personal observations and judgment of the trial court be more valuable.
Appellee questions the right of the Sieberts to appeal from an order setting aside an interlocutory decree of adoption. Ark. Stat. Ann. § 56-111 (1947) is cited. The answer is that the Sieberts did not appeal from an interlocutory order but from a final order of January 12, 1967. That order was a final decree denying the prayer for adoption on the ground of lack of jurisdiction.
Affirmed.
That attorney withdrew from further participation as the Sie-berts’ attorney, presumably because he was to become a key witness in the resistance of Mrs. Benson’s intervention. | [
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George Rose Smith, Justice.
Charged with having had possession of goods which he knew to have been stolen, the appellant was found guilty and sentenced to three years imprisonment. Ark. Stat. Ann. § 41-3938 (Repl. 1964). For reversal he contends, first, that his admission of guilt was inadmissible and, second, that it was not sufficiently corroborated.
On January 3, 1967, police officers were investigating the burglary of a liquor store in Ouachita county. Acting upon information that the stolen whiskey was being sold in Columbia county the officers obtained a search warrant and searched Paschal’s home near Magnolia. They found two cases of whiskey, which were later identified as having been taken in the burglary. The officers arrested Paschal and took him to Camden, in Ouachita county, for questioning. There is no contention that Paschal was not duly warned of his constitutional rights before the interrogation began. According to the State’s testimony, Paschal readily admitted that he knew that the liquor had been stolen.
Counsel for the appellant, citing McNabb v. United States, 318 U. S. 332 (1943), insist that the confession was inadmissible because Paschal had not been taken before a magistrate for commitment, as the statute requires. Ark. Stat. Ann. § 43-601. The McNabb case, however, involved the interpretation of federal statutes that do not apply to the states. State v. Browning, 206 Ark. 791, 178 S. W. 2d 77 (1944). Under our statute the failure to take an arrested person before a magistrate does not vitiate a confession, because the statute is construed to be directory only. State v. Browning, supra; Moore v. State, 229 Ark. 335, 315 S. W. 2d 907 (1958).
Nor is there merit in the suggestion that the confession should have been excluded because Paschal was held in confinement for several days before he was charged with an offense. Such an illegal detention does not retroactively affect an admissible confession that was made soon after the initial arrest. United States v. Mitchell, 322 U. S. 65 (1944). This is true because the necessary causal connection between the detention and the confession is lacking.
Secondly, it is argued that the confession was inadmissible for the reason that it “embraced an element vital to the State’s case which was not corroborated.” The statute does not require that a confession be corroborated in every detail. It is enough that the confession be accompanied by other proof that the offense was committed. Ark. Stat. Ann. § 43-2115; Mouser v. State, 215 Ark. 131, 219 S. W. 2d 611 (1949). Not only did the State’s evidence show that the two cases of liquor were stolen property; the jury could have inferred from Paschal’s own testimony that he knew this to be true. He testified that he bought the two cases at less than the retail price, in a dry county from two men who were transporting the whiskey in an automobile. Thus there was ample proof to show that the offense was actually committed.
Affirmed. | [
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Steele Hays, Justice.
Appellee James Lingo was awarded a judgment of $3,422.09 against Razorback Cab of Fort Smith, Inc. and Joseph Vernon Johnson, for personal injuries sustained by Lingo as a result of being struck by Johnson, a cab driver for Razorback. On appeal Razorback has asserted a number of errors. We reverse for a new trial.
Shortly after midnight on February 29,1988, Joseph Johnson, driving a taxicab leased from Razorback Cab, picked up James Lingo and Gene Speakman. The two men had been drinking beer earlier at a Fort Smith tavern. Lingo and Speak-man lit cigarettes but when the other passengers objected Johnson asked them not to smoke. Lingo refused to put out his cigarette, though admittedly asked two or three times to do so. An argument developed between Lingo and Johnson and Johnson stopped the cab. Lingo and Johnson got out, arguing over whether Lingo should pay a partial fare. Lingo contends Johnson struck him unexpectedly. Johnson claims Lingo cursed him and swung first and missed. Johnson admits striking Lingo at that point.
James and Rita Lingo filed suit against Razorback and Johnson for some $420 in medical expenses and for compensatory and punitive damages. The jury rejected the claim of Rita Lingo and awarded only compensatory damages.
Over the objection of the defendants, the plaintiffs were permitted to introduce the complaint in evidence. Razorback charges the trial court with reversible error on this count and we sustain the argument. Complaints, normally phrased in the most partisan language, are in no conceivable sense evidentiary. That seems particularly true in a personal injury case, and one in which punitive damages are sought. The introduction of the complaint as an exhibit which the jury is told it should consider [AMI Civ. 3d 101 (d)] and which it may take into the jury room, strikes us as arrant error.
While the cases bespeak no hard and fast rule, pleadings, and especially complaints, are generally treated as inadmissible. Wright v. Hullett, 245 Ark. 152, 431 S.W.2d 486 (1968) (“Statement or allegation in a pleading, such as a bill in equity, or a petition of complaint ... is inadmissible in behalf of the pleader, in the action in which it is filed, against his opponent. . . .”); State Farm Mutual Insurance Co. v. Cates, 261 Ark. 129, 546 S.W.2d 423 (1977); Fumiko Matsuuchi v. Security-First National Bank of Los Angeles, 103 Cal.2d 214, 229 P.2d 376 (1951) (“Since when has an allegation in a pleading ever been regarded as evidence against an opposing party? The answer is never at all in the history of the law.”); Kroger Company v. Warren, 410 S.W.2d 194 (Tex. Civ. App. 1966); Abramsky v. Felderbaum, 194 A.2d 501 (1963); Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771 (1955).
Appellees responded by noting that answers to interrogatories, requests for admissions, depositions and the like, are admissible. While that may be true, provided they are germane, it hardly touches on the issue — whether a complaint may be properly introduced in evidence to sustain the plaintiff’s case. Nor are we persuaded by the argument that the introduction of the complaint was simply to provide the jury with a clear picture of what the plaintiffs were requesting by way of relief. There are other more appropriate methods of doing that than by making the complaint a component of evidence, by virtue of which it takes on a wholly different caste.
While the remaining points are rendered moot, we will discuss them as necessary for purposes of retrial.
Razorback bases two points for reversal on the premise that there was insufficient evidence of an employment relationship between it and Johnson which would render Razorback vicariously liable. Hence, it urges, the trial court erred in denying a motion for a directed verdict and in instructing the jury.
Razorback argues that Johnson leased a taxicab from Razorback under a written agreement expressly defining Johnson’s status as a self-employed, independent contractor; Razorback paid no wages or remuneration to Johnson, rather, Johnson paid Razorback a flat $35 per day; that Johnson paid his own expenses, was free to work or not as he chose, took breaks as he chose, was free to pick up passengers or not as he chose, and was subject to no direct supervision by Razorback. In short, Razorback maintains it is a lessor of taxicabs and nothing more.
But we have held in numerous cases that whether the parties have created an independent contractor relationship hinges on the right to control and that is essentially a fact question. (See Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990); Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987); Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985); Hobbs-Western Co. v. Carmichal, 192 Ark. 59, 91 S.W.2d 605 (1936).
While there were factors which would warrant a finding that Johnson was an independent contractor, there were others that supported an opposing inference, e.g., Razorback imposed a dress code on its drivers which included a ban on beards. Examining the proof in its entirety it is clear that more than one inference could be drawn and it was not improper to submit that issue to the jury. Evans v. White, supra; Rose v. Black & White Cab Co., 222 Ark. 210, 248 S.W.2d 50 (1953).
Razorback also contends that the altercation between Johnson and Lingo occurred outside the cab and any right of control it might have had ended when Johnson left the cab. But whether an employee is acting within the scope of employment for purposes of respondeat-superior is not necessarily dependent on the situs of the occurrence, but on whether the subject individual is carrying out the object and purpose of the enterprise, as opposed to acting exclusively in his own interest. Orkin-Exterminating Co. v. Wheeling Pipeline, 263 Ark. 711, 567 S.W.2d 117 (1978). The underlying purpose in this case, at least in part, was the comfort and welfare of other passengers, a purpose entirely consistent with the interests of Razorback, even though the means employed in furthering such interests were misguided.
Razorback complains that it was not permitted to show that Lingo was the likely aggressor because he admitted (in a discovery deposition) that he was aggressive when he drank, or to introduce specific instances of misdemeanor convictions for assault. Razorback concedes that evidence of a person’s character is not ordinarily admissible to prove that he acted in conformity therewith, but argues that A.R.E. Rule 404 recognizes an exception where the character of an accused is an issue in the case. However, in Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989), we upheld the trial court’s exclusion of similar evidence in a civil case:
[Under A.R.E. Rule 404] ... in civil cases, the general rule is that neither party may offer evidence that the other had a trait of character which made it likely that he acted in conformity therewith on the occasion which gave rise to the lawsuit. The exceptions to the general rule which are set out in (1) and (2) above are not applicable to civil cases. Use of the words “accused” and “prosecution” means that these two exceptions should be applied only in criminal cases. Weinstein & Berger, Weinstein’s Evidence, 404-22 (1988). This is true even if the conduct in the civil case could constitute a crime, as in the case at bar. Weinstein, supra, 404-25.
We find no error in the trial court’s ruling on these points. See McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978); A.R.E. Rule 609.
Razorback charges that it was not allowed to impeach Lingo’s credibility by showing that he had denied under oath ever having assaulted a police officer, when in fact he had been convicted of that offense. It is not clear how this issue developed in the trial court (appellant’s brief mentions both a motion in limine and the denial of cross-examination for impeachment.) Assuming the conviction to have been punishable by imprisonment for less than a year, it would not be useable for impeachment unless it involved dishonesty or false statement. A.R.E. Rule 609. Since assaulting a police officer involves neither, Razorback has not demonstrated error on this point.
The remaining evidentiary ruling to which Razorback objects, that is, the admission of felony overdraft convictions against Johnson, was related to the claim by the Lingos that Razorback was negligent in hiring Johnson. That cause of action was discarded during the course of the trial and should not be expected to arise on retrial.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Johnson has not appealed. | [
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Tom Glaze, Justice.
In September of 1990, the appellee, Forrest City Housing Authority, advertised a Request for Proposals (RFP) from engineering firms to prepare construction bid documents to correct a soil erosion problem in public housing facilities in Forrest City. Under the terms of the RFP, firms interested in the project were required to submit, along with other information, an estimated price for their services in order for them to be considered for the contract.
Appellant filed an action for declaratory judgment and injunctive relief on October 8,1990, asserting that any consideration of price prior to negotiations with the most qualified firm was in violation of Act 616 of 1989, codified as Ark. Code Ann. §§ 19-11-801 to -805 (Supp. 1989). Act 616 prohibits the use of competitive bidding in the procurement of professional services, including engineering services, by any political subdivision of the state. The chancellor below found that the RFP did not violate Act 616’s prohibition against competitive bidding and denied appellant’s request for injunctive relief. We reverse.
The legislative policy behind Act 616 is stated very succinctly as follows:
It is the policy of the State of Arkansas and political subdivisions that the state and political subdivisions shall negotiate contracts for legal, architectural, engineering, and land surveying services on the basis of demonstrated competence and qualifications for the type of services required and at fair and reasonable prices and to prohibit the use of competitive bidding for the procurement of professional services. (Emphasis added.)
Ark. Code Ann. § 19-11-801 (Supp. 1989).
The act further specifically provides that a political subdivision “shall not use competitive bidding for the procurement of professional services of a lawyer, architect, engineer, or land surveyor.” Ark. Code Ann. § 19-11-802(c) (Supp. 1989). Instead of competitive bidding, Act 616 requires firms to be evaluated and ranked solely on the basis of qualifications and capability to perform the desired work. The most qualified firm is then given the opportunity to negotiate a contract for the services at a fair and reasonable price. Ark. Code Ann. §§ 19-11-803 -804 (Supp. 1989).
The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Holt v. City of Maumelle, 302 Ark. 51, 786 S.W.2d 581 (1990); In Re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989). Further, when the wording of a statute is clear and unambiguous, the statute will be given its plain meaning. Cash v. Arkansas Comm’n on Pollution Control & Ecology, 300 Ark. 317, 778 S.W.2d 606 (1989).
There is no mistaking the intention of the legislature in this instance. Act 616 expressly and unequivocally prohibits the use of competitive bidding in the procurement of professional engineering services. It also prohibits the consideration of price in the procurement of professional services until the most qualified firms have been selected and negotiations have begun with the best qualified firm. See, Ark. Code Ann.' § 19-11-804.
The term “bid” generally refers to an offer to perform a contract for work and labor or supplying materials or goods at a specified price. Black’s Law Dictionary 147 (5th ed. 1979); see also United States v. Farina, 153 F.Supp. 819 (D.C.N.J. 1957). Furthermore, competitive bidding is defined as bids which are submitted as a result of public notice and advertising of an intended sale or purchase. Black’s Law Dictionary at 257. In the present case, appellee’s intended need was to acquire professional engineering services.
Here, the RFP advertised by appellee was clearly in the form of a solicitation for competitive bids. The RFP specifically reflects that responding engineering firms would be selected based on qualifications plus “price-based” criteria and that firms would be evaluated on the basis of “technical factors, including price.” Further, according to the express language of the RFP, appellee would select the most responsible firm “whose proposal is most advantageous to the program, with price and other factors considered.” Finally, the RFP set out seven “evaluation factors” and provided that any interested engineering firm must respond to each of those factors in order to be considered for the contract. One of those factors is price. There is no question that the RFP advertised by appellee is, on its face, in direct contravention of the legislature’s prohibition against competitive bidding for professional services.
Appellee argues, however, that any defect in the RFP is cured by the fact that price is not actually considered in ranking the top firms, and none of the firms are held to the quoted price once negotiations begin. Appellee also argues that this procedure is not in the nature of competitive bidding because it is not required to accept the lowest responsible bid as is the case in ordinary competitive bidding situations.
In the first place, if it is true that the prices submitted are not considered in ranking the firms, and ranked firms are not held to the prices submitted, then the notice requirement of submitting prices is rendered a nullity. In these circumstances, appellee offers no justifiable reason for employing an advertisement that facially violates the law by requiring price submissions prior to negotiations.
Further, appellee is, of course, correct in its assertion that it is not required to accept the lowest bid. That is exactly the scenario the legislature sought to avail when it passed Act 616. Presumably, the legislature wanted professional services to be procured on the basis of qualifications above all else without consideration of price until the firms were ranked and negotiations had begun. The interjection of price at any time prior to selecting the most qualified firms would seriously undermine this goal.
It should be noted that Act 616 does not require a political subdivision to accept the price finally offered by the most qualified firm during negotiations. The Act specifically provides for termination of negotiations with the top firm if the contracting authority is unable to negotiate a contract it considers fair and reasonable. The contracting authority then proceeds to the next most qualified firm and begins negotiations anew. See Ark. Code Ann. § 19-11-805. This process allows the contracting authority to negotiate the most fair and reasonable price with the most qualified firm in accordance with the stated policy of the legislature.
We reverse and remand with directions that appellee be enjoined from taking action regarding any proposals or contracts related to the advertisement of competitive bidding held contrary to law as discussed herein. | [
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Per Curiam.
Petition for writ of prohibition is denied.
Glaze and Price, JJ., dissent.
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Carleton Harris, Chief Justice.
Four checks in the amounts of $3,800.00, $3,000.00 (these checks being dated. January 13, 1966), $1,242.55 and $155.00 (these checks being dated January 14, 1966) were drawn on the Citizens Bank of Pottsville by Glen D. Chenowith, appellant herein, made payable to Homer Parham. These checks were all deposited in the Bank of Dardanelle by Par-ham, where he had an account, and were forwarded on to the correspondent bank in Little Bock. “When they reached the Pottsville Bank, this bank refused payment, noting insufficient funds on the two larger checks, and “Bank closed for examination” on the two smaller ones. The correspondent bank notified the Bank of Dardanelle by wire or telephone call that the checks were being returned. Thereupon, the Bank of Darda-nelle, appellee herein, examined Parham’s balance, and found that he had on deposit in excess of $6,800.00; a hold order of $6,800.00 was placed on Parham’s account so that when the unpaid checks were returned to Darda-nelle, they would be covered. In the meantime, Parham wrote a check to Chenowith, drawn on the Bank of Dardanelle, for $6,800.00, and this check was presented for payment in the Dardanelle Bank after the bank had been notified that the $3,800.00 and $3,000.00 checks' had been turned down, but before those checks were actually forwarded to the Dardanelle bank. When this $6,-800.00 check was presented, the bookkeeper at the Bank of Dardanelle mistakenly believed that the purpose of the hold order was to cover this $6,800.00 check, and, under this belief, the hold order was removed and the $6,800.00 check was paid. When the two checks (already turned down by the Pottsville hank) arrived at the Dardanelle hank, there were no funds in Parham’s account to charge hack. A hank employee, not knowing that the hold order had been removed, and that Parham no longer had sufficient funds on deposit to cover a chargeback, mailed both checks to Parham with a notice advising the latter that the two unpaid checks would be charged back against his account. The bank was unable to collect the $6,800.00, and accordingly instituted suit in the Pope County Circuit Court against Parham and Chenowith for the amount of the four checks. At the conclusion of appellee’s evidence, appellants moved for a directed verdict, and this motion was denied. At the conclusion of all the evidence, the court again denied a motion for directed verdict, and the case was submitted to the jury. The jury returned a verdict of $4,098.70 against Chenowith, and a like amount against Parham. From the judgment entered in accordance with this verdict, Chenowith brings this appeal. Parham does not appeal from the judgment rendered against him. Three points are alleged for reversal,, but since Point 2 controls the litigation, there is no need to discuss the other contentions. Appellant’s Point 2 alleges that the court erred in refusing to give a directed verdict for the appellant, at least insofar as the $3,000.00 and $3,800.00 checks are concerned.
This case is governed by the provisions of the Uniform Commercial Code. Ark. Stat. Ann. § 85-3-603 (Add. 1961), inter alia, provides as follows:
“(1) The liability of any party is discharged to the extent of his payment or satisfaction to the holder even though it is made with knowledge of a claim of another person to the instrument unless prior to such payment or satisfaction the person making the claim either supplies indemnity deemed adequate by the party seeking the discharge or enjoins payment or satisfaction by order of a court of competent jurisdiction in an action in which the adverse claimant and the holder are parties. This subsection does not, however, result in the discharge of the liability.
(a) of a party who in bad faith pays or satisfies a holder who acquired the instrument by theft or who (unless having the rights of a holder in due course) holds through one who so acquired it;”
Parham testified that he was notified by John Hamilton, Vice-President of the Dardanelle bank, by phone call that the Chenowith checks were not good, and that something would have to be done about them. Parham stated that he would have to get in touch with Cheno-with. Hamilton advised that he (Parham) had around $18,000.00 in the bank, and the banker requested that he be allowed to deduct these bad checks from that amount. Parham approved this procedure, and subsequently received the two checks in the mail. A few days later, Hamilton called back, and told him to come over to the bank. Parham complied with the request. He found Hamilton somewhat upset, the latter stating that the bank examiners would be in, wanting Parham to sign a “paper”; Parham signed a note for something over $11,000.00 Parham and Chenowith went back the next day, and according to the former, Hamilton informed him that the amount wasn’t as much as originally thought, and had him sign a new note. This note was in the amount of $8,847.55, and included the four cheeks here involved upon which payment had been refused. Parham insisted that the notes were signed at Hamilton’s request. 'The banker, however, testified to the contrary, i. e., he said that the suggestion had been made by Parham. Hamilton stated that Parham said, “I sure don’t want the bank to be in any jam on my account, and I don’t want the bank to lose on this. Just let me sign something to take care of it. Just let me sign a note.” Whereupon, Hamilton prepared a demand note, which Parham signed. According- to the banker, the note was not even filed; he simply “pitched” it into a box. When asked what the note was for, Hamilton replied, “Nothing whatever. It was never recorded in onr books at all. The note was not carried through the bank in any way.” The purpose of obtaining the note is never made clear, though it certainly would appear that it could only have been for the purpose of placing the bank in a position to, at some time in the future, collect its money for the checks that had not been paid. The testimony does not reflect that Hamilton even asked Parham for the checks. Chenowith was present when Parham signed the note.
The note was signed on January 25, and Chenowith testified that, on January 28, he settled the checks with Parham; at that time, Parham returned the checks to appellant. The settlement was reached largely on the basis of the fact that each man owed the other different sums of money for various transactions, and Chenowith stated that, after all credits had been allowed by each, Parham owed him $272.00. Parham’s testimony is not at all clear. He first said that they had not settled; he subsequently said that their accounts were settled within a few hundred dollars, not more than $300.00, and if Chenowith said $272.00, that amount was probably correct.
Appellant contended that his liability was discharged under the provisions of § 85-3-603, heretofore quoted, since he fully satisfied the amount of these checks with the holder (Parham). The Circuit Judge, however, denied the motion for directed verdict, because Chenowith was with Parham at the bank when Hamilton advised that the checks were unpaid. This ruling was erroneous. It will be noted that the statute says that the liability of the party is discharged “even though it is made with knowledge of a claim of another person to the instrument,” unless the claimant (the bank) supplies indemnity deemed adequate by the party seeking the discharge (Chenowith) or enjoins payment or satisfaction by court order in an action in which the adverse claimant (Chenowith) and the holder (Parham) are parties. No indemnity was supplied, nor did the bank, in filing its suit, seek an injunction, as provided by the statute. It is also asserted by appellee that Chenowith and Parham were acting in bad faith, i. e., they knew the checks had not been paid at the time they made this settlement. Appellee, in its brief, asserts that Parham was nothing more than a bailee, and his conduct amounted to a conversion of the checks “to his own use or a larceny by bailee, and accepting them with knowledge of the circumstances, Chenowith participated in the conversion or larceny and was nothing more than an accessory thereto.”
Under the statute, Chenowith would not have been discharged from liability if he paid or satisfied a holder “who acquired the instrument by theft or who holds through one who so acquired it,” but the commissioners’ comment with reference to Subsection (1) makes clear that the question of good or bad faith has nothing to do with liability. That comment is as follows:
“Subsection (1) changes the law by eliminating the requirement of the original Section 88 that the payment be made in good faith and without notice that the title of the holder is defective.”
Of course, Parham did not steal the check, and it might also be mentioned that the complaint does not charge that Chenowith and Parham entered into a conspiracy to defraud the bank.
Appellee also argues, as a matter of supporting its judgment, that Chenowith and Parham had not completely settled their financial transactions with each other (this contention being made on the basis of Parham’s testimony), and since they had not fully settled, Cheno-with’s liability had not been discharged. We disagree. Whether the entire indebtedness between the men had been settled is immaterial here, for it is admitted that the cheeks had been turned over to Chenowith by Par-ham, who had become the holder, having been sent the checks by the bank. Thus, Chenowith had settled this indebtedness with Parham.
Of course, the checks were sent back to Parham by the bank through error, but, under the quoted section of the Commercial Code, this is of no aid.
As to the two smaller checks, we think without going into detail, that the appellant is liable. Succinctly, this conclusion is reached because these cheeks, though not paid, were not returned by the bank to Parham, and appellee accordingly remained the holder of those checks. Being the holder, it had a right to proceed against Chenowith.
In accordance with the reasoning herein set out, we hold that the court erred in not directing a verdict for appellant on the $3,800.00 and $3,000.00 checks, and the judgment is reversed to that extent. There was no error in that part of the judgment covering the $1,242.55 and $155.00 checks. The cause is therefore remanded to the Circuit Court, with instructions to enter a judgment not inconsistent with this opinion.
The two smaller checks are not affected by the controlling statute in this litigation, and will be treated separately in this opinion.
Both Chenowith and Parham were engaged in the business of the purchase and sale of livestock, and they frequently sold and bought cattle from each other.
There were other checks upon which payment had been refused, besides the four involved in this litigation.
Under the Uniform Commercial Code, “Part 2 — General Definitions and Principles of Interpretation, [85-1-201] (20) ‘Holder’ means a person who is in possession of a document of title or an instrument or an investment security drawn, issued or indorsed to him or to his order or to bearer or in blank.” | [
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John A. Fogleman, Justice.
Appellant seeks to reverse a judgment entered against him March 3, 1967. The only point for reversal is the contention that this was actually a modification of a decree of the court entered March 25, 1966, a day of an earlier term of the court.
Appellees brought suit against appellant and another, asserting a landlord and tenant relationship, a liability of appellant to appellee for rent, a right to recovery of certain personal property remaining and a right to an accounting for personal property which they alleged came into the possession of appellant under a lease agreement. On March 25, 1966, the trial court, after having heard testimony offered by both parties, entered what was labeled “Decree.” This instrument set out the appearances of the parties, enumerated the components of the record upon which the ease was heard and made certain findings. In summary form, these findings were:
1. That the complaint should be dismissed as to one of the defendants.
2. “That a contractnal relationship has existed from month to month from December 9, 1963, until July 8, 1965. A Rental of $40.00 per month should have been paid by the defendant C. H. Thomas, to the plantiffs herein.”
3. “On motion of the defendant, C. H. Thomas, the said contractual relationship is hereby terminated as of this date.”
4. That Thomas shall permit appellees to remove certain personal property from the leased premises.
These findings were followed by a separate paragraph which reads: “IT IS SO ORDERED,” after which appeared the signature of the chancellor. Nothing further appears to have been done until the entry of the judgment from which this appeal was taken. It is entitled “JUDGMENT ON DECREE.” It recites, the hearing of the cause on March 25, 1966, and quotes finding number 2, as set out above. This language follows:
“IT IS THEREFORE by this Court, Considered, Ordered and Adjudged that the plaintiffs do have and recover of and from the defendant, C. H. Thomas, the sum of Seven Hundred Sixty and No/100 ($760.00) Dollars, together with interest at the rate of six percent (6%) per annum from the 25th day of March, 1966, from all of which garnishment and execution may issue immediately as on a Judgment at Law.”
One full term of the court intervened between the two court actions. If appellant were correct in his analysis, the last action would constitute an unauthorized modification of a judgment, since none of the statutory grounds for such action is asserted.
Decision of this appeal, then, depends entirely upon the determination of the character of the first court action. Formal requirements for a judgment in Arkansas are few. It is the final determination of the rights of parties in an, action. Ark. Stat. Ann. § 29-101 (Repl. 1962). The amount of the judgment must be computed, as near as may be, in dollars and cents. Ark. Stat. Ann. § 29-415. A judgment must specify clearly the relief granted or other determination of the action. The few basic requirements must be met and the judgment must clearly show that it is the act of the law, pronounced and declared by the court upon determination and inquiry. Baker v. State, 3 Ark. 491. While a rather technical application was made of this-rule in the cited case, strict formality in language used to express the adjudication of the court is not necessary and a “judgment” will be tested by its substance not its form. Melton v. St. Louis I. M. & S. R. Co., 99 Ark. 433, 139 S. W. 289. The name by which it is called by the court is not controlling. State v. Donohue, 11 Wis. 2d 517, 105 N. W. 2d 844. We have held that the designation or title given a pleading is not controlling, but that its effect, character and sufficiency are to be determined by its substance regardless of what it is called. Rinehart & Gore v. Rowland, 139 Ark. 90, 213 S. W. 17; Craft v. Armstrong, 200 Ark. 681, 141 S. W. 2d 39; Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S. W. 2d 557; Stroud v. M. M. Barksdale Lbr. Co., 229 Ark. 111, 313 S. W. 2d 376; Parker v. Bowlan, Executrix, 242 Ark. 192, 412 S. W. 2d 597. There is no reason we should not apply the same rule to a court order. See, also, 49 C.J.S. 29, Judgments, § 5.
When we apply the test of substance to the “decree” of March 25, 1966, in the light of the basic statutory requirements for a judgment, we find it lacking in basic essentials. It has more of the characteristics of written findings and conclusions than of a judgment. The factors demonstrating this are:
1. The numbered paragraphs purport to be findings of the court.
2. While the court found that the complaint should be dismissed as to a codefendant, there is no final disposition of appellees’ prayer for a judgment against- defendant for past due rents or for personal property alleged to have been removed and destroyed.
3. While the court found that a contractual relationship existed between appellant and appellees for a period of 19 months and that a rental of $40.00 per month should have been paid by appellant to appellees, there was no declaration of the amount actually due or remaining unpaid, nor was there any dismssal of the action as to Thomas.
The only items which could possibly be said to hare been disposed of in the original order are the dismissal of a party and the delivery of certain personal property. Insofar as appellant was concerned, these were subsidiary matters. There was no dispute about appellees’ right to possession of the property. The finding that the other defendant was not a party to the action might have been a corollary to the statement that a contractual relationship existed between appellees and appellant.
The decisions, opinions, and findings of a court do not constitute a judgment or decree. They merely form the bases upon which the judgment or decree is subsequently to be rendered and are not conclusive unless incorporated in a judgment or a judgment be entered thereon. Ex Parte Niklaus, 144 Neb. 503, 13 N. W. 2d 655; Employers Ins. Co. v. Brooks, 250 Ala. 36, 33 So. 2d 3 (1947); Gouger v. Sarpy County, 151 Neb. 207, 36 N. W. 2d 775 (1949); Gilpin v. Burrage, 188 Tenn. 80, 216 S. W. 2d 732 (1949); Hays Trucking Co. v. Maxwell, 261 P. 2d 456 (Okla. 1953); Crowe v. DeSoto Consolidated School Dist., 246 Iowa 38, 66 N. W. 2d 859 (1954); In Re Lounsberry’s Estate, 149 Cal. App. 2d 857, 309 P. 2d 554 (1957). They are more in the nature of the verdict of a jury and no more a judgment than such a verdict. State, Ex Rel Work v. Brown, 44 Ind. 329 (1873); Galiger v. McNulty, 80 Mont. 339, 260 P. 401 (1927); Central Republic Bank & Trust Co. v. Bent, 281 Ill. App. 365 (1935).
A judgment is distinguished from an order in that the latter is the mandate or determination of a court on some subsidiary or collateral matter arising in an action not disposing of the merits but adjudicating a preliminary point or directing some step in the proceedings. 49 C.J.S. 29, Judgments, § 5.
In treating similar situations, other courts have found actions such as that first taken in this cause not to be such final determinations as to constitute judgments. In Alvord v. McGaughey, 5 Colo. 244 (1880), the court entered a finding that the defendants were indebted to the plaintiffs in the sum of $202.00. The court said that while a strict compliance with form was not essential, the record must not only indicate that an adjudicatic took place, but the entry must have been intended as the entry of a judgment in order to constitute a final judgment. The Court of Appeals of Georgia held that a statement in a court’s order on certain demurrers with reference to an agreement of the plaintiff to pay the defendant $467.00 if certain cases were settled, was not a judgment but a mere statement of a reason for a conclusion it had reached as to a part of the case. Aiken v. Richardson, 80 Ga. App. 591, 56 S. E. 2d. 782 (1949). A finding by a court in a divorce case that there was due and owing by a plaintiff to a defendant the sum of $275.00 per month for a period commencing January 1, 1947, and ending January 1, 1950, was held not to have the force and effect of an adjudication dispos ing of the subject matter in a manner sufficient to constitute a judgment. Taliaferro v. Taliaferro, 178 Cal. App. 2d 146, 2 Cal. Rep. 719 (1960). A final judgment or decision is one that finally adjudicates the rights of the parties, putting it beyond the power of the court which made it to place the parties in their original positions. Crowe v. DeSoto Consolidated School Dist., 246 Iowa 38, 66 N. W. 2d 859 (1954). It must be such a final determination as may be enforced by execution or in some other appropriate manner. Wilson v. Corbin, 241 Iowa 266, 40 N. W. 2d 472 (1950); Crowe v. DeSoto Consolidated School Dist., supra.
A judgment or decree for money should state the amount which the defendant is required to pay and the date from which interest is to be computed. Aldrich v. Sharp, 3 Scammon (Ill.) 261; Park v. Holmes, 147 Pa. 497, 23 Atl. 769 (1892); Emig v. Medley, 69 Ill. App. 199 (1896); Spoor v. Tilson, 97 Va. 279, 33 S. E. 609 (1899); Marteeny v. Louth, 206 Ill. App. 158 (1917). Even if it could be argued here that the court’s findings indicated that appellees should have a money recovery from appellant, such findings would not have given the clerk any guide as to the amount of the judgment or the date from which interest would have run for the purpose of issuing execution. As a further indication of uncertainty of the amount, the prayer of the complaint was for $520.00. It might well be that the appellees would have been limited to that amount of recovery had the question been raised.
Clearly, the action of the court on March 25, 1966, was deficient as a final determination of the rights of the parties. It is also inadequate in computation of the amount of the judgment and specification of the relief granted. Thus, the judgment of March 3, 1967, was the first actual judgment in the case. Accordingly, it is affirmed.
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Lyle Brown, Justice.
This suit was originated by E. J. Holland, appellee here, to quiet title in 111 acres of land in Madison County. The principal cloud on his title arose as a result of a prior executed lease covering forty acres. That lease has been in the hands of several parties, a number of whom here claim rights still subsist in them. Their claims were adverse to Holland and also as between themselves. The trial court declared the lease had been cancelled for default in monthly rental payments. Various counterclaims and cross-claims growing out of the operations under the lease were litigated and appeals have been taken from those findings. Ap pellants are John E. Yarbro, War Eagle Lime Co., Inc., and Joseph A. Gentry.
The forty-acre tract which was leased contained substantial limestone deposits. In 1952 Harwood and Will obtained a nineteen-year lease for the purpose of removing limestone and processing it at a quarry to he located on the lands. The fee owner was to receive five cents per ton for the products processed at the quarry, Avith this additional provision:
“And if . . . the royalty payable to lessor be less than an average of $25.00 per month for a period of 3 consecutive calendar months, then lessee must nevertheless begin paying lessor $25.00 per month minimum, and if this stipulation is not fulfilled then lessor may on 30 days written notice to lessee cancel this lease agreement and lessee be required to remove his property from the premises.”
In 1959 appellant Joseph A. Gentry came into possession of the lease by assignment. He was also assigned “the good will and name of the War Eagle Lime Company.” Within a few weeks Gentry assigned the lease to appellant John E. Yarbro. Gentry and Yarbro simultaneously executed a sale and purchase agreement. By that instrument Yarbro became the owner of the business operated under the name of War Eagle Lime Company. Gentry retained a lien on the lease and all the operating equipment to secure the installment payments.
Yarbro apparently incorporated the lime company under the name of War Eagle Lime 'Company, Inc. This was done within three months after the Gentry to Yar-bro transaction. Yarbro transferred his interest to the corporation “subject to the contrae! of sale and purchase” between Gentry and Yarbro.
Yarbro operated the company from 1959 until late in 1963, paying the mining royalties to the fee owner, Berry Denney, until December 1963. At that time Yarbro entered into an agreement with Denney to buy the forty leased acres on which War Eagle’s operation was located. An escrow agreement was executed. Yarbro agreed to make a cash payment of $10,000, half of the purchase price, and agreed to pay the balance on or before June 2, 1964. Appellee E. J. Holland actually advanced the down payment for Yarbro. The payment was delivered to Deñney. The escrow agreement, contract of sale, and warranty deed, Denney to Yarbro, were held by the escrow agent, First National Bank of Huntsville.
Shortly after the escrow deposit, Yarbro advised his benefactor and employee, Holland, that Yarbro would not be able to raise the purchase price. Appellee Holland testified that in order to protect his advancement, he agreed with Yarbro to buy the acreage. On December 23, 1963, which was ten days after the Denney-Yarbro transaction, Yarbro executed a warranty deed to Holland. The latter was aware of the outstanding mining lease and the escrow transaction. Holland either held his deed or left it with the Bank. On May 22, 1964, Holland and Denney went to the Bank. There Holland paid the balance of the purchase price, borrowing the money from the Bank. Forthwith three instruments were simultaneously recorded under the Bank’s direction. These were the Denney-to-Yarbro deed, the Yarbro-to-Holland deed, and Holland’s mortgage to the Bank.
Yarbro operated the business from 1959 to late in 1963. By that time War Eagle was heavily indebted. There was no production during the first few months of 1964. During that interim Holland was trying to raise capital to purchase new machinery which would be used in making new products. That endeavor was not successful. At this point Yarbro, acting in the name of the corporation, conveyed all rock and other merchandise on hand to Holland. Appellants claim Holland was to retain $2,910 owed him by War Eagle and to return the balance to the Company. Holland claimed $6,554.15 was due him for wages, commissions, and expenses.
We have summarized the salient facts touching on the status of the lease. For purposes of clarity we shall here digress from the many other contentions and discuss our holding with respect to the lease.
If the lease was extinguished it was because; no royalty or rental payments were made during the escrow period, that being from December 2, 1963, until May 22, 1964. On May 10, 1964, Yarbro tendered the April payment (the twenty-five dollar minimum) to Holland. It was refused. Yarbro testified that for several months thereafter he made continuous tenders. There is little dispute about those tenders. All were refused. Gentry sued Yarbro and on June 9, 1965, a judgment was entered in that case in the Madison Chancery Court. All rights of Yarbro in and to the lease were cancelled. The personal property was ordered sold to apply on Gentry’s judgment. Then on June 10, 1965, by money order “to Holland, Gentry tried to make the rental payment due on that day.
. If the lease was still in effect when Holland took the deeds out of escrow, the recited tenders were sufficient to keep the lease in effect. Continuous and unbroken tenders are unnecessary when it is evident they will not be accepted. Holloway v. Buck, 174 Ark. 497, 296 S. W. 74 (1927); Taylor v. Mutual Ben. Health & Accident Ass’n., 133 F. 2d 279 (1943).
Holland’s title did not vest until May 22, 1964. He made the down payment with full knowledge that the Denney-to-Yarbro deed would not be released until the balance of the purchase price was paid. And Holland agreed to, and did, timely pay the balance. Unquestionably, Holland knew he had no title until Denney was paid. The.chancellor took the view that Holland’s rights vested when the Yarbro-to-Holland deed was executed. The trial court also held that the tender of royalty payments was ineffective, theorizing that those payments could not be forced upon Holland. In these two respects the trial eourt erred.
During the escrow period title remained in the grantor, Denney. No waiver of rental payments was recited in the sales contract. Denney’s conveyance was on a, condition, namely, payment of the full purchase price. Mansfield Lumber Co. v. Gravette, 177 Ark. 315, S. W. 2d 726 (1928). Therefore Holland’s right to rents did not vest until his title vested. The right to rents was in Denney, but in this case he makes no demand. In fact he testified he did not expect any rents after he conveyed to Yarbro. This was perhaps due to Denney not knowing he had a legal right to them. Further, it would not be reasonable to presume that Denney intended to give Holland an absolute right to rental payments when Denney had only a contingent possibility of consummating the sale.
It is our conclusion that the bare lease is in force and the leasehold interest is vested in Gentry. We now consider the remaining contentions.
Yarbro and War Eagle Lime Co., Inc. raise these points in their combined brief:
Point 1. The court should have vested title to the lease in these appellants. Yarbro conveyed the lease to War Eagle subject to the lien in favor of Gentry. The Madison Chancery Court, in an action separate from the one before us, determined that Gentry was entitled to be reinvested with that which he conveyed to Yarbro. This point is therefore without merit.
Point 2. The court erred in dismissing these appellants’ prayer for an accounting and judgment against Holland. In that connection, these appellants argue the property was placed in trust with Holland. They contend Holland sold large quantities of raw materials and should account to them. On conflicting testimony the court held that no such trust had been created and that Holland was not so indebted. We affirm those findings.
Point 3. The court should not have cancelled the lease as to War Eagle Lime Co., Inc. because the notice to vacate which was purportedly served on War Eagle was ineffective. This is without merit. According to the sheriff’s certificate, a notice was served “on War Eagle Lime Company and John E. Yarbro by delivering a copy of the same to him individually and as President of said Corporation and stating the substance thereof this 27 day of June, 1964.” Below the signature of the sheriff appears handwriting indicating that a copy may have been delivered to Yarbro’s wife. The sheriff was not called to testify. The handwriting is unsigned. If a copy was delivered to Mrs. Yarbro, we can hut assume that was a copy in addition to the copy delivered to John E. Yarbro.
Aside from the lease, Gentry made two other contentions. He sought an accounting from Yarbro and that Avas denied. The simple answer is that Gentry proceeded against Yarbro in a separate action and was awarded judgment against Yarbro. In that action he foreclosed his lien on the lease and fixtures for the purchase price. If he did not there include a claim for other items involved in the same transaction, he is too late.
Finally, Gentry classifies himself as a creditor of War Eagle Lime Co., Inc. He seeks judgment against Holland because Gentry had no notice of the execution of the bill of sale from Yarbro to Holland. That instrument, dated March 3, 1964, transferred the stockpile of filter rock, concrete aggregate, chips, and lime to Holland. Those items were the property of War Eagle Lime Co., Inc. Gentry was not a creditor- of that corporation; he was a creditor of Yarbro.
We affirm the trial court’s findings in all respects except as to the lease in question, title to that instrument being vested in Gentry. | [
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Carletox Harris, Chief Justice.
Petitioner, William Orman, on February 21, 1964, entered pleas of guilty to five counts of robbery in the Pulaski County Circuit Court (First Division). The court sentenced Or-man to a term of twenty-one years on each of the counts, with the sentences to run concurrently. In April, 3967, Orman filed a “petition for a Writ of Habeas Corpus,” which we treát as a petition under our Criminal Procedure Rule No. 1. Counsel for petitioner was appointed by the Circuit Court, and a hearing was conducted in May. At the conclusion of the hearing, the court denied the petition, and remanded the petitioner to the custody of the warden of the state penitentiary. From such judgment, appellant (petitioner) brings this appeal.
The petition asserts that appellant was arrested about November 30, 1964, on three charges of robbery, and placed in jail in North Little Rock. It is contended that he was not allowed to contact anyone, nor was he informed of his right to legal counsel, or the right to maintain silence. The petition further alleges that he was threatened and beaten by the police and told that if he did not sign a statement, his wife (who, according to appellant, had also been arrested) would be given ‘ ‘ time ’ ’ for the robberies, and he would never leave jail alive. It is then asserted that he signed an incriminating statement and was removed to the Pulaski County jail in Little Rock where lie subsequently made bond. After three days of freedom, he was again arrested, and two additional charges of robbery were placed against him. It is contended that he was interrogated and threatened by Pulaski County officers. Appellant stated that he entered a plea of not guilty to robbery, but was informed by the court that if he did not plead guilty to the charges, “lie would never get out of jail.” It is contended that he was sentenced without being properly advised of bis rights to legal counsel.
These allegations are somewhat at variance with some of the proof offered at the hearing by Orman. He stated that, at arraignment, he entered a plea of not guilty himself, and did not have an attorney. However, he admitted that he had employed an attorney (Charles Scales), but he said that he employed this attorney simply for the purpose of getting the money returned that the officers had taken from him when he was arrested. Ho did say that Scales had visited hiin two or three ifferent times while he was in the county jail, and had told him that he should plead guilty to the robbery charges. The evidence reflected that appellant had been charged, along with two other men, James Martin, and John Carson. Orman testified that the court appointed Scales as attorney for the other two men, but did not appoint an attorney for him. According to his testimony, he was beaten with an iron pipe by an inmate in jail, Scrappy Moore, and was taken to the University Hospital, where he remained for a few hours. Orman said that he was told by one of the inmates of the jail that something would happen to him if he didn’t plead guilty, and he decided to enter this plea in order to get away from the jail. “I would rather spend 21 years down there as to be dead.” He insisted that he did not enter a plea of-guilty to robbery, but did say that he had entered a plea of guilty as an accessory, not knowing that an accessory was equally guilty with the principal. Or-man testified that the Circuit Judge said, “If you don’t plead guilty, I will, give you 5 twenty-one year sentences/’
As far as the alleged beatings by the North Little Rock Police are concerned, appellant is entitled to no relief. Officer J. PI. Munns Jr., denied this testimony, stating that not a hand was placed on Orman. Munns testified that appellant stated that he did not want a lawyer, and that the statement Orman made relative to his involvement in the robberies was entirely voluntary on his part. Further, that he had no recollection of Or-man’s wife being arrested, and, in fact, Orman was permitted to make a phone call to his wife, and she visited him. The officer stated that, though not advising appellant that he could have an attorney, Orman was told that he had a right to remain silent, and that anything he said could be used against him in a court of law. We think the evidence, particularly when we view the inconsistencies in appellant’s testimony, preponderates to the effect that he was not mistreated in the North Little Rock jail. Miranda v. Arizona, 384 U. S. 436, had not been decided at the time, and thus is not pertinent in this case. Likewise, though alleged in the petition, there is no evidence, including his own testimony, that Orman, after being placed in the Pulaski County jail, was mistreated in any respect by the officers.
Charles Scales, Little Rock attorney, testified that Orman, while- out on bond, engaged him to secure the return of some money that had been in his possession when he had been arrested. Scales said that he contacted the Prosecuting Attorney, but was told that the state was going to hold the money as evidence in the cases. He testified that at the time Orman appeared before the court for arraignment, appellant was asked if he had a lawyer, and replied, “Yes, Charles Scales.” The attorney stated that he was appointed at the time to defend Martin and Carson, and he visited the three' of them in jail several times to discuss the charges. From his testimony:
“The best of my recollection is that the matter was set for a jury trial and, lo and behold! then one day I read in the newspaper where Bill Orman had taken 21 years and that was the first time I knew that he intended to come np here and enter a plea of guilty.”
The lawyer emphatically denied that he had ever advised appellant to enter such a plea. In fact, it seemed to be the opinion of this witness that there was a good opportunity to have some of the state’s evidence held inadmissible. He said that he had planned on defending Orman before the jury.
H. F. Hemphill, Pulaski County jailer, testified that one morning in February, 1964, he was notified that there was a disturbance in one óf the cells, and an investigation revealed that a pipe, which had been used as the handle of a water bucket had been used by William B. (Scrappy) Moore in striking Orman. Hemphill testified that Moore said that appellant was bothering “some old man” in the cell with him, and he (Moore) resented it, and after an argument, Moore pulled the handle (pipe) from the wringer, and struck Orman with it.
As heretofore pointed out, we find no merit in the allegations of mistreatment on the part of either the city or county officers, but, relative to the voluntary plea of guilty, which seems to be the principal contention, there is evidence that leaves this particular ques tion in confusion. We refer to the statement of the trial court itself.
“Now I would like to give my recollection about him coming over. Of course, the record shows that on 1-6-64 in those five eases that I mentioned, Orman and Martin and Carson appeared, and the record shows that Orman was represented by Charles Scales, and on that day I appointed Charles Scales to defend Martin and Carson. There was a plea of not guilty entered, passed to the February setting to be reset. Martin went to the State Hospital, but Orman did not. On 2-3-64 Orman’s case was set for a jury trial .on July 7, 1964. On 2-21-64 Orman sent word to me, or somebody brought word up here, purportedly from Orman, that Orman wanted to change his plea from not guilty to guilty, and I ordered him brought up, and he was brought before the Court, and on that date he changed his plea in all five cases from not guilty to guilty and received 21 years. I remember when Orman came up here that his bad eye was hanging out on his cheek. One of his arms was pretty well “bunged” up. He had been pretty severely beaten.' I think I asked him at the time who beat him, and I don’t believe he would tell me. Now, I have got a faint recollection of telling him if he would tell me who beat him up that I would hav.e whoever it was indicted for assault to kill. That is my recollection. I may be just wrong about that, but I think I offered to do that, and he wouldn’t tell me. There was some discussion that came up about he didn’t think he ought to have 21 years, and I told him if he wasn’t guilty then not to plead guilty and we would have a jury trial. That’s what £ tell them all. I told him if he wanted a jury trial that we would have a trial on each count and if the jury convicted him that I would stack them. I told him if be was not guilty that lie should not plead guilty. That is what I tell them all. I am sure I told him the same thing. The upshot of it was that he decided he wanted 'to plead guilty and I gave him 21 years, and I am sure I asked him where his attorney was and why he wasn’t present. What he told me, I don’t know. I don’t know whether he made any explanation of it at all. I* don’t remember. That is about the best I recall of it. Of course, I didn’t send for him. I don’t remember the exact words, but I’m sure I asked him where his lawyer was and why he wasn’t with him. Do you want to cross-examine me, Mr. Prosecutor or Mr. Dishongh? I will try to make it clearer if I can.”
There are three matters mentioned that, we think, call for a reversal. One, the court commented, “I remember when Orman came up here that his bad eye was hanging out on his cheek. One of his arms was pretty well ‘bunged’ up. He had been pretty severely beaten.” We do not know what is meant by the expression, “His bad eye was hanging out on his cheek,” but it does appear that Orman had been severely beaten. Bear in mind that, according to his (Orman’s) testimony, the beating, though admittedly not inflicted by . the officers, influenced him in deciding to plead guilty. The second matter that relates to the plea is the fact that Lawyer Scales was not present. Though Orman insisted that Scales did not represent him in these cases, Scales testified to the contrary, and the court docket reflected that this attorney did represent Orman. Here, the judge’s memory was not clear. “I am sure I asked him where his attorney was and why he wasn’t present. What he told me, I don’t know. I don’t know whether he made any explanation of it at all. I don’t remember. ’ ’ Normally, of course, when a man is represented by an attorney, that attorney is present when any action is taken in the case. The most noticeable statement in the court’s recitation of the facts as he remembered them is, “There was some discussion that came up about he didn’t think he ought to have 21 years, and I told him that if he wasn’t guilty then not to plead guilty and we would have a jury trial. That is what I tell them all. I told him if he wanted a jury trial that we would have a trial on each count and if the jury convicted him that I would stack them.” While, of course, a court should explain to a prisoner, when he is entering a plea of guilty, the nature of the charge, and the penalty that it carries under the statute, no statement should he made that could he construed as influencing the prisoner to enter a plea of guilty. While we do not think the remark was so intended, it could have been interpreted by appellant as a threat. When the three matters herein mentioned, vis., a severely beaten prisoner — without his attorney present — and the statement of the court about “stacking” sentences, are all considered together, we think a question arises as to whether the plea was entered voluntarily. Inasmuch as the judge’s testimony relates to this question of fact, and is, as far as the present record is concerned, the most important evidence in the issue here in question (whether the plea of guilty was voluntarily entered), it will be necessary that a different judge conduct a further hearing on remand. That judge then, after hearing the testimony, including that of Judge Kirby, can pass upon the fact questions.
While the court’s remarks more or less indicate its findings, • we take occasion to call attention to Section (E) of Criminal Procedure Rule No. 1, which, inter alia, provides:
“* * * The court shall determine the issues and make written findings of fact and conclusions of law with respect thereto,”
This procedure should be followed in all cases heard under Criminal Procedure Rule No. 1.
We would also like to reiterate what was said in Medley v. Stephens, Supt., 242 Ark. 215, 412 S. W. 2d 823 (March 27, 1967), which is particularly apropos to the case at hand:
“The Court, very properly, on January 4, 1965, (date of appellant’s plea of guilty), had all court pro ceedings relating to the charge against Medley reported by the official court reporter. We think it appropriate to commend the Jefferson Circuit Court for adopting this procedure in receiving pleas of guilty. It will at once be recognized that, in subsequent hearings on petitions for post-conviction relief, after a plea of guilty (wherein allegations are contained that such plea was entered through mistake — or duress — or without being advised of the right to counsel), nothing is left to guesswork. The complete record is available. There is no need for the judge — or the prosecuting attorney — nor any other person — to testify from memory, and we recommend that, where possible, all trial courts, in accepting pleas of guilty, direct that a record be made of all proceedings therein,”
For the reasons herein set out, the judgment is reversed, and the cause remanded.
The witness stated: “Now, each morning a mop and bucket and wringer is put in the cells for the prisoners to clean up their part themselves, and after they have finished the bucket and wringer is removed. On this particular morning, I was called up there to this disturbance and I found that the handle on the wringer of this bucket was loose from the holder, inasmuch as a bolt had been removed or lost out, and this pipe — I believe probably it was a half-inch pipe — which was used as a handle was easily pulled out, and William B. Moore admitted to me that he took the handle off the wringer and struck Mr. Orman.”
According to the witness, as punishment, Moore was placed in solitary confinement.
Meaning that the judgment of the court would direct that the sentences on the several charges, if appellant were found guilty, would run consecutively, rather than concurrently.
Certainly, the court considered that Orman was represented by Scales, and we think this representation was established by the evidence at the hearing.
and
. Our emphasis. | [
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John B. Robbins, Judge.
Appellant Gary Wayne Strickland appeals his conviction for possession of marijuana with intent to deliver and revocation of his probation with regard to a drug-related offense. These proceedings were consolidated in a simultaneous bench trial and revocation hearing. On appeal, appellant argues that the trial court erred when it denied his motion to suppress the marijuana found in an apartment in which appellant claimed to live. The State argues that the suppression issue is not preserved for appellate review, or alternatively that appellant’s argument has no merit. We affirm.
We first consider whether this point on appeal is preserved for our review, and we conclude that it is. The chronology of events explains our conclusion. On October 15, 2001, a pretrial hearing was conducted, and during that hearing, defense counsel agreed to a consolidated hearing of the trial and revocation but specifically requested that a hearing on his motion to suppress be heard first. The fofiowing discussion took place:
Prosecutor: And, Judge, I just ask we take up the revocation, the new charge, and the suppression all at that one hearing will be the easiest way to do it. I would — unless Mr. Shaw’s got a problem with it.
Defense Counsel: There won’t be a problem. There won’t be any problem with that. It’s •— it’s just a standard motion to suppress based on the ownership of the residence and the fact that he didn’t live there, and it’ll be that sort of thing.
The Court: Okay. Well, you get her — you get her filed, and we’ll take her up.
Defense Counsel: Okay.
Appellant filed the motion to suppress on October 25, 2001. The bench trial and revocation hearing were conducted on November 16, 2001.
The evidence presented to the trial judge is summarized as follows. Appellant’s probation officer, Dana Otto, was checking on probationers who lived in the Hogan Apartments in Conway, Arkansas, when she observed appellant outside the apartments in a car. As a probationer, appellant was required to keep law enforcement notified of his address and to permit a probation officer to visit him at his home or elsewhere. Otto stopped to talk to appellant, and appellant informed Otto that he lived there. Otto recalled that on probation reports appellant had a different address in Conway. Otto asked for permission to search the apartment, and appellant gave verbal consent.
Upon entering the apartment, Otto asked where appellant’s belongings were, and appellant pointed to the bedroom. Appellant did not have a shirt on, so in compliance with Otto’s request to put one on, he retrieved one from a closet in the bathroom, where men’s shirts were hanging. A search of the closet followed, which revealed approximately one-fourth pound of marijuana. Appellant told Otto that his girlfriend lived in the one-bedroom apartment.
Appellant’s girlfriend, LaTrelle Stafford, showed up at the apartment about forty-five minutes later. Stafford gave a statement to police indicating that appellant “lived with me at my apartment ... for three months.” In her testimony before the trial judge, Stafford stated that appellant “stayed there off and on.” Stafford verified, in fine with her statement to the police, that appellant kept his belongings in the bathroom closet and that the marijuana found in the closet was not hers. Stafford also stated that her children were adults and that they could visit, but that they did not have a key to her apartment.
After the State had presented its case and rested, appellant asked the trial court to rule on his motion to suppress and also moved to dismiss. Appellant argued that he could not consent to the search of his girlfriend’s apartment. The State objected on the basis that the exclusionary rule did not apply to the revocation case and that there was no bad faith on the part of the officers to provide an exception to that rule. As to the substantive crime, the State asserted that appellant either lived in the apartment and possessed authority to consent or did not live there and had no standing to challenge the search. The trial judge denied the motion to suppress, finding that appellant had the apparent authority to con sent to the search. The defense then rested. Thereupon, the trial judge found appellant guilty of possession of marijuana with intent to deliver and revoked his probation.
The State submits that appellant failed to renew his motion to suppress at the beginning of the trial and hearing, and that this failure results in a waiver of this issue on appeal. Generally speaking, in order to preserve an issue for appeal, the appellant must make an objection contemporaneously with the alleged error. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). The supreme court has specifically addressed preservation of a suppression issue when the evidence is presented in a bench trial. If a motion to suppress is orally renewed at the beginning of a bench trial, and the trial court agrees to consider the motion to suppress at the same time it considers the evidence, there is no risk that the court will be unfamiliar with the nature of the objection. Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998). Under these circumstances, a contemporaneous objection is not required in order to preserve the issue for appeal. See id. The State argues that appellant’s failure to stricdy comply with Stewart v. State, supra, results in failure to preserve the issue. We disagree with the State.
In the present appeal, it was at the State’s suggestion in a pretrial hearing that the motion to suppress be considered at the consolidated trial and hearing, the trial judge agreed to take the issue up at that time, and defense counsel agreed. There was no risk that the trial judge was unfamiliar with the nature of the objection, and the record demonstrates an agreement to consider the motion with the evidence. We hold that what transpired in pretrial accomplished what the holding in Stewart v. State, supra, required. See also Cole v. State, 68 Ark. App. 294, 6 S.W.3d 805 (1999) (holding that this same issue was not preserved where there was no evidence of record that the trial court and counsel agreed to have the suppression motion heard simultaneously with the State’s evidence).
On the merits, the trial judge did not clearly err in denying the motion to suppress. We review a trial judge’s ruling on a motion to suppress by making an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998).
Appellant acknowledged to the trial judge that “the exclusionary rule may not apply to probation violations” but argued that it should apply on the substantive charge for which he was being tried. Appellant argues on appeal, as he did to the trial judge, that he did not possess apparent or actual authority to consent to the search of his girlfriend’s apartment, such that the evidence gained in that search should have been suppressed. The State counters that appellant either (1) did not live at the apartment and thus had no expectation of privacy to protect by the Fourth Amendment, or (2) had apparent authority to permit the officers to search.
The consent justifying a search and seizure can only be given to search premises “by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent.” Ark. R. Crim. P. 11.2 (2002). The pertinent question is whether the one giving consent possesses common authority or other sufficient relationship to the premises. Grant v. State, 261 Ark. 50, 589 S.W.2d 11 (1979).
Appellant argues that his consent must be analyzed as a third-party consent, citing to Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001). Appellant’s effort to claim himself as a “third party” as in Goodman v. State, supra, is misplaced. Third-person authority may be based upon the fact that the third person shares with the absent target of a search a common authority over, general access to, or mutual use of the place or object sought to be inspected under circumstances that make it reasonable to believe that the third person has the right to permit the inspection in his own right and that the absent target has assumed the risk that the third party may grant this permission to others. United States v. Matlock, 415 U.S. 164 (1974). The present appeal does not have an absent target, as Ms. Stafford was not subject to an unlawful search nor were her personal Fourth Amendment rights affected. See also Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995). The present appeal concerns appellant’s consent to enter a residence that he claimed as his own and appellant’s consent to search his personal effects, resulting in appellant being charged with possession of the contraband.
Viewing the totality of the circumstances, we cannot say that the trial court erred in finding that appellant had apparent authority to consent to the search. Even though Officer Otto expressed surprise at appellant’s claim to five in the apartment, it was appellant who represented himself to be a resident. Appellant was subject to visits by probation officers as part of his probation conditions. The officers followed appellant into the apartment with his verbal consent, appellant pointed to the bedroom as containing his things, he obtained a shirt from the bathroom closet that contained men’s clothing, the officers asked appellant if he kept his personal belongings there, appellant answered in the affirmative, and the search that followed led to him being charged. We cannot conclude that the trial judge clearly erred in finding the officer’s search valid based upon appellant’s representations.
Affirmed.
Griffen and Crabtree, JJ., agree.
We do not consider appellant’s argument on appeal that the officer’s bad faith would render the exclusionary rule applicable to the probation revocation because this argument was not raised to the trial court nor ruled upon. One may not change the grounds for an objection or motion on appeal, but is instead bound by the scope and nature of the argument made at trial. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). | [
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Andree Layton Roaf, Judge.
Ross Chadwell appeals from a Benton County Circuit Court order revoking his suspended sentence and sentencing him to ten years in the Department of Correction. On appeal, Chadwell argues that (1) the trial court erred in sentencing him to ten years when two years of his ten-year suspended sentence had elapsed, and (2) the trial court lacked authority to sentence him because the ten-year suspended sentence was illegal on its face and in violation of the statute prohibiting suspension of sentences of habitud offenders. We, agree that this case should be reversed and remanded on Chadwell’s first point, and affirm on the second point.
Ross Chadwell pled guilty in 1992 to several drug-related charges. Chadwell was sentenced to twenty years’ imprisonment with ten years suspended. Chadwell was paroled in 1998. He was arrested in March 2000 for violating the terms of his suspended sentence.
At the revocation proceeding, Chadwell argued to the trial court that it was prohibited from amending or modifying his sentence because it was put into execution back in 1992. Chadwell also argued that the original sentence imposed was illegal because the trial court was not authorized to suspend a portion of his sentence due to his habitual-offender status. Chadwell alternatively argued that, if the trial court granted the revocation, he could be sentenced to a maximum of eight years because his ten-year suspended sentence began to run when he was paroled two years earlier. The trial court found that Chadwell had violated the conditions of his suspended sentence and sentenced him to ten years’ imprisonment.
On appeal, Chadwell first argues that the trial court erred in sentencing him to an additional ten years’ imprisonment; he contends that his suspended sentence began to run two years earlier when he was paroled and that the trial court was thus limited to sentencing him to the amount of time remaining on his suspended sentence. We agree.
Arkansas Code Annotated section 5-4-307(c) states that “[i]f the court sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment.” Ark. Code Ann. § 5-4-307(c) (2001) (emphasis added); see also Vann v. State, 16 Ark. App. 199, 698 S.W.2d 497 (1985) (holding that the suspended portion of a sentence of imprisonment commences to run upon release from confinement); Matthews v. State, 265 Ark. 298, 578 S.W.2d 30 (1979) (holding that the trial court could revoke a five-year suspended sentence only during those five years, which began upon release from incarceration, and not after the suspended sentence is completed).
Where the trial court imposes a sentence for a specific number of years, and suspends a portion of it, the sentence has been imposed, and the suspended portion has been referred to as a suspended execution of sentence. See Jones v. State, 52 Ark. App. 179, 918 S.W.2d 766 (1996). The suspended portion of Chadwell’s sentence commenced running when he was released from confinement, and the trial court did not have the authority to require Chadwell to serve more than the remainder of his original sentence. See Lyons v. State, 35 Ark. App. 29, 813 S.W.2d 262 (1991). The record before us does not indicate precisely how much time remained in Chadwell’s ten-year period of suspension. Accordingly, we reverse and remand for entry of a judgment with a sentence of no more than ten years less the length of time from Chadwell’s release in 1998 until his revocation.
Chadwell also argues that the trial court erred in sentencing him to an additional ten years because the original sentence imposed in 1992 was illegal on its face. He asserts that the trial court lacked the authority to suspend any portion of his sentence because he was an habitual offender. He asks only that this case be remanded for resentencing. Although the State has conceded error on this point, we do not agree that the trial court erred in this respect.
At the time of his plea and sentencing in 1992, Chadwell was an habitual offender with two or more prior felony convictions. The version of Ark. Code Ann. § 5-4-104(e)(4) in effect at the time Chadwell’s crimes were committed provided that “[t]he court shall not suspend imposition of sentence, place the defendant on probation, or sentence him to pay a fine if it is determined, pursuant to § 5-4-502, that the defendant has previously been convicted of two or more felonies.” Ark. Code Ann. § 5-4-104 (1987) (emphasis added).
The State concedes that the trial court erred in suspending a portion of Chadwell’s sentence; it relies on State v. Freeman, 312 Ark. 34, 846 S.W.2d 669 (1993), in which the supreme court reversed, holding that the trial court did not have authority to suspend any part of an habitual offender’s minimum sentence (emphasis added). In Freeman, the mandatory sentence range was six to twenty years, and the trial court had sentenced Freeman to the minimum of six years but suspended imposition of five of those years. The State further relies on Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985), in which the supreme court affirmed the trial court’s correction of the appellants’ sentences. The appellants pled guilty to escape from the Department of Correction, and the trial court had suspended the sentences of both appellants. The court later imposed six and eight year sentences when the State requested reconsideration based upon the statutory version of Ark. Code Ann § 5-4-104(e)(4) then in effect. The supreme court affirmed, stating that the sentences of only probation were beyond the trial court’s authority and were void, and that a trial court can correct an illegal sentence even though partially executed.
We do not agree that the statute or two case authorities relied upon by the State mandate reversal of this case. Here, the trial court was authorized to sentence Chadwell as an habitual offender to a range of ten to twenty years’ imprisonment. The court sentenced Chadwell to ten years’ imprisonment, the statutory minimum. Thus, the court did not lack authority to impose an additional ten-year suspended sentence, pursuant to Ark. Code. Ann. § 5-4-104, State v. Freeman, supra, which involved a sentence of imprisonment below the minimum, or Lambert v. State, supra, which involved no sentence of imprisonment at all.
Reversed and remanded in part; affirmed in part.
Neal and Vaught, JJ., agree. | [
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Josephine Linker Hart, Judge.
After a jury found appellant, Travis M. Hollins, guilty of aggravated assault and four counts of second-degree unlawful discharge of a firearm from a vehicle, he was sentenced to a total of twenty years’ imprisonment. On appeal, he first argues that, prior to trial, the trial court should have dismissed three of the four counts of unlawful discharge of a firearm because the four shots he fired from the vehicle were part of a continuing course of conduct and constituted only one offense. Second, he argues that, because he fired the four shots from his vehicle in self-defense, the jury should have been instructed on and allowed to consider the defense of justification with regard to those four counts. We affirm.
Prior to trial, appellant argued that the trial court should dismiss three of the four counts of unlawful discharge of a firearm from a vehicle. In support of his argument, he cited Ark. Code Ann. § 5-1 — 110(a)(5) (Repl. 1997), which provides that a person may not be convicted of more than one offense if “[t]he conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.” He argued that the four shots he fired constituted a continuous and uninterrupted course of conduct and thus constituted only one offense. In response, the State argued in part that appellant’s motion was an attempt to seek a directed verdict in advance and thus procedurally inappropriate. The court denied the motion, stating that the issues could go to the jury “and then it can be a court decision whether or not some of them are double jeopardy. . . .” The issue, however, was never raised again.
The State then presented testimony establishing that, while appellant was driving a vehicle in circles in a parking lot and an adjacent grassy area, he fired four shots .with a pistol. In close proximity to the parking lot were basketball courts, a boxing gym, a playground, and a church. Other persons were present at these locations, including the victim of the aggravated assault, Herman Madison. During the shooting, Madison and a small child took cover behind Madison’s truck. Two of the four shots hit the truck and the other two were unaccounted for. Appellant also testified and contended that he had fired shots at Madison in self-defense because Madison had approached him while holding a bat.
The trial court correctly refused to dismiss the charges prior to trial. While the subsection of the statute relied upon by appellant prohibits conviction of more than one offense in certain circumstances, “[w]hen the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense.” Ark. Code Ann. § 5-1-110(a) (Repl. 1997)(emphasis added). Quoting from this portion of the statute, the Arkansas Supreme Court has held that because it is not a violation of the prohibition against double jeopardy to charge and prosecute on multiple and overlapping charges, an appellant cannot raise any double-jeopardy challenge until he has actually been convicted of the offenses. Brown v. State, 347 Ark. 308, 316-17, 65 S.W.3d 394, 399-400 (2001). In Brown, the court held that a double-jeopardy motion made in the form of a directed-verdict motion was premature. Appellant’s pretrial motion for dismissal of the charges was likewise premature, as the State could properly charge and prosecute appellant on multiple and overlapping charges. Following his conviction on the four counts, appellant never argued that three of the four counts should have been dismissed; consequently, the argument was not preserved for appellate review. Id. We affirm on this point.
Next, appellant argues that because he alleged that he was acting in self-defense when he fired the four shots from the vehicle, the jury should have been instructed on and allowed to consider the defense of justification as to the four counts of unlawful discharge of a firearm. We disagree.
Appellant was charged with and ultimately convicted of four counts of unlawful discharge of a firearm from a vehicle. “A person commits unlawful discharge of a firearm from a vehicle in the second degree if he recklessly discharges a firearm from a vehicle in a manner that creates a substantial risk of physical injury to another person or property damage to a home, residence, or other occupiable structure.” Ark. Code Ann. § 5-74-107(b)(l) (Repl. 1997). Although a person may be justified in the use of physical force or deadly physical force under certain circumstances, see Ark. Code Ann. §§ 5-2-605 to -621 (Repl. 1997), when “he recklessly or negligently injures or creates a substantial risk of injury to a third party, the justification afforded ... is unavailable in a prosecution for such recklessness or negligence toward the third party.” Ark. Code Ann. § 5-2-614(b) (Repl. 1997). Consequently, appellant could not pose as a defense his argument that he was justified in creating a substantial risk of physical injury.
Appellant acknowledges in his brief that § 5-2-614(b) is controlling, but nevertheless contends that the statute, in its application here, leads to an unfair result. He does not, however, present this court with any argument or authority providing a means by which this court may disregard the statute’s plain language, and we are not aware of any such controlling authority. Given this absence of any argument or authority, we affirm. See Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606, 609 (1977) (holding that a claim of error unsupported by citation to authority or convincing argument will be considered on appeal only if it is apparent without further research that the argument is well taken).
Affirmed.
Stroud, C.J., and Griffen, J., agree. | [
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John E. Jennings, Judge.
Arkansas Oklahoma Gas Corporation appeals the Board of Review’s decision that its former employee, Delores Gross, was eligible for unemployment compensation benefits even though she had been made an offer of employment. In awarding benefits, the Board found that the job offered Ms. Gross was unsuitable because accepting it would effectively require her to resign from a labor union. We agree with appellant that the Board’s decision is contrary to the law, and we reverse and remand.
Ms. Gross had been employed by appellant for twenty-one years and was a union member of Teamsters Local 373, which had negotiated a collective bargaining agreement with appellant. For nineteen years, Ms. Gross worked as a meter reader, a job that is classified as a union “bargaining unit” position. In 1999, she became a dispatcher, which was also a bargaining unit position, but she was disqualified from that job after eight months due to unsatisfactory performance. Thereafter, she accepted a job from appellant in the “GPS” program where she was responsible for locating and charting customer meters on a map. This job was a temporary position that would come to an end when the project was completed. Although this job was a non-union, or a “non-bargaining unit” position, Ms. Gross was considered “on loan” from the union in this temporary assignment, which allowed her to retain job-bidding rights for bargaining unit positions without losing her years of seniority.
The GPS position expired on September 11, 2001. Ms. Gross had not bid on any of the thirty-five bargaining unit positions that had become available during the eighteen months she worked in the GPS program. When the GPS assignment ended, there were no bargaining unit positions open. Appellant offered Ms. Gross a job as an overdue bill collector, a non-bargaining unit position. This job came with a pay increase of two cents an hour and provided other employee benefits, including participation in the company’s 401 (k) plan. Ms. Gross declined to take this job. She explained that, because it was non-union, she would be left without union protection such that she could be fired without cause and without recourse to union grievance procedures. Taking the job would also result in the loss of her seniority in the job-bidding process. Although she would remain eligible to bid on bargaining unit positions within the company, she would not be hired for the job if another union employee with greater seniority bid on the position.
The fundamental purpose of our employment security law is to aid those persons who find themselves unemployed through no fault of their own. Ark. Code Ann. § 11-10-102(3) (Repl. 2002). In keeping with that purpose, an individual is disqualified for benefits if he fails without good cause to accept available suitable work when offered. Ark. Code Ann. § 11-10-515(a)(1)(B) (Repl. 2002). The law further provides that a prospective job is not suitable, “if as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.” Ark. Code Ann. § 1 l-10-515(d)(3) (Repl. 2002). The Board in this case found that the job as collector was unsuitable because accepting it with the. loss of seniority and union protection was tantamount to requiring Ms. Gross to resign from the union.
The issue is controlled by the supreme court’s decision in Thornbrough v. Stewart, 232 Ark. 53, 334 S.W.2d 699 (1960). There, the claimant was an unemployed union member who refused to accept non-union work because his union might fine or expel him for taking a job that paid less than the union scale. The court rejected the claimant’s argument that he had good cause to refuse the job or that he was protected from disqualification under the provision of the statute, cited above, that is now codified as Ark. Code Ann. § 9-10-515 (d)(3). The court held that the threat of sanction by union rules did not render the job unsuitable under the statute and that the claimant forfeited his right to receive unemployment compensation by refusing to accept the job. In so holding, the court accepted the view that the statute did not intend union-made rules to determine the suitability of offered employment.
Because it was a case of first impression, the Thornbrough court reviewed decisions from other jurisdictions in adopting what it called the “universally” accepted rule. The court particularly relied on the reasoning in Chambers v. Owens-Ames-Kimball Co., 67 N.E.2d 439 (Ohio 1946). There the worker had been a union member for twenty-seven years, and when unemployed he declined a non-union job because it might have resulted in disciplinary action by his union. The worker argued that the Ohio statute, which is similar to our own, did not bar benefits to an unemployed worker who refuses employment which might result in the denial of his right to retain union membership because of prospective disciplinary action by the union. The court disagreed, saying:
Furthermore, the interpretation of appellee would make the operative effect of a refusal to work depend entirely on the whim or caprice of an organization to which the applicant for unemployment compensation might belong. . . . Under such an interpretation, the right of the applicant for unemployment compensation would not be fixed or determined by the provisions of the statute but by rules adopted by organizations in which the applicant has membership. Such interpretation of the statute, and as a consequence its administration in conformity to such interpretation, is clearly untenable.
Id. at 442. The court also determined that the word “condition” used in the statute should not be interpreted to mean the “result” of accepting employment, but that the term meant “requirement” and referred to restrictions contained in the offer of employment made by the employer. Finally, the court observed that an award of benefits to a union worker who refuses an otherwise suitable, but non-union job, would discriminate against non-union workers who would be disqualified for refusing to accept the same job:
Under appellee’s interpretation of the statute, an unemployed nonunion workman would be obliged to accept the same job which the appellee refused to accept and would be required to work without right to participate in the unemployment compensation benefits. On the other hand, the appellee could refuse to accept the same job at the same wages and by reason of such refusal qualify himself to receive benefits as an unemployed workman. In our view, such an interpretation of the statute would not permit it to operate in a constitutional manner. It would result in discrimination and injustice. The law must do justice. There can be no valid classification of persons based upon membership or nonmembership in a labor organization, which would operate to differentiate rights to receive benefits under the unemployment compensation statute.
Id. at 443.
The Thornbrough court also cited with approval the decision in Barclay White Co. v. Unemployment Compensation Board of Review, 50 A.2d 336 (Pa. 1947). In that case, the worker had been a union member for over thirty years, and he refused non-union employment because taking the job might have subjected him to suspension or expulsion from the union and would result in the loss of all membership advantages, including sickness, old age, and death benefits. As in Chambers, supra, the court concluded that the language “condition of being employed” refers to a condition, made in the offer of employment by the employer, requiring the prospective employee to resign from a labor organization. In denying benefits, the court stated:
The public policy of the Commonwealth does encourage membership in labor organizations but retention of membership therein is not a surrender to circumstances of the kind and quality which will turn voluntary unemployment into involuntary employment. It would do great violence to the clear and unequivocal wording of the statute to hold that a labor union or any other organization can control payments of unemployment benefits to its members by merely forbidding them to work at wages less than those set by it, or with certain persons, or at certain places, or under certain conditions. If eligibility under such conditions is to be added to the Act, that must be done by the legislature, and not the Courts. ... To hold otherwise is the equivalent of saying that a union may adopt its own definition of suitable work and determine, by rule and bylaw, what does and does not constitute good cause for refusing referred employment.
Id. at 341.
The court in Thornbrough also relied on the decision in Bigger v. Unemployment Compensation Commission, 53 A.2d 761 (Del. 1947). There, the claimant refused a non-union job because his union forbid its members from working at non-union jobs under possible penalty of expulsion. The court disagreed with the claimant’s argument that accepting the job was the equivalent of requiring him to resign from the union. The court observed:
In the body of the Act, the Legislature has defined with some care the standards for determining who is entitled to benefits from the reserve fund created. Nothing in the Act suggests that a union or a group of employers or any one else may add to, or subtract from the standards laid down by the Act itself. From what has been said, it is clear that the Legislature had no thought of strengthening or of weakening the power of unions. Its purpose was to protect all workmen involuntarily employed. Membership in a union gives an individual no greater rights under the Act than he otherwise has. Likewise, a group of individuals cannot secure higher privileges merely by adopting a rule which binds themselves to a certain course of conduct. We cannot agree with a theory which would have the effect of substituting a union rule for a statutory requirement. If a man wants to benefit by the Act, he must comply with its provisions; his unemployment is not involuntary if he refuses a job without good cause; good cause means those reasons contained in the Act.
Id. at 564-565.
The rule espoused by these courts and the court in Thornbrough remains the majority view. See Wentz Heating & Air Conditioning Co. v. Kiene, 274 N.W.2d 547 (Neb. 1979); Adams v. Auchter Co., 339 So. 2d 623 (Fla. 1976); In re Beatty, 210 S.E.2d 193 (N.C. 1974); Miville v. Maine Employment Security Comm’n, 219 A.2d 752 (Me. 1966); Norman v. Employment Security Agency, 356 P.2d 913 (Idaho 1960); State Department of Industrial Relations v. Harbin, 365 So.2d 313 (Ala. Civ. App. 1978); Lemelin v. Administrator, 242 A.2d 786 (Conn. Super. Ct. 1968). Accord Brown v. Division of Employment Security, 973 S.W.2d 199 (Mo. Ct. App. 1998).
In addition, the same rule applies where there is a collective-bargaining agreement negotiated between the employer and labor union. In Norman v. Employment Security Agency, 356 P.2d 913 (Idaho 1960), the court accepted the reasoning of its appeals examiner who said:
To permit work to be deemed unsuitable because of the provisions of such a [union] contract would be to allow unions and employers to dictate the conditions under which the Agency would or would not pay benefits. The matter of a union-negotiated contract is one of concern to the employer and the union. No union contracts can amend the law of the State of Idaho so as to grant its members privileges not contemplated by the law.
Id. at 918. See also In re Beatty, 210 S.E.2d 193 (N.C. 1974); Mills v. Mississippi Employment Security Comm’n, 89 So. 2d 727 (Miss. 1956).
In the case at bar, Ms. Gross rejected the offer of nonunion employment because of the loss of union protection and seniority. The loss of these privileges, whether by union rule or a provision in a collective-bargaining agreement, does not provide good cause for rejecting the job and does not render the offered employment unsuitable. Otherwise, there is no evidence in the record that she was required by appellant to resign from the union before accepting the job as collector. On the contrary, the evidence was that she remained eligible to bid on union positions while holding this job.
While we are entirely in agreement with the dissenting judges’ view of the importance of our fidelity to the standard of review in these cases, we need only say that the substantial-evidence standard is applicable only when the issue is one of fact. The rule has no application when the issue is one of law, as it is in the case at bar.
There was testimony from Ms. Gross that being a collector was a less than desirable job. Because the Board made no finding on the issue of suitability generally, we remand for a decision on this issue. Hays v. Director, 251 Ark. 659, 473 S.W.2d 926 (1971).
Reversed and remanded.
Pittman, Robbins, Bird, Vaught, and Roaf, JJ., agree.
Hart, Griffen, and Neal, JJ., dissent. | [
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Per Curiam.
The appellant, Janice Belcher, has moved for leave to file a motion for new trial based upon newly discovered evidence, pursuant to Ark. R. Civ. P. 60(c)(1). Belcher asks that her appeal be held in suspension while the trial court entertains the motion for new trial.
The trial court has the discretion to grant a new trial pursuant to Rule 60(c)(1) for up to one year after discovery of the grounds or one year after a judgment is filed with the clerk of the court, whichever is earlier. In this instance, the judgment appealed was entered on June 7, 2002. The trial court retains the ability to modify, set aside or vacate its judgment to allow a new trial even after the case has been appealed to the supreme court or court of appeals and affirmed. Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987); Garrett v. Allstate Ins. Co, 26 Ark. App. 199, 762 S.W.2d 3 (1988).
This court denied the appellant’s identical motion for remand in Garrett v. Allstate Ins. Co., supra, citing that the briefs had all been filed and the case was ready for decision as a basis for the denial. The case before us is distinguishable in that no briefs have yet been filed, and we conclude based on the allegations raised that the trial court should be given the opportunity to act on the motion for new trial prior to submission of the case. Accordingly, we remand this case to the trial court to decide Belcher’s motion for new trial, and direct that this appeal be held in abeyance pending the trial court’s decision.
Motion granted.
Robbins, J., not participating. | [
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Robert J. Gladwin, Judge.
The appellant, Dave French, initiated this litigation in the Benton Municipal Court by filing a small-claims action for legal malpractice against the appellee, Doyle Webb. The municipal court ruled in favor of Webb.
French appealed the judgment to the Saline County Circuit Court. The circuit court granted summary judgment in favor of Webb, reasoning that the municipal court lacked subject-matter jurisdiction and, therefore, so did the circuit court. French appeals this ruling, arguing that the circuit court erred in granting summary judgment based on lack of subject-matter jurisdiction. We disagree and affirm.
French, a heating and air contractor, contracted with a general contractor, Metcon, to do work on property owned by Pen Chen Kung for which he was to be paid $10,338.19. He received partial payment of $5000 and submitted a final bill to Metcon on December 12, 2001. Metcon and Kung became involved in a dispute, and when French approached Kung about being paid, Kung referred French to his attorney, Webb.
French and Webb met at Webb’s office. French alleges that he inquired about Webb filing a lien on the property for him and that Webb assured French that he would be paid. Webb denies that this occurred. Webb stated that he advised French that he could not represent French because he represented Kung and that French should obtain other counsel.
On January 26, 2000, French filed suit against Webb in the small-claims division of the Benton Municipal Court. On the standard small-claims complaint form, French listed the nature of the claim as malpractice. In the body of the complaint, French alleged that Webb had intentionally misled him.
On July 31, 2000, an order was entered, stating:
Now on this 9th day of june, 2000, this matter comes on for hearing. The plaintiff Dave E. French appearing in person, and the defendant, Doyle L. Webb, also appearing in person, and the Court does find: 1. That the court finds for the defendant. It is so ordered. Signed Judge Robert Tolson.
French appealed this order to circuit court. The circuit court granted Webb’s motion for summary judgment, ruling that it lacked subject-matter jurisdiction because the municipal court lacked subject-matter jurisdiction and that the true amount in controversy exceeded the municipal court’s $5000 jurisdictional limit.
The jurisdiction of municipal courts is governed by Ark. Code Ann. § 16-17-704 (Repl. 1999):
(a) The municipal court shall have original jurisdiction, coextensive with the county wherein the court is situated, over the following matters:
(1) Exclusive of justices of the peace and of the circuit court, over violations of all ordinances passed by the city council of the city or quorum court of the county wherein the municipal court is situated;
(2) Exclusive of justices of the peace in townships subject to this subchapter and concurrent with the circuit court, over misdemeanors committed within the county and the issuance of search warrants within the county;
(3) Concurrent with the justices of the peace, and exclusive of the circuit court, in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars ($100), excluding interest;
(4) Concurrent with the circuit court in matters of contract where the amount in controversy does not exceed the sum of five thousand dollars ($5,000), excluding interest;
(5) Concurrent with the circuit court in actions for the recovery of personal property where the value of the property does not exceed the sum of five thousand dollars ($5,000); and
(6) Concurrent with the circuit court in matters of damage to personal property where the amount in controversy does not exceed the sum of five thousand dollars ($5,000), excluding interest.
(b) Municipal courts shall have jurisdiction to sit as examining courts, and to commit, discharge, or recognize offenders to the court having jurisdiction of the trial, and to bind persons to keep the peace or behavior.
(c) The jurisdiction of the courts as provided in this sub-chapter shall be coextensive with the county. In counties having two (2) judicial districts, the jurisdiction shall be limited to the district in which the court is situated.
When the municipal court lacks subject-matter jurisdiction of the original cause, then the circuit court acquires none on appeal. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). Although French styled his cause of action “malpractice” in the small-claims complaint, he argues on appeal that the complaint was based on breach of contract and promissory estoppel. The complaint alleges no facts to support the argument that French and Webb entered into a contract. A careful reading of both the original complaint and the amended complaint filed in circuit court shows that French’s claim is actually based on fraud: his grievance is that Webb misled him by telling him there was no need to file a lien and promising him that he would be paid. Fraud is an action in tort and an action over which the municipal court lacks subject-matter jurisdiction. See Ark. Code Ann. §16-17-704. Therefore, the circuit court also lacked subject-matter jurisdiction on appeal.
On appellate review, we determine if summary judgment was proper based upon whether the evidence presented by the movant left a material question of fact unanswered. City of Dover v. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000). The defense of lack of subject-matter jurisdiction may, at the option of the pleader, be made by motion. Ark. R. Civ. P. 12(b)(1).
Under some circumstances, a summary-judgment motion is an extension of a motion to dismiss for failure to state a claim. In Joey Brown Interest, Inc. v. Merchants National Bank of Fort Smith, 284 Ark. 418, 683 S.W.2d 601 (1985), the court held it was appropriate for the trial court to grant summary judgment on a failure to state a claim, which would be more appropriately pled as an Ark. R. Civ. P. 12(b)(6) motion to dismiss due to failure to state facts upon which relief can be granted. Subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by the appellate court. Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001). Although the motion for summary judgment in this case would have been more appropriately made as a Rule 12(b)(1) motion to dismiss for lack of jurisdiction over the subject matter, the distinction is immaterial because the question was the same: whether the appellant had no claim due to lack of subject-matter jurisdiction. See Joey Brown Interest, 284 Ark. 418, 683 S.W.2d 601 (1985). Because the action was for fraud, over which the municipal court had no jurisdiction, the circuit court’s finding that it too lacked subject-matter jurisdiction is affirmed.
Because the issue of subject-matter jurisdiction is dispositive in this case, we need not address appellant’s contention that the court erred in granting summary judgment due to the amount in controversy exceeding the jurisdictional limit.
Affirmed.
Roaf and Neal, JJ., agree. | [
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Carleton Harris, Chief Justice.
This is an appeal by Betty Fortin from a judgment entered by the Washington County Circuit Court. Mrs. Fortin is the mother of Dianna Lynn Giurbino and Sandra Kay Giurbino, minors who were originally taken from her custody on August 21, 1969, and a temporary order was entered placing custody with Children’s Services of the State Department of Welfare. On September 18 the juvenile court found these children (and another not involved in the present litigation) to be dependent and neglected and Children’s Services was ordered to place Dianna Lynn with Mr. and Mrs. Mike Reeves of Springdale, and Sandra Kay with Mr. and Mrs. George Parrish of Springdale, the children to remain with these custodians (commonly called foster parents) until further orders. This order was signed by Vol B. Lester, County Judge of Washington County and Bob I. Mayes, Referee, Juvenile Court. On April 22, 1971, the two children were placed in the full and legal custody of Mr. and Mrs. Reeves and Mr. and Mrs. Parrish, respectively, the order being signed by Bob I. Mayes, Judge, Washington County Juvenile Court. On January 10, 1972, subsequent to a filing of a motion by Mrs. Fortin to set aside the April 22, 1971 orders, Mayes found that the April 22, 1971 orders were entered without proper notice having been served upon Mrs. Fortin; that this constituted a denial of her legal rights or due process and an order was entered on January 27, 1972, setting aside the April 22 orders and reinstating the September 18, 1969 order.
On February 9, 1972, Mrs. Fortin filed a petition, asserting that the original order (of September 18, 1969) was interlocutory in nature, alleged changed circumstances, and sought permanent custody of the children. On April 20, 1972, Mayes granted the petition and restored custody to Mrs. For-tin, but this order was summarily set aside because the attorney for appellees and appellees had not received notice.
On July 25, 1972, the custody of the little girls was again placed respectively with Mr. and Mrs. Reeves and Mr. and Mrs. Parrish. This order was signed by Vol B. Lester, Washington County Judge and Bob I. Mayes, Referee, Washington County Juvenile Court. From this order, appellant appealed to the Washington County Circuit Court. In that court, Mrs. Fortin filed a motion to quash, set aside, and hold for naught all orders entered by the referee, asserting that the appointment of the referee was contrary to the Constitution of Arkansas, and that any order entered by him was without force and effect and unconstitutional; that Ark. Stat. Ann. §§ 45-202.1 and 45-202.2 (Supp. 1973) were unconstitutional and that delegation of judicial duties of the county judge to a referee is contrary to Article 7, Sections 28 and 29 of the Arkansas Constitution. This motion was sub sequently denied, the court holding that it was untimely filed on all orders previously issued by the Washington County Juvenile Court except as to the July 25, 1972 order; further, that that order recited proper jurisdictional facts on its face and there were no facts before the court indicating improper jurisdiction. Thereafter, on May 24, 1974, the court conducted a de novo trial on the question of whether the juvenile court order of July 25, 1972 should be set aside, the court hearing numerous witnesses. Following the conclusion of the trial, the following pertinent findings were made:
“1. That the Court has jurisdiction of the parties and subject matter.
2. That the Order of the Juvenile Court of Washington County, dated July 25, 1972, is valid and proper.
3. That Betty Giurbino Fortin is the natural mother of Sandra Kay Giurbino and Dianna Lynn Giurbino.
4. That in addition to the consideration of neglect and/or delinquency, the best interest and welfare of the children should also be considered in awarding their custody. (Boatwright vs. Pulaski County Juvenile Court, 250 Ark. 138.)
5. That Act 404 of 1969 authorizing County Court to appoint a Referee to hear juvenile cases involving neglected and/or delinquent is constitutional.
6. That Act 215 of 1911, as amended by Act 420 of 1917 of the Statutes of Arkansas conferring jurisdiction on the County Court of juveniles is constitutional (Ex Parte King, 141 Ark. 213).
7. That the Order of the Washington County Court dated August 1, 1969, appointing Bob I. Mayes as Referee for the Juvenile Court of Washington County, Arkansas, under provisions of Act 404 of the Acts of Arkansas for 1969 is valid and proper.”
Thereupon, the court vested custody of Sandra Kay Giurbino in appellees Parrish and the custody of Dianna Lynn in appellees Reeves until further orders of the Juvenile Court of Washington County. From the judgment so entered, appellant brings this appeal. For reversal, several points are asserted, which we proceed to discuss, some being related and discussed together.
It is first contended that all orders entered by the referee are unconstitutional and without force and effect for the reason that Ark. Stat. Ann. (Supp. 1973) §§ 45-202.1 and 45-202.2 are an unconstitutional delegation of judicial power, violating Article 7, §§ 28 and 29 of the Arkansas Constitution. This point, of course, raises a constitutional question, but we have said many times that this court will not decide constitutional questions unless such a decision is necessary to a determination of the pending case. See McLeod, Commissioner of Revenues v. J. E. Dilworth Co. and Reichman-Crosby Co., 205 Ark. 780, 171 S.W. 2d 62, and Holt v. Howard, 206 Ark. 337, 175 S.W. 2d 384, and cases cited therein. Since we are of the view that the constitutional question is not vital to a determination of this litigation, we refrain from making such a determination, as same would be dicta. However, it is necessary that we preliminarily, to a degree, discuss the contention in order to make evident this fact. Appellant first calls attention to Article 7, Section 28 of the Arkansas Constitution of 1874 and emphasizes the last sentence reading, “The county court shall be held by one judge, except in cases otherwise herein provided,” and the case of Nixon v. Allen, 150 Ark. 244, 234 S.W. 45, is cited in support of that assertion. We agree that the constitutional section so provides, and that the case so holds. Appellant’s purpose in citing this provision is that it is contended that Ark. Stat. Ann. § 45-202.1 and § 45-202.2 (Supp. 1973) create a new court to pass on juvenile cases. With this assertion, as hereinafter discussed, we do not agree.
Let it first be said that the General Assembly of 1911 passed Act 215, inter alia, creating juvenile courts, defining dependent, neglected and delinquent children, and vesting jurisdiction in the county courts (§§ 45-201 — 45-206). An attack was made upon this act as being unconstitutional, the argument being that the legislature had created a new court which it had no authority to do under Article 7, Section 1, Arkansas Constitution. In Ex Parte King, 141 Ark. 213, 217 S.W. 465, the act was upheld, this court stating:
“The key note for the construction of this act to determine whether or not it was the purpose of the Legislature to create an independent tribunal with separate powers is found in the second and third sections. The second section confers upon the ‘county courts original jurisdiction in all cases coming within the terms of this act.’ The third section, while designating the court as the ‘Juvenile Court’ and its record as the ‘Juvenile Record,’ expressly declares that this is done ‘for convenience.’
“Construing the act as a whole, we have reached the conclusion that it was not the purpose of the Legislature to create an independent tribunal and to confer upon it judicial powers. The act, therefore, does not offend against article 7, section 1, of our Constitution, which provides that, ‘The judicial power of the State shall be vested in one Supreme Court; in the circuit courts; in county and probate courts, and in justices of the peace.’
“In 7 R.C.L., p. 981, sec. 9, it is said: ‘In most of the jurisdictions in which juvenile court legislation has been enacted, separate and distinct courts have not, however been provided for, but the jurisdiction of the regular courts has been enlarged to cover the matters embraced in the legislation.’ The judicial power conferred by this act, as we construe it, is vested in the county courts.”
The sections here under attack, enacted by the General Assembly as Act 404 of 1969, read as follows:
“45-202.1. Power to appoint referee. — The Judge of the Juvenile Court in each county is hereby given power to appoint a referee who shall have power to hear and pass on all Juvenile cases of girls, and of boys, up to the age of eighteen (18).
“45-202.2. Appeals from referee’s decisions. —Appeals may be taken to the Judge of the Juvenile Court from the decisions of the referee as a matter of right by causing the papers to be lodged with the Judge of the Juvenile Court and within ten (10) days after the decision is made, upon demand, the clerk in charge of the Juvenile Court matters shall at once transmit the same to the Judge of the Juvenile Court.”
The attack upon these sections is twofold, viz-, that the county judge is permitted to delegate his judicial function in violation of Article 7, Section 28 (heretofore quoted), and Section 29 of our State Constitution. It is also argued that the statutes mentioned amount to, in effect, the creation of a new court. From appellant’s brief:
“The Legislature may create a new Court not mentioned or established by the Arkansas Constitution; however, the Legislature may not alter, change, limit, or divide a constitutionally established Court unless the authority to do so is clearly established in the Constitution.”
We do not agree with appellant’s argument. As pointed out in Ex Parte King, supra, no other court was created. The county Court (for convenience, called juvenile court) was simply given the authority to determine cases involving dependent, neglected and delinquent children. Here, in the case before us, likewise, no new court was created; rather, the judge of the juvenile court (county judge) was only given power to appoint a referee to pass on all juvenile cases. The emergency clause of Act 404 of 1969 sets out the purpose in enacting the legislation as follows:
“It is hereby found and determined by the General Assembly of the State of Arkansas that because of the increasing number of youthful offenders that a referee would be an invaluable aid to the speedy administration of justice in the various counties of this State; and that this Act is immediately necessary to permit the appointment of a juvenile court referee in each county in the State.”
Now, there would seem to be but little doubt that the appointment of a referee for the purpose of aiding the juvenile judge by making recommendations for a disposition of particular cases, much in the same manner as a master in chancery, would be entirely valid; in fact, there is no attack on such a function. But appellant says that the powers given in the sections under discussion to the referee are the powers of a court and that Mayes acted in that capacity, in violation of the constitutional sections heretofore mentioned.
Even if we should agree with this contention, nonetheless, we are definitely of the opinion that Mayes was a de facto judge and this premise is based upon the cases of Howell v. Howell and Stevens v. Stevens, 213 Ark. 298, 208 S.W. 2d 22, and Pope v. Pope, 213 Ark. 321, 210 S.W. 2d 319. In 1947, the General Assembly passed Act 42 which divided the chancery court of the first chancery circuit into two divisions, to be known as the first division and second division of the first chancery circuit. The act further provided that the chancellor then in office would be the chancellor of the first division and that the chancellor of the second division would be the “present master in chancery of the chancery court of Pulaski County, who shall hold said office until January 1, 1949. At the general election in November, 1948, there shall be elected a chancellor for said second division of the chancery court, who shall take office January 1, 1949. ***.” The master in chancery was Mrs. Ruth Hale. Thereafter, Judge Hale granted various divorce decrees and her authority was at tacked in the cases just cited. The contention was that, though the General Assembly had the authority to create the second division, it had no authority to name the éhancellor of that division, this being a function of the Executive Department (Governor). By a four to two (one justice being away) vote in Howell v. Howell and Stevens v. Stevens, supra, we held that the act was unconstitutional since only the Governor had the constitutional authority to make this appointment, and further held that Mrs. Hale was not a de facto officer, stating:
“In the absence of election to office (however defectively the election may have been held) one may claim to be a de facto officer by virtue of appointment only in the event the appointing power had authority or apparent authority to make the designation. If the agency lacked the actual or ostensible authority to appoint in any circumstance, its appointee cannot be considered a de facto officer. This is true because the attempt would not be the proper exercise of an existing power, but an effort to exercise a non-existent power.”
It was then pointed out that where there is no de jure office, there can be no de facto judge. From the opinion:
“ ‘The question is quite different where there is no de jure office, ... for the foundation of the proceeding must be ... a lawfully created court, or there is a total want of jurisdiction in the court itself to hear and determine the case, and this jurisdictional infirmity will annul any proceedings therein on mere suggestion to the proper court. It would be beyond all precedent to term the judge presiding in a court which is not a court at all a de. facto judge.’
“And, for the same reason, one appointed to an office that does exist, but not appointed under form of law, would not be a de facto officer.”
In strongly worded dissents, two members of the court disagreed, stating that, in their view, Mrs. Hale was a defacto judge, and that her acts could not be questioned in the cases presented. It was pointed out, that in the view of the dis senters, a valid, legal, de jure court had been created, and that Mrs. Hale was a de facto judge. Justice Ed McFaddin, citing 46 C.J. 1057, stated:
“One who holds an office under an appointment or election giving color of title may be a de facto officer, although the appointment or election is irregular, or invalid, or although he has been appointed by an authority not competent under the law to make the appointment, and even though his title is derived from an unconstitutional statute.”
Still further,
“The principle is that the acts of an officer de facto are binding upon the public as though done by one in office de jure, and that his right to the office cannot be questioned except in a direct proceeding to which he is a party, is well settled and is not new in this court. Moore, as Adm’r. v. Turner, 43 Ark. 243; Pearce v. Edington, 38 Ark. 150; Kaufman v. Stone, 25 Ark. 336; Caldwell v. Bell & Graham, 3 Ark. 419; S.C., 6 id., 227; Hildreth’s Heirs v. McIntire’s Devisees, 1 J. J. Marsh, 206, 19 Am. Dec., 61, and note.”
Justice McHaney, in his dissent, stated, in quoting Vol. 43 Am. Jur. p. 224, § 470, the following:
“The de facto doctrine was ingrafted upon the law as a matter of policy and necessity, to protect the interests of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. It was seen that it would be unreasonable to require the public to inquire on all occasions into the title of an officer, or compel him to show title, especially since the public has neither the time nor opportunity to investigate the title of the incumbent. The doctrine rests on the principle of protection to the interests of the public and third parties, not to protect or vindicate the acts or rights of the particular de facto officer or the claims or rights of rival claimants to the particular office. The law validates acts of de facto officers as to the public and third persons on the ground that, although not officers de jure, they are, in virtue of the particular circumstances, officers in fact whose acts public policy requires should be considered valid.
“Judicial as well as ministerial officers may be officers de facto, within the rule, hereafter considered, that the acts of a de facto officer are valid as to the public and third persons.”
Without going further into either the majority opinion or the dissents, some three months later, in Pope v. Pope, 213 Ark. 321, 210 S.W. 2d 319, Justice Frank Smith, whose vote had helped make the opinions in the cases of Howell v. Howell, and Stevens v. Stevens, supra, stated that he had receded from that view, and that he was of the opinion that the dissenters were correct; that there was a dejure office and that Judge Hale was a chancellor de facto. Accordingly, the law is as stated in the dissents in the cases cited.
In the case before us, the office of juvenile judge (so called for convenience) is certainly a de jure office, validity of such being upheld in Ex Parte King, supra. Mr. Mayes received the appointment under a legislative act from an authority authorized to make the appointment which certainly had the effect of “color of title”, and under the authority cited by Justice McFaddin^ was a de facto officer even though his “title” (if it should be so found) was derived from an unconstitutional statute.
Actually, whatever the status of Mayes, Mrs. Fortin certainly was not, in any event, deprived of any right, for she received a completely de novo hearing by the circuit court, which heard numerous witnesses, and rendered its judgment on the basis of the evidence heard by the judge thereof. For that matter, the only reason that the case was not fully heard by the county judge himself was because appellant by-passed a hearing in that court in order to reach the circuit court at an earlier date.
It is urged that the mother and two minor children have been denied due process of law as required by the United States Constitution and Arkanaas Constitution, in that each has the fundamental right to the society of each other, and the State cannot interfere with such right unless it is proven by clear and convincing evidence that the parent is unfit. In connection with this point, it is also asserted that the question of the best interest of the child cannot be raised until the unfitness of the natural mother is established; also, it is pointed out that the circuit court made no finding that the children were either dependent, neglected, or delinquent at the time of the de novo trial in circuit court. As to this last, such a finding could hardly have been made, for the children had been living for approximately five years with the foster parents and, according to the evidence, were being well taken care of. The original order of the juvenile court found that these children were dependent and neglected; this order was not appealed. The July 25, 1972 order (here on appeal) sets out that Mrs. Fortin does not seek to have the judgment of September 18, 1969 set aside on the ground “that the said minor children were not dependent or neglected children at the date of that judgment, but rather on the ground that the situation of petitioner has so changed since that date of judgment as to merit or justify the returning of the children to her custody ***.” The present situation of appellant is, of course, intertwined with the question of the best interests of the children, and in Boatwright v. Pulaski County Juvenile Court, 250 Ark. 138, 464 S.W. 2d 600, we pointed out that a principal concern is “the best interest and welfare of the child.” In that case, a minor child was adjudged by the Pulaski County Juvenile Court to be a dependent and neglected child, and custody was removed from the mother and the boy placed in the custody of Jim Fisher, Operator of Shawnee Valley Boys Ranch near Harrison. Three years later, after the mother had regained her health and had obtained a steady job, she petitioned that the boy be returned to her custody. The petition was denied, and the circuit court affirmed. On appeal, we affirmed, stating, “Of course it is a universal rule of law that the paramount consideration in awarding custody of minor children is the best interest and welfare of the child. With that rule of law as a guide we examine the evidence. ” [Our emphasis].
In Boatwright, supra, we mentioned that the mother was not as unstable as in 1966 when she relinquished custody of her son. Here, too, it may be stated that Mrs. Fortin is in much better condition, both financially and healthwise, than in 1969. According to Mrs. Fortin, she was sick in 1969, and had a nervous breakdown, but she stated that she presently is in good health; that she was without funds and unable to care for the children in 1969, but such condition no longer exists. Harlan Mounce, a brother of appellant, said that Fortin had been one of his employees and the two formed a partnership in masonry work; he testified that from March 26,1973 to the same date in 1974, the two netted about $6,000 each from their work. According to Mrs. Fortin, appellant and her husband are purchasing a two-story frame house in Springdale, with eight rooms and two and one-half baths.
Mrs. Fortin testified that she had married Mr. Fortin in March of 1969 and that after the court entered its order taking the custody of the children from her, she and her husband went to South Dakota, where Mr. Fortin took a job on a ranch. They returned to Arkansas in January of 1970. After the juvenile court had entered the order of July 25, 1972 (here on appeal), an order for visitation rights for appellant was obtained, and on the occasion of one of these visits, she, without permission of court or appellees, took the children to South Dakota to the home of her mother-in-law. This occurred in August, 1972, and the children were enrolled in school there, but remained only a short time. Mr. and Mrs. Reeves and Mrs. Parrish went to South Dakota, presented the court order and the children were released to them and returned to Arkansas. Testimony was offered on behalf of appellant by relatives of her husband in South Dakota as to her care of the girls and their apparent affection for her. Also, Don Reed of Brentford, South Dakota, the school bus driver during the period from August 27 to September 7 when the little girls were attending school there, testified that they were well-dressed, an opinion concurred in by Quentin C. Miles, Superintendent of Schools for the District, who added that they were also well-mannered. Erma Parmeter and Ruby Holenbeck, residents of Ashton, South Dakota, testified by deposition that the girls were always well-dressed and well-mannered and were not neglected by their Mother. Eileen Francoli of Ashton, according to her deposition, a “homemaker and bar owner” stated that the children were clean, “hair was always combed”, and she had “never seen a Fortin child who was dirty.” Charlotte Sutton, a witness on behalf of appellant, who had formerly lived in apartments owned by Parrish, testified that this appellee and his wife fussed and argued quite a bit.
Mr. and Mrs. Reeves and Mr. and Mrs. Parrish testified as to the care given the children, and several residents of Springdale also testified as to the church activities of the appellees and the fact that the little girls were neatly dressed and well-behaved. Mr. Reeves testified that on several occasions, Mr. Fortin had followed him and his wife, making threats and telling them if they didn’t leave the children alone, something was going to happen to Mr. Reeves. He mentioned a particular occasion when Fortin told him to get out of his car, evidently challenging him to fight, stating that the latter was extremely dirty and had been drinking. At this point, the record reflects that Fortin, sitting in the courtroom, called out, “You are a liar.” According to Reeves, they were followed on about four different occasions, and he mentioned that once, Fortin passed him three or four times and stopped on the highway so that Reeves had to pull around to get by.
As far as personal conduct is concerned, Mrs. Fortin stated that her drinking ceased in 1972 and that she had not been arrested for drinking or related offenses since October, 1971. She was unable to say how many times she had been arrested or convicted in the Springdale Municipal Court prior to that time. Of course, it is noticeable that Mr. and Mrs. Fortin had been married for approximately six months before the children were ever taken from her, and according to Mrs. Fortin, her husband had a job waiting for him in South Dakota at that time. Testimony that bears significance is that of Sandra Kay, 12 years of age, and the oldest of the two girls. Sandra Kay testified that she was in the fifth grade, making good grades. She said that she first went to live with the Parrishes when she was six years old and had been with them most of the time since; that she wanted to live with them and did not desire to move. The little girl said that she attended church every Sunday morning, Sunday evening, as well as on Wednesday night. She testified relative to being taken to South Dakota by her Mother and said that she knew her Mother drank “By the smell on her breath.” With reference to when it was time to go to bed, Sandra said:
“They would lock us up, with this little thing over the door. They put the rug cleaning thing over the door; it’s made like a piano and has strings on it, and they put it over the door.”
According to the witness, she and her sister were unable to remove this object and she said that they were kept in their room by this method when Mr. and Mrs. Fortin “wanted to talk or drink.” Sandra stated that she was happy when appellees came to South Dakota to get them, and that she had no desire to tell her Mother “good-bye” on that occasion; that she had no present desire to visit with her Mother or Stepfather, and in fact, did not want to see her Mother any more.
Child custody cases are always difficult, and particularly so where the choice is between a parent and persons who have had custody of a child for a long number of years and ties of love and affection have been established. We are not unmindful of the rights of a natural parent, and it does appear that this mother has earnestly endeavored to have the children returned to her custody. It, of course, likewise appears that Mrs. Fortin, in earlier years, was somewhat unstable, and whether she has demonstrated a change in her habits for a sufficient period of time was a matter for the trial court to determine. The acts of Mr. Fortin, heretofore enumerated, of course, were not conducive to a favorable finding in behalf of appellant, and, as pointed out, the evidence of Sandra Kay was important. All in all, we are unable to say that there was no substantial evidence to support the findings of the circuit judge; for that matter, under present circumstances, we could not say that his findings were even against the preponderance of the evidence.
Affirmed.
Attention here should be directed to Rule 9 (b) “Statement of the Case” which provides that an appellant’s abstract and brief shall begin with a concise statement of the case, ordinarily not to exceed two pages in length. The present statement of the case comprises 17 printed pages and necessarily involves a great many matters that have no proper place in the Statement of the Case.
Petitioner was divorced from her husband, Phillip Giurbino, before any of these proceedings commenced, and married Jim Fortin in March, 1969.
“The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided.”
§ §--45-203 and 204 were amended by the General Assembly in 1965, and § 45-201 was amended in 1973, but these amendments made no changes that are pertinent to this litigation.
“§ 29. The judge of the county court shall be elected by the qualified electors of the county for the term of two years. He shall be at least twenty-five years of age, a citizen of the United States, a man of upright character, of good business education and a resident of the State for two years before his election, and a resident of the county at the time of his election and during his continuance in office.”
Justice Miliwee joined in this dissent.
This Justice had originally been absent, but participated on rehearing.
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Conley Byrd, Justice.
Upon a charge of having murdered Tommy Stanley Wells by beating, a jury found the appellant Denver Witham guilty of first degree murder and fixed his punishment at life imprisonment. For reversal he makes the contentions hereinafter discussed.
Sufficiency of Evidence: The record shows that appellant Denver Witham and Johnnie Witham were cousins. The two Withams and Tommy Stanley Wells were seen leaving a place known as “The Texas Lounge” about 1:30 a.m. March 12, 1974. John Tucker testified that he saw the deceased get in the back seat of Denver Witham’s automobile and that Johnnie Witham and Denver drove off with Denver doing the driving. The body of Tommy Stanley Wells, beaten beyond recognition, was discovered on the China Grove Cemetery Road after daylight the same day by William Holloway, a logging contractor. The tire tracks at the scene where the deceased’s body was found matched the rear tires on Denver’s automobile.
Linda Clark testified that she had a child by Denver out of wedlock and that she had spent the night of March 11th at the home of Denver’s parents. She testified that about 2:30 or 3:00 a.m. March 12th, Denver and Johnnie came into the house. According to her testimony, Denver was crying and told his mother that he and Johnnie had beaten a man to death. Denver had a little blood on his shirt and in his hair. Johnnie was so bloody that he went into the bathroom and changed clothes. She said that Denver told Johnnie to go out in the car and get the piece of pipe that Denver identified as the murder weapon. She said that Johnnie, at Denver’s instructions, went out and washed the blood off the hood, windshield and driver’s side of the automobile.
The medical evidence confirmed that the deceased was killed by a blow from a blunt instrument which was compared to that which would happen if one used a baseball bat with the force applied by a big league baseball player.
Denver’s testimony was that he got drunk at “The Texas Lounge” and then crawled in the back seat of his automobile and went to sleep. He said that he remembered nothing that occurred until he woke up on the couch in his parent’s home the next morning. His mother and sister corroborated his story that he was asleep in the back seat of the automobile when he got home and also testified that they went out and got him to come in arid sleep on the living room couch. Both the mother and sister admitted that Johnnie Witham was bloody. However, they testified that Johnnie only told them that he had been in a fight and that they knew nothing about the killing until someone told them about reading it in the paper.
It was for the jury to resolve the conflicts in the testimony, and on the record, we find that there is substantial evidence to support the jury’s verdict.
Suppression of Evidence: In his motion for new trial appellant alleged that the State wrongfully suppressed evidence that would have been favorable to him. At the hearing thereon, he testified that after the trial Johnnie Witham stated in front of others, including law enforcement officials, that Denver had nothing to do with the killing. The record of that hearing shows that Johnnie was tried and convicted of the murder of Wells before Denver’s trial, but that he did not take the stand to testify in his own behalf. The prosecution had Johnnie subpoenaed as a witness in Denver’s trial but did not call him. Furthermore, when Johnnie was called as a witness by Denver, at the hearing on the motion for new trial, Johnnie refused to testify on the ground that it might tend to incriminate him since his conviction was then on appeal.
The authorities generally recognize that the State cannot be charged with wrongfully suppressing evidence of which it had no knowledge or that was equally available to both the prosecution and the defense. See Jordan v. Bondy, 114 F. 2d 599 (D.C. Cir. 1940). Here the evidence, of which the appellant complains, could only have been given by Johnnie Witham, and since he invoked the privilege against self-incrimination when appellant sought to produce such evidence, we are unable to see how any action on the part of the State prevented the production of such evidence. Furthermore, the record as presented does not show that the State had any knowledge of such evidence before appellant’s trial.
Excessive Judgment: Finally, appellant argues that the penalty of life imprisonment should be reduced because it is highly excessive under the record presented. We find no merit in this contention. The killing here was a brutal one. The evidence on the part of the officers showed that the deceased’s body had been stripped of all valuables except a class ring when it was found. If the testimony of Linda Clark can be believed, it would indicate that perhaps appellant stripped the deceased of his valuables. Also, the record shows that appellant had been convicted and sentenced to the State prison on two previous occasions — one time for burglary and grand larceny and one time for voluntary manslaughter.
Affirmed. | [
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Frank Holt, Justice.
This appeal results from the court’s order granting appellees’ motion to strike appellant’s late answer. Appellees, John C. Watkins and his wife, brought this action to recover for damages he suffered in an automobile accident involving a car driven by Judy Rogers. On August 30, 1973, appellees filed suit against seventeen year old Judy, her mother and appellant, who is her father. Judy was driving by authority of a drivers license which was issued on an application signed by the appellant and her mother pursuant to the provisions of Ark. Stat. Ann. § 75-315 (Repl. 1957). The act provides and appellees alleged that Judy’s negligence, she being under eighteen years of age, is imputed to the person w'ho signs her driver’s application'and shall be jointly and severally liable with the minor for any damages caused by her negligence or misconduct in the operation of a motor vehicle upon a highway. Judy lives with her divorced mother. At the time of the accident, Judy was driving a car apparently owned by her mother. All of the parties were served with summons on September 1, 1973. Appellant took his summons to his ex-wife’s insurance agent and was told by him it had “first coverage.” Appellant was led to believe that an answer would be filed in his behalf. He left the suit papers with this agent. He then informed his own insurance agent of his action. His ex-wife’s insurer filed a timely answer for Judy and her mother. It failed to file an answer for appellant or notify him of the inaction. Neither did his own insurer take any action.
On March 4, 1974, or a few days before the case was set for trial, appellees took a non-suit against Judy and her mother and a default judgment against appellant for $110,-000. Appellant was unaware that an answer had not been filed for him and he had no knowledge of a default judgment until a few days later. On March 14, 1974, appellant filed a motion to set aside the default judgment. On March 20, he filed an answer in which he asserted that his liability, if any, “is derivative from Judy S. Rogers and in the absence of a cause of action against Judy S. Rogers, no action can be maintained against this defendant.” On March 21, appellees filed a motion to strike his answer. On March 28, the court set aside the default judgment. On November 1, 1974, the court granted appellees’ motion to strike appellant’s answer. However, appellant was allowed “the right to cross-examine the plaintiffs’ witnesses on the amount of damages and also to offer proof in mitigation of plaintiffs’ damages.” Thereafter the court granted appellant’s request to make a proffer of proof as to a meritorious defense, unavoidable casualty, excusable neglect and other just cause. The court then reaffirmed its order striking appellant’s answer. Hence, comes this appeal.
Appellant argues, inter alia, that his daughter’s negligence, if any, is imputed to him by statute and, therefore being derivative, the answer and the asserted defenses by Judy inured to his benefit even though he failed to answer or appear. In other words, any liability on his part is solely dependent upon and common to Judy’s liability. Consequently, should she be exonerated on the basis of her answer and asserted defenses, he necessarily would be relieved of any liability.
It is well established that the answer of a codefendant inures to the benefit of a defaulting defendant where there exists, as here, a common defense as to both of them. Burt v. Henderson, 152 Ark. 547, 238 S.W. 626 (1922). See also Coddington v. Brown, 123 Ark. 486, 185 S.W. 809 (1916). Simpson & Webb Furniture Co. v. Moore, 94 Ark. 347, 126 S.W. 1074 (1910); Fletcher v. Bank of Lonoke, 71 Ark. 1, 69 S.W. 580 (1902); and McDonald v. Smith Adm’r., 24 Ark. 614 (1865). This is in accord with the general rule which is stated in 71 C.J.S. Pleading § 117 d:
... [a] defense which goes to the merits of the whole case as tending to show no cause of action in plaintiff may, when pleaded by one defendant, inure to the benefit of his codefendants. . . .
See also Gabbard et al v. Gabbard et al, 294 Ky. 572, 172 S.W. 2d 214 (1943); and City of Ravenna v. Griffin, 282 Ky. 581, 139 S.W. 2d 74 (1940). In the case at bar, the appellees alleged that their damages were the result of the negligent driving of a motor vehicle by Judy and that her negligence was imputed to the appellant, her father, and her mother. Since the appellant’s defense to appellees’ allegations as specifically raised in his answer was common to Judy’s, we are of the view Judy’s defense inured to appellant’s benefit although he did not file a timely answer or appear. Consequently, the trial court erred in striking appellant’s answer.
We deem it unnecessary to discuss appellant’s contention that his late answer was the result of unavoidable casualty, excusable neglect or other just cause.
Reversed and remanded. | [
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Frank Holt, Justice.
Appellant was found guilty of possession of marijuana with the intent to deliver in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1973). A three year sentence in the State Department of Correction was imposed. We first consider appellant’s contention that his conviction for possession with intent to deliver was contrary to the evidence and the state failed to meet its burden of proof. Appellant initially argues that most of the state’s principal witnesses were “admitted drug users and sellers” and their “admitted character and lack of truthfulness” so impeached their credibility that a conviction upon the testimony of these witnesses is contrary to justice and should not be sustained. We cannot agree because the credibility of witnesses and the weight accorded to their testimony is solely within the province of thejury. Murchison v. State, 249 Ark. 861, 462 S.W. 2d 853 (1971); Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969); and Rayburn v. State, 240 Ark. 264, 398 S.W. 2d 909 (1966). Certainly it cannot be said that their testimony is so inherently improbable and unbelievable that reasonable minds could not differ.
An arresting officer testified that he had information the appellant and a codefendant were in town for the purpose of selling a quantity of marijuana at a certain place and hour. The officer was waiting there when he saw the appellant drive up followed by a pickup truck. With consent, the officer searched the vehicle'appellant was driving and retrieved a box which, according to the evidence, contained marijuana. The witness, who was driving the pickup truck, testified he purchased a “lid” from the appellant that afternoon and marijuana was being kept in the box under the seat where the officer found it. This witness further testified that when he drove onto the parking lot to purchase the drug, he asked the appellant if he had the marijuana and he responded “yes.” Another witness testified that appellant admitted the “pot” was his. Although the state adduced other testimony to meet its burden of proof, the recited evidence alone is amply substantial when we consider it in the light most favorable to the state as we must do on appeal. Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973).
Appellant further asserts that the trial court erred in permitting the state’s expert witness, a chemist, to testify with respect to a chemical analysis. Appellant first argues that the chain of possession of the marijuana was incomplete because only a carbon copy of the receipt, whoch showed delivery to the chemist by the officer, was introduced. Suffice it to say there is no evidence which indicates that the carbon copy is not an exact duplicate of the original. Neither can we agree with appellant that the copy should be excluded under the best evidence rule. In Lin Mfg. Co. of Ark. v. Courson, 246 Ark. 5, 436 S.W. 2d 472 (1969), we said:
The best evidence rule comes into play when the contents of a writing or its exact wording is an issue in the case. When, as in the case at bar, the existence of the writing is merely a collateral matter, the rule does not apply.
In our view this rule of law is applicable in the case at bar. The purpose of the introduction of the receipt was to establish evidence as to a chain of possession by showing a delivery was made. It was not for the purpose of establishing the terms of a writing. Neither can we agree with the appellant that the receipt was deficient as to identification purposes. It contains the name of the deliverer (the officer) and the recipient (the chemist); describes the evidence delivered; and indicates the charges, the names of the suspects involved and the date and time of the delivery to and receipt by the Arkansas Department of Health.
Appellant also argues that the testimony of the chemist was not admissible because he was not properly qualified as an expert. It is well established that the determination of an expert’s qualifications as a witness is within the sound discretion of the trial court and, absent an abuse of discretion, we do not reverse its decision. Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1968); and Firemen’s Insurance Co. v. Little, 189 Ark. 640, 74 S.W. 2d 777 (1934). In the case at bar, the chemist has a degree in chemistry; has worked for the Arkansas Department of Health for the past two years; had received a three to four months’ in-service training in a drug abuse lab; had examined hundreds of samples to determine if they contained controlled substances; and testified many times in Various courts on the subject of chemical analysis. We have no hesitance in holding the trial court did not abuse its discretion in determining the chemist sufficiently met the qualifications of an expert witness.
Appellant next contends that the trial court erred in refusing to admit, for impeachment purposes, the previous written statement of a state’s witness into evidence. At trial, this witness admitted that his previous written statement was untrue. The court permitted the contents to be read to the jury; however, the court refused to admit it as an exhibit. We perceive no error. Where, as here, the witness admits he has made a contradictory statement, further proof becomes unnecessary and is inadmissible for impeachment purposes. Humpolak v. State, 175 Ark. 786, 300 S.W. 426 (1927).
Appellant’s final contention is that the court violated his constitutional right of equal protection of the laws by sentencing him to three years in the state penitentiary and then placed his codefendant on probation for three years. Appellant argues that the only factual difference between appellant and his codefendant in the sentencing procedure is that his codefendant pleaded guilty and appellant demanded a jury trial. Therefore, appellant argues that his demand for a jury trial resulted in a harsher sentence and a disparity of sentencing is a violation of his constitutional rights which guarantee equal justice for all. To this effect appellant cites United States v. Wiley, 278 F. 2d 500 (7th Cir. 1960) and Hess v. United States, 496 F. 2d 936 (8th Cir. 1974). We deem these cases inapplicable. In Wiley the court said:
The record abundantly shows that the court was fully informed as to the serious prior criminal records of convictions of all of Wiley’s co-defendants. **** The trial court’s own remarks show that he considered Wiley ‘a minor participant who stood trial.’
Even so, the trial court imposed a harsher sentence on Wiley than the other who pleaded guilty. Based upon this disparity in sentencing, the court set the sentence aside and remanded the cause with directions. The concurring opinion noted that the trial court stated it was his policy not to consider probation for a defendant who demands a jury trial. In Hess, the trial court indicated a harsher sentence was imposed because the defendant chose to exercise his constitutional right to a jury trial. In the case at bar, there is no evidence whatsoever that the court’s sentence was influenced by the fact the appellant exercised this right. Furthermore, there was ample evidence that the activities of the appellant indicated that he was active to a greater extent in illegal drug traffic than was his codefendant. No doubt the trial court properly took this into consideration. It is well established that the trial court is accorded great discretion to impose sentences within the legal limits as well as to suspend sentences. Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852 (1968). In the case at bar, the appellant has not demonstrated any abuse of discretion.
Affirmed. | [
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Conley Byrd, Justice.
Thomas E. Sparks brought this action against Jack Morgan, et al, as members of the Arkansas Public Building Authority and some nominal constitutional and administrative officers attacking the bond issuing provisions of Act 236 of 1973 and to declare certain acts of the Public Building Authority, (hereinafter referred to as “PBA”) as being invalid and unlawful. Kelly Bryant, Secretary of State, was permitted-to intervene on the theory that there was a conflict between the authority given him by several appropriations acts and the “Arkansas State Capitol Complex Master Plan” adopted by the “PBA”. The trial court held that the authorization by Act 236, supra, to issue revenue bonds violated Amendment 20 to the Constitution of Arkansas. Since the trial court reasoned that the Arkansas State Capitol Complex Master Plan depended entirely upon the sale of bonds, he enjoined the “PBA” from any further expenditure on the Master Plan. The trial court also enjoined the Secretary of State from any further construction in the area until the General Assembly should resolve the conflicts between him and the “PBA”. The “PBA” has appealed contending only that the authorization for the issuance of the bonds does not violate Amendment 20 to the Arkansas Constitution. Sparks and the Secretary of State have cross-appealed raising the issues hereinafter discussed.
The record shows that there are a number of State Agencies in Pulaski County paying out a considerable amount of rental money each year for office space to private property owners and that to alleviate this rental problem, the “PBA” was created by Act 236 of 1973. After creating the “PBA”, Act 236 [Ark. Stat. Ann. § 5-1002.1 (Supp. 1973)] transfers to the “PBA” certain lands acquired in the name of the State of Arkansas by the Arkansas Revenue Department Building Commission pursuant to the provisions of Act 151 of 1965. Section 4 of Act 236 provides:
“The Authority is hereby authorized and empowered to
(a) ■ • •
(b) Use the land acquired by the Arkanaas Revenue Department Building Commission, which are transferred to the Arkansas Public Building Authority under the provisions of subsection (b) of Section 3 of this Act as sites for public buildings, and obtain additional sites. ...”
With reference to the “Bids for Construction”, Section 13 of Act 236 provides:
“The Authority is hereby authorized to employ architects to prepare plans, specifications and estimates of cost for the construction of public buildings hereunder and to supervise and inspect such construction. After the Authority shall have approved the plans and specifications prepared by the architect, it shall proceed to advertise for bids and contract for the construction of the public buildings in accordance with applicable laws governing the construction of public buildings. ...”
The General Assembly also appropriated $15,000,000.00 for the use of the “PBA”.
The record shows that after the “PBA” had employed the necessary architects, it jettisoned a proposed construction of a highrise building on the land acquired from the Arkansas Revenue Department Building Commission and instead developed the plan for its “Arkansas State Capitol Complex Master Plan” which would use the Capitol Mall area and require a total expenditure of approximately $74,000,000.00. The “PBA” also decided that considerable time and money could be saved by letting construction contracts on a “fast tracking method”. Under this “fast tracking method”, the “PBA” was letting contracts for certain phases of the construction before the final plans for other stages of the building was complete.
Following the entry of the trial court’s decree, the General Assembly passed Act 270 of 1975, effective as of February 28, 1975, repealing PBA’s authority to issue bonds without legislative approval. Because of our settled policy of not ruling upon constitutional issues without an actual controversy, we find that Act 270 of 1975 has mooted the issues on this appeal with reference to the authority of the “PBA” to issue revenue bonds. Consequently, we do not reach the merits of the direct appeal by the “PBA”.
On his cross-appeal, Sparks first contends that the transfer of property from the Arkansas Revenue Department Building Commission to the “PBA” is contrary to Art. 16, § 11 of the Constitution of Arkansas, which provides that “no moneys arising from a tax levied for one purpose shall be used for any other purpose.” We find no merit in this contention because the Act under which the land was acquired by the Arkansas Revenue Department Building Commission specifically recognized that the lands were to be acquired for public purposes. See Section 6 of Act 38 of the First Extraordinary Session of 1961.
We agree with Sparks that under Section 4 (b) of the Act, supra, the “PBA” was only authorized to use the land transferred from the Arkansas Revenue Department Building Commission. The Authority to “obtain additional sites” does not authorize the “PBA” to use those sites to construct buildings thereon.
Sparks also contends that the “PBA” has violated Section 13 of the Act, supra, by proceeding with construction before the architects’ plans and specifications are complete. We agree with his contention that the literal meaning of Section 13 prohibits the advertising and accepting of bids until the “PBA” has approved the plans and specifications for the construction of the building.
Since our construction of Section 4(b), supra, limits the “PBA” to using the lands transferred from the Arkansas Revenue Department Building Commission, it necessarily follows that the trial court was in error in enjoining the Secretary of State from proceeding with his authorized construction.
Reversed and remanded for entry of a decree not inconsistent herewith. Such decree shall note that the grounds upon which the trial court relied for entering the injunction have become moot by virtue of the authority withdrawn from the “PBA” by Act 270 of 1975. Of course nothing herein said is to be accepted as our approval or disapproval of the bond issuance authorized by Act 270 of 1975. All costs are assessed against the “PBA”.
There is some question in the record as to whether the Capitol Mall area was properly obtained by the “PBA”. | [
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Carleton Harris, Chief Justice.
Brady Watson, appellant herein, along with Jethro Baker, was tried for the crime of robbery, it being alleged that appellant and Baker robbed Walter Strangways in the early morning hours of January 12, 1974, in Pulaski County, Arkansas. The jury found the defendants guilty and fixed appellant’s punishment at five years imprisonment. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the court erred in permitting the State to ask a witness for appellant the question, “Would you shade the truth a little bit to keep someone you love out of the penitentiary?”, and it is also asserted that the court erred in denying appellant’s motion for a new trial.
Vanessa Smith testified that she went to a motel with Watson and was with him during the night of January 11 and early morning hours of January 12; that they had “made love” that night and that she was in love with Watson. The record then reflects the following testimony on cross-examination by the State’s attorney.
“Q Miss Smith, would you shade your truth a little bit to keep someone you love out of the penitentiary?
A Would I do what?
Q Would you shade the truth a little bit to keep someone you love out of the penitentiary?
MR. HAYNES:
I will object to that, Your Honor. It’s improper.
THE COURT:
Overruled. Proceed. Answer the question.
A Answer the question. Me answer? Yes.
Q You would?
A If I knew anything to say, I would.”
The court’s ruling constituted error. In Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974). Moore was being tried on a charge of assault with intent to kill and was asked, on cross-examination, if he “would lie to stay out of the Arkansas State Penitentiary”. Moore, in effect, replied that he would not. On appeal, though finding that no proper objection had been made, we said:
“If a proper objection had been made, it would have called the matter to the court’s attention and allowed the court the opportunity to rule upon it. Therefore, we do not reverse since a proper objection was not made to the question now challenged on appeal.”
However, we took occasion to point out that such inquiry was not within the proper scope of cross-examination, stating:
“Even though objection was not made to the question propounded in the case at bar, we take this opportunity to firmly state our view that the inquiry is not deemed within the proper scope of cross-examination. It amounted to a supposition and was argumentative. If this conjectural approach is permissible on cross-examination, then there would be no limit to speculative and argumentative inquiries of witnesses on cross-examination in every case. In view of the absence of an objection and the appellant’s anwer to the question, the asserted error was rendered harmless.”
While the question in Moore was propounded to the defendant himself, this is, of course, a distinction without a difference and it will be noted that the quoted language refers to “witnesses”. That opinion, as previously shown, was delivered on April 8, 1974, which was a month before the present case against Watson was tried, and there thus had been ample notice that this line of questioning was improper. Accordingly, under Moore, the judgment of conviction must be reversed.
Appellant’s second point is now, of course, moot, since the effect of the reversal on Point 1 is to give Watson another trial.
Because of the court’s error, set out herein, the judgment is reversed, and the cause remanded to the Pulaski County Circuit Court.
It is so ordered. | [
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Lyle Brown, Justice.
This is an appeal from an order of the trial court denying a motion to vacate a judgment against DeSoto, Inc. as garnishee and in favor of appellee Crow in the amount of $3,022.10. The essence of DeSoto’s argument is that notice was never given to DeSoto that such a judgment might be entered.
Two identical writs of garnishment were issued against DeSoto. The first writ was dated June 25, 1974 and reads as follows:
“THE STATE OF ARKANSAS TO THE SHERIFF OF PULASKI COUNTY:
“Whereas, Lawrence A. Crow on the 16th day of May, 1974, in the Circuit Court obtained a Judgment against John Pless and Johnny M. Pless for $3,022.10 debt and damages, and court costs, which Judgment remains unsatisfied; and it being represented to the Court by said plaintiff that the Garnishee, DeSoto Incorporated is indebted to said defendant or has in its hands or possession goods, chattels, moneys, credits or effects belonging to said defendant;
“NOW, THEREFORE, you are hereby commended to summon the said DeSoto, Incorporated to appear in this Court within 10 days from the date of service hereof and then and there to answer what goods, chattels, moneys, credits or effects it may have in its hands or possessions belonging to said defendant to satisfy said Judgment, and to answer such further interrogatories as may then and there be exhibited against it; and you will make due return of this writ into said court without delay.”
Another writ was issued under date of July 10, 1974. The only difference between the two writs is the date of the issue and the date of service. The writs of garnishment have two fatal defects. First, there is no notice that failure to answer could result in a judgment against garnishee. The writ merely advises garnishee to appear and answer questions propounded and to be propounded. Ark. Stat. § 29-107 (Repl. 1962) provides: “All judgments, orders, sentences, and decrees, made, rendered, or pronounced, by any of the courts of the State, against any one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences, or decrees, shall be absolutely null and void”.
The writ of garnishment served the purpose of a summons. Ark. Stat. Ann. § 27-306 (Repl. 1962) provides: “The summons shall be directed to the sheriff of the county, and command him to summon the defendant or defendants named, therein to answer the complaint filed by the plaintiff, giving his name, at the time stated therein, under the penalty of the complaint being taken for confessed, or of the defendant being proceeded against for contempt of court on his failure to do so. The summons shall be dated upon the day it is issued, and signed by the clerk”.
Under our holding in Wilson v. Overturf, 157 Ark. 385, 248 S.W. 898 (1923), the garnishee did not state a good cause of action.
In the case of Ware v. Phillips, 468 P. 2d 444 (Wash. 1970) the court said: “It is fundamental that a notice to be meaningful must apprise the party to whom it is directed that his person or property is in jeopardy.”
The second defect is that the garnishee is required by the writ to appear and answer the same within ten days. Ark. Stat. Ann. § 31-504 provides: “Such writs [of garnishment] shall be directed, served and returned in the same manner as writs of summons”.
Ark. Stat. Ann. § 27-308 provides: “In all civil actions the time fixed in the summons for the defendant to answer shall be within twenty [20] days after service when the summons is directed within the State, and thirty [30] days when it is directed outside the State”. Section 27-309 provides: “The summons shall be made returnable twenty (20) days after the issuance thereof unless otherwise ordered by the court”.
It is argued that Arkansas has a ten-day statute for the answering of garnishment. We are referred to Ark. Stat. Ann. § 31-512 [1962 Repl.]: “If any garnishee, after having been served with a writ of garnishment ten [10] days before the return day thereof, shall neglect or refuse to answer the interrogatories exhibited against him on or before the return day of such writ, the court of justice before whom such matter is pending shall enter judgment against such garnishee for the full amount specified in the plaintiff’s judgment against the original defendant, together with costs”. Ark. Stat. Ann. § 31-512 is no longer the law as it pertains to circuit courts. It is true the annotated statutes do not show an amendment, but the facts are that it was amended by implication. § § 27-308, 27-309, supra.
We are urged by appellant to declare some of the garnishment statutes unconstitutional. We decline to so hold. The effect of our rulings herein is to hold that the garnishment forms do not meet constitutional due process, and that the garnishee is entitled to twenty (20) days notice.
Reversed and Dismissed. | [
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John A. Fogleman, Justice.
Appellant Frederick contends that the evidence was insufficient to support a jury verdict finding him guilty of assault with intent to rape. He also argues that the court erred in refusing to give his requested instruction on simple assault, as a lesser included offense. The state has confessed error on the matter of the jury instruction in reliance on Fike v. State, 255 Ark. 956, 504 S.W. 2d 363, but we find no error in that respect, as we will point out. Appellant also challenges the sufficiency of the evidence, so we must consider it, viewing it in the light most favorable to the state. We find it sufficient.
Martha Martin Ward worked until 10:45 on the night of July 4, 1974. She then went to her place of residence at 1500 Scott Street in Little Rock, where she found her sister and two nieces, aged 9 and 5 and her 11-month-old grandson. The sister left immediately to report for work at 11:00. Mrs. Ward’s cousin, Danny Ray Powell, came and stayed until 2:00 A.M. and her fiance visited for 35 or 40 minutes and left about 12:30 A.M. Mrs. Ward’s 16-year-old daughter came home a little after midnight and later fell asleep on a living room couch, while watching television. Mrs. Ward went to bed to sleep about 2:30 A.M., wearing her underclothes. She awakened sometime before 4:00 A.M. to find a hand in her face. Thinking it was her cousin, she said, “Don’t scare me like that”. A male person, positively identified as Frederick, responded, “Shut up, bitch, I am going to kill you.” This man had one knee on her bed and was propped on the bed in such a manner that one foot was on the floor. When she screamed, he slapped her and told her to shut up, but she screamed again. At this time her daughter awakened and, thinking her mother was having a nightmare, came to the door of the room. Standing in the doorway near the infant grandson’s crib, she asked this man, “What are you doing to her?” and commanded, “Let her go.” Frederick ordered the daughter to sit down and, when she did not comply, told Mrs. Martin to tell her to do so or he was going to kill her (Mrs. Martin) immediately. The daughter then sat on the foot of the bed. Frederick told her to watch because she was next. Frederick had an “afro comb” which he started moving down below Mrs. Martin’s waist, and while holding her, he tried to cut her vagina with the comb, which was “filed down”. He had ripped her underclothes to shreds. Mrs. Martin then pushed him backward into a chair with her foot and told her daughter to go for help, saying that if one of them had to die, let it be her (Mrs. Martin). As the daughter escaped, Frederick removed a sheet Mrs. Martin had over her, tore her pants off, dragged her through the door and out the Jiving room door, in the front yard, he kept hitting her and stripping off her clothes, tried to jab her with the comb and pull her around the house, but, when either a person or a car approached, he threw her down, kicked her and ran away, as her sister and daughter were returning to the house. Mrs. Martin did not see Frederick again until 4:00 or 4:30 P.M., when she identified him as her assailant at police headquarters.
Appellant relies upon Douglass v. State, 105 Ark. 218, 150 S.W. 860, 42 LRA, NS, 524, which in turn is bottomed upon Paul v. State, 99 Ark. 558, 139 S.W. 287 and Anderson v. State, 77 Ark. 37, 90 S.W. 846. In each of these cases we found the evidence insufficient, but all lack an element present here. In Douglass, we said that taking hold of the victim’s hand, awakening her and drawing a pistol on her with a threat to kill her if she did not keep quiet were not overt acts constituting the beginning of, or a part of the perpetration of, the crime of rape, but were merely a part of the preparation for the act. In Paul, the assailant made improper remarks to the victim, placed his hand on her arm and offered her fifty cents. There were no acts indicative of an intention to rape her. In Anderson, the assailant never put his person in position to have sexual intercourse, never attempted to throw his victim down or interfered with her clothing.
This case may also be distinguished from Poole v. State, 234 Ark. 593, 353 S.W. 2d 359, not cited by appellant. In Poole, no part of the body of the victim of the assault was touched other than her mouth and throat. The assailant put a hand over her mouth, his arm around her neck, grabbed her by the throat and dragged her under a viaduct. This court held (4-3) that there was no evidence of an intention to rape.
It is clear from these cases that an intention to have sexual intercourse with the victim is not sufficient, unless an intention to accomplish that purpose by force may be ascertained from acts or words connected with the assault and there is some overt act toward accomplishment of that pur pose. In Poole, we recognized that intent to rape might be proved by circumstances surrounding the assault from which the intent may be inferred. See also, Wills v. State, 193 Ark. 182, 98 S.W. 2d 72; Boyett v. State, 186 Ark. 815, 56 S.W. 2d 182.
Here, the assailant removed the sheet with which his victim attempted to keep herself covered, tore her underclothes away, attempted to throw her down, touched her private parts with his comb and remarked to her daughter that she was next. These acts, when considered together, along with the assailant’s position on the bed constitute sufficient circumstantial evidence from which a reasonable mind might conclude that the assault here was the beginning and a part of the perpetration of the crime of rape and that it was made with the intention of raping the victim. As pointed out in Poole, the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault. We also said that there must be some act or words in connection with the assault to show the intent. We find that there were such acts and words in this case. In McGee v. State, 215 Ark. 795, 223 S.W. 2d 603, the assailant’s overt acts were held to be sufficient. There he grabbed the female victim “low down” on her person, put his hands “all over her”, knocked her down, persisted in the assault in a manner that resulted in the buttons being torn from her dress, and threw her down but failed to take the victim’s purse which he could easily have done.
In Boyett v. State, 186 Ark. 815, 56 S.W. 2d 182, the assailant forced his victim off a road into a forest, placed his hand over her mouth to prevent an outcry, threw her upon the ground, exposed her person by pulling down her underclothing and got down on his knees over her, but for some reason proceeded no further. This evidence was held sufficient to sustain a conviction of assault with intent to rape.
Not only is the case at bar readily distinguishable from the line of authorities relied upon by Frederick, but it clearly falls into the McGee-Boyett category.
Appellant requested that the court instruct the jury on the offense of simple assault as a lesser included offense. It is true that simple assault is a lower degree in the generic class of assault to rape. See Wills v. State, 193 Ark. 182, 98 S.W. 2d 72. Recently, we reversed a conviction of assault with intent to rape for the failure of the trial court to give an instruction on simple assault in Fike v. State, 255 Ark. 956, 504 S.W. 2d 363. The reasons given were that simple assault is necessarily contained within assault with intent to rape and the evidence showed the existence of all the elements of the lesser offense, the charge contained substantive allegations permitting the proof of the lesser offense, and the jury had the prerogative to accept all or any part of the testimony of any witness, whether controverted or not, and to evaluate the evidence and consider whether there was only an unlawful assault, even though the evidence was sufficient to sustain conviction of the greater offense.
Yet, we are justified in approving the refusal of such an instruction where the undisputed evidence shows that the accused was guilty of assault with intent to rape or nothing at all. See Smith v. State, 150 Ark. 193, 233 S.W. 1081. Furthermore, where it is clear that the accused is guilty of a more serious offense than the lesser offense on which he asks an instruction, it is not error to refuse an instruction on the lesser offense. Poole v. State, 234 Ark. 593, 353 S.W. 2d 359. The assailant of Mrs. Ward, at the very least, was guilty of an aggravated assault or assault with a deadly weapon. See Ark. Stat. Ann. § 41-605 (Repl. 1964). Consequently, there was no error in refusing the instruction on simple assault.
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George Rose Smith, Justice.
The appellant Graves, charged with robbery, was found guilty and was sentenced (as a habitual offender with three felony convictions) to imprisonment for 21 years. His present counsel, appointed to handle this appeal, argue five points for reversal. We affirm the judgment.
On April 13, 1974, according to the State’s proof, the appellant and Kenneth Agnew, masked and armed with pistols, held up a liquor store in Garland county and obtained more than 11,100 in cash and checks. Both men were later arrested and charged with robbery. They pleaded not guilty. Agnew, however, signed a confession and testified as a witness for the State in the court below. Another witness, the employee who was held up and robbed, identified Graves by scars upon his arms.
I. It is first argued that the trial court was wrong in refusing to permit Richard L. Slagle, the appellant’s trial counsel by appointment, to withdraw from the case. At a preliminary hearing Slagle asked to be relieved, because “our firm represents the establishment allegedly robbed.” Graves, however, in response to questions by the court, said that Slagle had done a better-than-average job in representing him in an earlier case. He considered Slagle to be competent and honest. “I don’t want to get rid of him. ... I would prefer that he represent me. I’d go along with him.” Upon that basis the court asked Slagle to continue to serve. After the trial the judge, in appointing counsel for the appeal, said to Graves that Slagle “has done an excellent job in my judgment; I don’t think he could have done any better.”
The court’s ruling was right. Although Slagle properly brought up the possibility of a conflict of interest, no real con flict is shown. It is not suggested that civil litigation arose from the robbery. There is no hint that Slagle had received any confidential information about the circumstances of the robbery. Finally, Graves (who was not inexperienced in criminal trials) asked that Slagle continue to represent him. Had that request been denied and had other counsel been appointed in Slagle’s place, Graves with some plausibility might well have sought a new trial upon the ground of having been denied counsel of his choice. We are not persuaded that Graves should be entitled to assert reversible error no matter which way the trial judge acted upon Slagle’s request to be relieved as counsel.
II. Agnew testified, over objections, about several statements that Graves had made in conversation as the two men were planning the robbery and driving together toward the liquor store where the hold-up took place. The statements were unquestionably competent as admissions made by a party to the case. Such admissions are admissible as original evidence, if relevant, simply because a party to the litigation is not in a position to disclaim responsibility for his own prior statements. Sherman v. Mountaire Poultry Co., 243 Ark. 301, 419 S.W. 2d 619 (1967); Bullington v. Farmers’ Tractor & Implement Co., 230 Ark. 783, 324 S.W. 2d 517 (1959); Conway v. Hudspeth, 229 Ark. 735, 318 S.W. 2d 137 (1958); McCormick on Evidence, § 262 (2d ed., 1972).
III. It is argued that the trial judge improperly commented upon the evidence in directing that $200 in currency, taken by the police from Agnew and produced in court, be returned “to its owner,” and that the jury disregard “any testimony that appears to be self-serving.” The short answer to this argument is that neither statement was objected to by defense counsel. Had such an objection been made the trial judge could readily have removed even the remotest possibility of prejudice by an admonition to the jury.
IV. Complaint is made that the trial court should have given Graves credit for three months spent in jail between hjs arrest and the date of trial. Graves had the burden of showing that his failure to make bond was due to indigency. Charles v. State, 256 Ark. 690, 510 S.W. 2d 68 (1974). The record con tains an affidavit of indigency, having to do only with a request for the appointment of counsel, but there is nothing to show either that Graves asked the court to allow him to make bond or that indigency alone was the reason that bond was not made.
V. Graves testified in his own defense. He now argues that the prosecutor should not have been permitted to bring out on cross-examination that the municipal court had bound him over to the grand jury. The argument is without substance. On direct examination Graves had already testified to the same effect: “I went to a preliminary hearing and was bound over to the grand jury.” Moreover, the petit jury was certainly aware that the accused had been charged with the offense on trial. We fail to see how the prosecutor’s reference to that undisputed fact could have been prejudicial, especially as the court gave the usual instruction that the charge was not to be considered as evidence of guilt.
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George Rose Smith, Justice.
In this workmen’s compensation case the Commission found (a) that the claimant Strange was an employee of the appellant pulpwood company at the time he was accidentally injured and (b) that the claimant’s injuries arose out of and in the course of his employment. The circuit court affirmed. For reversal the appellant employer contends that there is no substantial evidence to support either of the Commission’s findings of fact. We cannot agree.
Upon the first issue the proof shows that the appellant was supplying pulpwood to Continental Can Company. The appellant had some fifteen haulers who, like the claimant, cut the pulpwood (with the assistance of their own crews) and delivered it by truck to Continental’s yard. The claimant had ostensibly purchased his truck from the appellant. The contract, not in writing, required the appellee to pay for the truck, plus the cost of liability insurance, at the rate of $3.00 per cord of wood. The employer’s testimony indicated that the claimant’s truck would be taken away if he hauled for anyone else. The Commission, upon adequate substantial evidence, made the following findings of fact upon the issue of the claimant’s status as an employee:
The Commission is convinced that the relationship in this case is definitely one of employee-employer. The respondent exercised complete control over the claimant. The claimant did not purchase the uncut timber with his own money and he was certainly not independent from the respondent for the very reason that he would lose his truck if he hauled pulpwood to any other dealer. The respondent had control of the cutting, loading, and hauling of the logs and, on occasion would travel to the cutting sites to make sure that correct procedures were used in the cutting and hauling process. There is no hard and fast rule to determine whether a person undertaking to do work for another is an employee or an independent contractor, and each case must be determined by its own particular facts and we are convinced that the particular facts in this case reveal that the claimant was, indeed, an employee.
The significant difference between this case and the case of Pearson v. Lake Lawrence Pulpwood Co., 247 Ark. 776, 447 S.W. 2d 661 (1969), cited by the appellant, is that in Pearson the Commission found that the claimant was not an employee of the pulpwood company. We sustained the Commission’s decision, because it was supported by substantial evidence. In the case at hand we again sustain the Commission’s decision, for the same reason. That conclusion makes it unnecessary for us to consider the Commission’s additional finding that the appellant is estopped to deny its workmen’s compensation coverage of the appellee.
The second question is whether the Commission was justified by the evidence in finding that Strange’s injuries arose out of and in the course of his employment. Here the facts are not really in dispute. On the day of his accidental injury Strange was engaged in buying a tractor for snaking logs out of the woods in his work for the appellant. During the morning Strange borrowed the $200 down payment from his employer, an individual doing business as Dallas County Pulpwood Company. Strange arranged to finance the rest of the purchase at a bank in Warren. Having completed those arrangements Strange went home to get his truck (the one he was using in his work) and tow the tractor to the worksite in the woods, where he would resume cutting timber the next morning. As Strange was backing out of his driveway he brushed against some limbs, fell to the ground, and was run over by one wheel of the truck.
There is ample authority to sustain the Commission’s finding of fact that Strange was injured in the course of his employment. Blair states the general rule in his Reference Guide to Workmen’s Compensation, § 9.32 (1974): “Preliminary preparations by an employee, reasonably essential to the proper performance of some required task or service, are generally regarded as being within the scope of employment and any injury suffered while in the act of preparing to do a job is compensable.”
In Fels v. Industrial Commission, 269 Wis. 294, 69 N.W. 2d 225 (1955), the claimant was injured while repairing his own dump truck with the intention of taking it to the jobsite so that it would be ready to be loaded the following morning. The court upheld an award of compensation. In McBride v. Preston Creamery Ass’n, 228 Minn. 93, 36 N.W. 2d 404 (1949), the claimant was sanding an icy hill on a private road leading to his farm so he could drive his truck to work the next morning, to haul milk for his employer. In upholding the award the court said: “Here, it is undisputed that employee’s employment required the use of the private road which he was attempting to sand at the time of his injury. Such work was in preparation for his employment the following day and was work which was clearly a necessary part thereof.” Other pertinent cases include Sieck v. Trueblood, 485 P. 2d 134 (Colo. App., 1971); Stapleton v. State Highway Commn. of Kansas, 147 Kan. 419, 76 P. 2d 843 (1938); Frandsen v. Industrial Commn. of Utah, 61 Utah 354, 213 P. 197 (1923).
We do not imply, of course, that all injuries sustained by an employee in preparing for work are compensable. But here Strange was purchasing a tractor to be used in his work, his employer had approved the purchase by advancing the down payment, the whole transaction occurred during working hours, and Strange was injured while preparing to take the tractor to the jobsite. Those facts are substantial proof supporting the award.
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George Rose Smith, Justice.
Upon bringing this condemnation suit the highway department deposited $16,500 as estimated just compensation. The defendants’ testimony put the figure at about three times that amount. In appealing from a verdict and judgment for $21,500 the defendants argue that the trial court erred in the admission and exclusion of evidence.
The defendant-appellants are the owner, the lessee, and the sublessee of a filling station at the corner of State Line Avenue (a major thoroughfare) and 24th Street in Tex-arkana. The highway department, in order to widen State Line, is taking a strip about 17 feet wide and about 140 feet long. The strip includes three self-service pumps, a large canopy, signs, wiring, and other fixtures. After the taking, according to the landowners’ proof, the usuable area along State Line Avenue will be so narrow that the service station building and its appurtenances will have to be moved farther back from the street.
Evidence of relocation costs is admissible, not as the measure of damages but as an aid to the jury in its determination of before and after values. Ark. State Highway Commn. v. Carpenter, 237 Ark. 46, 371 S.W. 2d 535 (1963). To establish those costs the landowners relied upon the testimony of Ray Gammill, a Texarkana general contractor who had built more than a hundred service stations in Arkansas during the preceding 24 years. Gammill had been the low bidder for this relocation job. He testified that the costs would be $34,549.
The trial judge, on motion by the condemnor, struck Gammill’s estimate of costs, on the dual ground that it included the expense of repainting the building after its removal and that it included a provision for a temporary office during the removal. Upon further redirect examination Gammill explained that repainting was a necessary part of the relocation expense, because the metal building would unavoidably be scarred in the dismantling and re-erection process. Gammill also fixed the temporary office expense at $200.
The court was wrong in refusing to change its ruling upon the motion to strike, in view of Gammill’s additional testimony. If, as Gammill asserted without contradiction, repainting was an essential step in the relocation of the structure, then that flaw in his testimony had been corrected. In such a situation it is proper for the testimony to be offered again. Jones v. Railway, 53 Ark. 27, 13 S.W. 416, 22 Am. St. Rep. 175 (1890). Upon the other point, the $200 item could easily have been subtracted if the court decided to disallow it. In fact, that is the correct procedure when an expert witness specifies an amount improperly included in his valuation. Ark. State Highway Commn. v. Wallace, 247 Ark. 157, 444 S.W. 2d 685 (1969). Thus there was no sound basis for the court’s refusal to reconsider its initial ruling and admit into evidence the witness’s estimate of relocation costs.
The appellants’ second point for reversal stems from the trial courCs action in striking Gammill’s estimate of the reproduction cost of the building, on the ground that the landowners’ counsel did not intend to qualify Gammill as a valuation expert. Counsel were right, for the reason stated in Jahr’s Law of Eminent Domain, § 157 (1953):
“After the proof [by a building expert] is presented, it is important to remember that the building expert cannot testify to market value. He knows what it would cost to reproduce the improvement and he should not hesitate to admit his lack of knowledge of what the improvement could be sold for. The real estate witness testifies as to the amount the improvement enhances the market value of the land.”
The recommended procedure was followed in the court below. After Gammill’s estimate of reproduction costs had been erroneously stricken, counsel recalled an expert real estate witness and, in chambers, made an offer of proof based upon Gammill’s estimate. The testimony of both witnesses should have been admitted. In view of our ruling upon this point it seems to be unnecessary for us to consider the alternative argument that the real estate expert should have been allowed to base his testimony upon what he had learned about the original cost of the building.
A new trial being necessary, two other points must be mentioned. The court did not abuse its discretion in refusing to strike the testimony of the condemnor’s witness Shockley. Shockley’s estimate of reproduction costs was based upon conversations with local builders — a procedure that was approved in Ark. State Highway Commn. v. Bradford, 252 Ark. 1037, 482 S.W. 2d 107 (1972). Shockley’s vagueness about some particulars doubtless affected the weight of his testimony, but it cannot be said that he had no reasonable basis for his conclusions.
The landowners, in relocating the station, planned to put all the pumps along State Line Avenue rather than putting some of them along 24th Street, a less important thoroughfare. A witness for the highway department was allowed to testify that in the construction of a competing service station at the same intersection pumps had been installed along both streets. This was error, in the absence of a showing of points of similarity in addition to mere proximity. It was, of course, proper for the witness to testify in general terms, as he did, about prevailing practices with regard to the location of such pumps.
Reversed. | [
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Conley Byrd, Justice.
The controlling issue on this appeal by Michael Alexander is whether an uncounseled misdemeanor conviction permitted under Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), because only a fine was assessed, can be used as the sole basis to revoke a ten year suspended sentence entered upon a negotiated plea to burglary and grand larceny charges.
The record shows that on January 23, 1973, appellant was charged with burglary and grand larceny. After a determination of indigency, a lawyer was appointed to represent appellant, and on January 26, 1973, he entered a negotiated plea of guilty and received a ten year suspended sentence on both charges. Thereafter, on February 6, 1973, appellant was arrested on assault and battery charges instituted by Charles Tittle, appellant’s back door neighbor. On February 7, 1973, appellant pled not guilty and was tried upon the charge before the municipal court without benefit of counsel after the municipal judge had announced that upon conviction a fine only would be assessed. The fine assessed by the municipal court was $25.00 plus $16.50 costs for a total of $41.50. Appellant laid the fine out in jail. Within two hours after appellant was released from jail, he was picked up on a warrant issued on the State’s request for a revocation of the suspended ten year sentence. Of course, at that time it was too late to take an appeal from the municipal court. Counsel was appointed for appellant at the revocation hearing, but at that hearing the trial court revoked the ten year sentence upon the sole ground that the municipal court conviction violated the good behavior condition of the suspended sentence. The trial court would not permit evidence to be introduced by appellant showing the facts giving rise to the municipal court conviction.
Appellant did not appeal from the revocation but later filed a post-conviction proceeding pursuant to Criminal Procedure Rule §\. At that hearing he testified that he went over to Tittle’s house to ask Tittle to leave appellant’s wife alone, that while there Tittle backed his car across appellant’s foot and then he hit Tittle.
In considering the right of an indigent to the appointment of counsel in misdemeanor cases, the United States Supreme Court in Argersinger v. Hamlin, supra, commented as follows:
“We must conclude, therefore, that the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial. MR. JUSTICE POWELL suggests that these problems are raised even in situations where there is no prospect of imprisonment. Post, at 48. We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail. And, as we said in Baldwin v. New York, 399 U.S., at 73, ‘the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affecting his career and his reputation.’
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”
* * *
“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.”
Obviously, Argersinger v. Hamlin, did not involve the collateral use of a municipal court conviction and in the language used, the authorities are divided as to whether an uncounseled municipal court conviction involving only a fine can be used to revoke a suspended sentence or to enhance one’s length of imprisonment on a second or subsequent conviction. See Cottle v. Wainwright, 477 F. 2d 269 (5th Cir. 1973); Marston v. Oliver, 485 F. 2d 705 (4th Cir. 1973); State v. Reagan, 103 Ariz. 287, 440 P. 2d 907 (1968) and State v. Kirby, 33 Ohio Misc. 48, 289 N.E. 2d 406 (1972).
As pointed out by a law review writer in Argersinger v. Hamlin and The Collateral Use of Prior Misdemeanor Convictions of Indigents Unrepresented By Counsel at Trial, 35 Ohio St. L.J. 168 (1974), one can syllogistically reason that since a municipal court conviction without counsel and involving only a fine is permitted under Argersinger v. Hamlin, then the. conviction is valid and can be used collaterally to revoke a suspended sentence, even though the proximate effect of the conviction, as in this case, is to send the indigent to prison for ten years. This line of reasoning, of course, would soon vitiate the theory on the right to counsel as stated in Argersinger v. Hamlin, and would appear to be contrary to the last paragraph of the opinion which states:
“The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.”
The latter approach appears to us to be the more logical approach to one’s right to counsel. As demonstrated here, the appellant did not know that his mere conviction for Assault and Battery in municipal court would result in the revocation of his suspended sentence, and the municipal judge did not know that appellant had a suspended sentence. Consequently, we interpret Argersinger v. Hamlin as holding that an uncounseled municipal court conviction involving only a fine, and valid for that purpose, cannot be collaterally used to deprive a person of his liberty.
All of the authorities recognize that an indigent is entitled to the appointment of counsel at a revocation hearing, but if we accept the State’s argument here, the obvious question arises: Why should counsel be appointed at this late date, when the uncounseled municipal court conviction itself amounts to a revocation of the suspended sentence? To ask the question, as a practical matter, is but to answer the question that it was at the municipal court that the indigent needed counsel. Therefore, it follows that an uncounseled municipal court conviction cannot be used for the purpose of revoking a suspended sentence as the net effect thereof is “the actual deprivation of a person’s liberty” without “the guiding hand of counsel.” Of course, this does not mean that the responsible officials cannot show that the facts giving rise to the municipal court conviction are sufficient themselves to revoke the suspended sentence.
Reversed and remanded with directions to set aside the revocation of the suspended sentence.
Harris, C.J., Fogleman, J., dissenting; Elsijane Roy, J., not participating. | [
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George Rose Smith, Justice.
The appellants, husband and wife, filed this suit to quiet their title to part of a recently abandoned railroad right-of-way and to cancel a deed by which the railway company had purportedly conveyed the disputed part of the right-of-way to the appellee Pearson. This appeal is from a final order sustaining a demurrer to the appellants’ complaint, for failute to state a cause of action. The key question is whether the property description in the 1954 deed by which the appellants acquired their land must be said as a matter of law to have conveyed no interest whatever in land lying within the boundaries of the railroad right-of-way. Inasmuch as we have concluded that such a rigid interpretation of the deed is not necessarily the proper construction of its language, we hold that the demurrer to the complaint should have been overruled.
According to the complaint, with its exhibits, in 1881 certain landowners executed a right-of-way deed to the Frisco Railroad’s predecessor, “for the purpose of constructing and operating said Railway and the necessary conveniences and uses thereto attaining.” The easement appears to have been 300 feet wide for a distance of 1,500 feet and 100 feet wide for the remaining length of the grantors’ 80-acre tract. The deed provided that if the grantee ceased to use the land for the specified purposes the title would revert to the grantors or their heirs or assigns.
Apparently both the right-of-way and contiguous lands were thereafter platted as lots and blocks within the city of Fayetteville. In 1954 the appellants purchased lots that were abutted at the rear by the railroad right-of-way. The warranty deed to the appellants described the property as a certain Lot 12 and part of Lot 11, “except that part of it in the Frisco Railroad right-of-way.” The railroad company was then still claiming the right-of-way.
In 1968 the Frisco abandoned part of its right-of-way and by quitclaim deed conveyed it to the appellee Pearson. (The deed to Pearson also included Lot 16, but in their brief the appellants have relinquished the claim which their complaint originally asserted to that lot.) We are not now concerned about whether the Frisco’s deed actually conveyed title to Pearson, for the appellants must recover on the strength of their own title.
The disputed question of law centers upon the quoted language in the appellants’ deed, “except that part of it in the Frisco Railroad right-of-way. ” At the outset it is essential to bear in mind the sound distinction, recognized by our decisions, between a description purporting to stop at the edge of an abandoned right-of-way and one purporting to stop at the edge of a right-of-way still in use. We considered the former type of description in Pyron v. Blanscet, 218 Ark. 696, 238 S.W. 2d 636 (1951), where the grantor’s deed to the appellees contained a metes and bounds description extending to the edge of an abandoned railroad right-of-way and thence along that right-of-way for a given distance. In reluctantly holding that the grant did not extend to the center of the abandoned strip we said:
The appellees insist that the legal effect of their deed is to convey to the center line of the abandoned right-of-way, and several cases from other jurisdictions are cited to support this contention. In practical effect there is much to be said in favor of this view, since the opposite rule often leaves in the grantor the ownership of a narrow and inaccessible strip of an abandoned railroad right-of-way, street, alley, etc.
The appellants rely chiefly upon Fordyce v. Hampton, 179 Ark. 705, 17 S.W. 2d 869 [1929], and with some reluctance we concede that case to be controlling. There we held that although a conveyance of land bounded by an alley is usually presumed to carry title to the center line, the presumption does not arise when the alley has been vacated or abandoned. In the opinion we recognized the fact that two lines of authority exist and chose the rule that the grantee takes to the center of an abandoned easement only when the grantor explicitly expresses that intention. Those of us who are joining in this opinion do . not think the doctrine of the Fordyce case to be a desirable one, since a grantor does not ordinarily intend to retain title to an abandoned right-of-way that is of little practical value. But the Fordyce case laid down a rule of property .... If the rule is to be changed it should be done by legislation that operates prospectively rather than by judicial decision that is retroactive.
The rule, however, is — and should be — entirely different when the right-of-way is still in use. In that situation the conveyance extends to the center of the right-of-way unless a contrary intention is clearly stated. Thompson explains the sound reasons for the rule:
The intent to convey to the middle line of the highway arises from the presumption that the adjoining owners originally furnished the land for a right-of-way in equal proportions; and from the further presumption that such owner, in selling land bounded upon the highway, intended to sell to the center line of the street, and not to retain a narrow strip which could hardly be of use or value except to the owner of the adjoining land. The public policy of discouraging separate ownership of narrow strips of land is the basis for the rule.
***%•*
The presumption that a deed carries to the center of an abutting road applies to private as well as public roads. It also applies to railroad rights-of-way.
Thompson on Real Property, § 3068 (Repl., 1962).
As Thompson indicates, the rule favoring an extension of the conveyance to the center line of the right-of-way, “unless a contrary intention is clearly stated, ” rests upon two strong practical circumstances in its favor. First, that interpretation gives effect to what is almost certainly the intention of the parties. Among scores of similar statements the following comments upon the element of intention are typical:
In Barker v. Lashbrook, 128 Kan. 595, 279 P. 12 (1929), the court sensibly observed that “it is difficult to conclude that businesslike people, able to own, sell, and buy land, could reasonably have had in mind, at the time of the sale and purchase, the leaving of a long, narrow strip of land through the 120-acre tract that was to remain the absolute property of the grantor in the happening of a very possible contingency.”
In Brown v. Weare, 348 Mo. 135, 152 S.W. 2d 649 (1941), it was said: “We cannot conceive that it was the intention of the grantor to retain the title to the servient estate in the strip over which the right of way ran while disposing of the abutting land. Furthermore, as pointed out in Quinn v. Pere Marquette Ry. Co., 256 Mich. 143, 239 N.W. 376, 379, the term ‘ “right of way” has two meanings in railroad parlance — the strip of land upon which the track is laid — and the legal right to use such strip.’ See also, Tiffany Real Property, 3d. Ed., § 772. The grantor must have intended to except the use only.”
Again, the principle was by no means overstated in Shell Petroleum Corp. v. Ward, 100 F. 2d 778 (5th Cir. 1939), where the court declared: “If construed as appellees would have it, a result both unreasonable and clearly unintended would have been produced.For it is inconceivable that Gregory, plaintiffs’ grantee, would have bought a tract of land split into two tracts by a small narrow strip which the Canal Company was not only authorized to use as a lateral, but if appellees are right, appellees would be entitled, under the restrictions in the Canal deed, to close up and occupy and thus cut appellant’s land in two.
“If construed as appellant contends it should be, every part of the deed would be harmonized and reconciled, and a result would be produced both reasonable and without doubt, in accordance with what the parties to the deed intended.”
Secondly, as Thompson, supra, says, there is a sound public policy discouraging the separate ownership of narrow strips of land. The Kansas court, after reviewing the development of the established rule at common law, aptly summarized the considerations of public policy: “Experience revealed that separate ownership of long narrow strips of land distinct from the territory adjoining on each side, was prolific of private dispute and public disturbance, and public policy became an important factor in the interpretation. Therefore it became settled doctrine that a deed of land abutting on a road passes a moiety of the road, unless intention not to do so be clearly indicated.” Bowers v. Atchison, Topeka, & S.F. Ry., 119 Kan. 202, 237 P. 913, 42 A.L.R. 228 (1925).
We recognized and applied the rule in McGee v. Swearengen, 194 Ark. 735, 109 S.W. 2d 444 (1937). There the description in a deed ran in a southerly direction “to a street; thence in a westerly direction along the north line of said street” for a given distance. After recognizing the rule that a conveyance describing land as being bounded by a street or highway is generally held to indicate an intention to convey to the center thereof, we said: “When, in 1926, the appellant McGee purchased lot 8, so situated, and so described in the deed by specific measurements, projecting appellant’s south line to the north line of Nance avenue, she nevertheless acquired a fee to the center of Nance avenue. This, for the reason that there were no expressions showing an intent to limit the grant in a manner contrary to the general rule of construction. ” (Italics supplied.)
In the case at hand the chancellor reasoned that the pivotal language in the deed, “except that part of [the described lots] in the Frisco Railroad right-of-way,” could not be interpreted in any way except as an exclusion of the land itself from the deed. There are two answers to that point of view. First, a reference to the right-of-way can refer to the easement only, rather than to the entire fee simple. See Thompson, supra, § 3069. Secondly, such language may be intended to except the easement from the grantor’s warranty rather than to reserve the entire servient estate to the grantor. Thompson, § 3094. In this connection we may observe that the language of the granting clause in the appellants’ deed, “do hereby grant, bargain and, sell,” constitutes an express warranty in Arkansas. Ark. Stat. Ann. § 50-401 (Repl. 1971).
Judge William Howard Taft, in a statement that has been quoted many times, explained why the courts go to extreme lengths in construing narrowly such clauses as the one now in controversy: “The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modern decisions are even more radical in this regard then the older cases.” Paine v. Consumers’ Forwarding & Storage Co., 71 F. 626 (6th Cir. 1895).
Yet there is nothing unfair about such a strict interpretation of the language, because the draftsman of the deed has been put on notice by scores of cases that he must express his intention to reserve the servient estate so clearly that no reasonable construction can avoid his meaning. In the case at bar the draftsmen excepted that part of the lots “in” the railroad right-of-way. That language appears to be no stronger than the explicit metes and bounds description which we construed in McGee v. Swearengen, supra, yet we held the McGee conveyance to extend to the center of the street. Similarly, in Kassner v. Alexander Drug Co., 194 Okla. 36, 147 P. 2d 979 (1943), the deed described only the north 120 feet of two lots, but the court held that the conveyance extended to the center of an abutting railroad right-of-way on the south. Again, in the Shell case, supra, the grantor described a tract as containing 162 acres, “except therefrom 5.6 acres taken up by the rights of way of the Neches Canal Company lateral, making 156.4 acres herein and hereby conveyed.” Despite the grantor’s arguable intent to convey only 156.4 acres, the court held that his deed conveyed the entire 162 acres, subject to the rights-of-way.
There is no end to the examples that might be found in the authorities (with a few contrary cases) to illustrate the rule that the grantor must clearly and unmistakably state his intention to reserve the servient estate underlying the right-of-way. We find it hard to believe that the draftsman of the deed to these appellants, had he been familiar with the law and had he meant to effect the reservation contended for by the appellee, would have contented himself with the language that he selected. It would have been so much simpler for him to have explicitly stated that the grantors were reserving to themselves the entire servient estate within the boundaries of the railroad right-of-way. Any number of methods of similarly expressing affirmatively the pivotal intention to reserve an interest come readily to mind.
Finally, the case reaches us on demurrer to the complaint. When the description in a deed is doubtful the court may put itself in the position of the parties and interpret the language used in the light of attendant circumstances. Schweitzer v. Crandell, 172 Ark. 667, 291 S.W. 68 (1927). Although we think the better construction of the deed now in controversy to be that argued for by the appellants, we ought not to foreclose the possibility that extrinsic proof may be of assistance. The record does not disclose what reservations or exceptions were contained in the chain of title between the execution of the right-of-way deed to the railway company in 1881 and the execution of the warranty deed to the appellants in 1954. We do not know how much of Lots 11 and 12 were subject to the Frisco’s easement. Although the Frisco’s deed to the appellee shows that the company’s “main track” is still upon that part of the original easement that is contiguous to the land purportedly conveyed by the Frisco to the appellee, we have no idea whether that fact indicates that the various references to the “right-of-way” may have had some reference to the strip occupied by the tracks rather than to land susceptible of being used for other railway purposes. All the foregoing questions relate to evidentiary matters not required to be included in the appellants’ complaint. It is clear that the case is not one to be decided upon demurrer, upon the sole basis of a 12-word clause in the appellants’ deed and without regard to what may prove to be enlightening extrinsic proof.
Reversed, the demurrer to be overruled.
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Frank Holt, Justice.
This appeal results from a decree awarding appellee a mechanic’s and materialmen’s lien against certain real property owned by appellants. Appellant Davidson entered into a verbal agreement with appellee Lionel Smith. Smith was to restore a building to its original condition as a residence. Smith began work on the building sometime around the middle of September, 1973. About a month and one-half later, appellant decided to convert the building into his medical clinic. He discussed this change with the appellee, who undertook the job on a cost plus 10% basis. By December 31, 1973, appellant had paid appellee $27,552.40, part of which was a pre-payment for materials. On March 23, 1974, appellee presented a bill to appellant for material and labor plus 10% for “repairs and Remodeling in Old Building” and “New Part Addition” totaling $57,552.40. When appellant refused to pay appellee the balance, appellee brought suit alleging a total of $21,490.40 was due and unpaid. Simultaneously with Smith’s suit, Nabholz Supply Company, Inc., a supplier for the job, brought a suit against appellants for $10,445.35 for labor and materials furnished and used in the remodeling project. The claim of Nabholz was also included in appellee Smith’s complaint. By separate answer appellant Davidson interposed various defenses to Smith’s action. The court found that appellants owed appellee Smith, after certain credits, the sum of $19,103.50 plus interest ($14,862.09 plus interest of which is lienable against the interest of appellants in the real property). The court further found that Nabholz had “sold materials to and performed labor for use in the erecting of improvements and making repairs to existing improvements upon [appellants’ land] **** and further performed other labor and furnished other goods and materials unto the said Lionel Smith,” the appellee, and awarded a judgment against Smith in the sum of $10,514.37 plus interest ($8,511.87 plus interest of which is lienable against the interest of appellants in the premises). The court also found that the materialmen’s lien in favor of Nabholz was included within the mechanic’s and materialman’s lien which was awarded Smith and that satisfaction by Nabholz of its lien shall to that extent constitute a satisfaction of the mechanic’s and materialman’s lien in favor of Smith. It appears that pending this appeal the judgment awarded Nabholz was voluntarily paid by Davidson, the lien dismissed, and the judgment satisfied of record. Therefore, Nabholz is no longer a party in this appeal. The court also found that Smith was not precluded from maintaining his action for the balance due under his agreement by the provisions of Ark. Stat. Ann. § 71-701, et seq. (Supp. 1973).
For reversal appellant first contends that the court erred when it denied the motion of appellant to dismiss the claims of Smith pursuant to the provisions of §71-701, et seq, and in particular § 71-713. § 71-713 provides:
Any contractor who for a fixed price, commission, fee or wage, attempts to or submits a bid or bids to construct or contract to construct, or undertakes to construct, or assumes charge in a supervisory capacity or otherwise, of the construction, erection, alteration or repair, of any building, highway, sewer, grading or any other improvement or structure, when the cost of the work to be done by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more, without first having procured a license to engage in the business of contracting in this state, or who shall present or file the license certificate of another, or who shall give false or forged evidence of any kind to the Board, or any member thereof, in obtaining a certificate of license, or who shall impersonate another, or who shall use an expired or revoked certificate of license, shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than one hundred dollars ($100.00), nor more than two hundred dollars ($200.00) for each offense, each day to constitute a separate offense. No action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this act ****.
§ 71-701 provides:
For the purposes of this act [§§ 71-701 — 71-720], a “contractor” is defined to be any person, firm, partnership, copartnership, association, corporation, or other organization, or any combination thereof, who for a fixed price, commission, fee or wage attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a'supervisory capacity or otherwise, of the construction, erection, alteration or repair, or has or have constructed, erected, altered, or repaired, under his, their or its direction, any building, highway, sewer, grading or any other improvement or structure, except single family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more. It is the intention of this definition to include all improvements or structures, excepting only single family residences.
Here the appellants argue that Smith was a contractor within the terms of §71-713 and that he was in violation of the provisions of that statute which strictly prohibit the enforcement of the contract. Appellee Smith responds that he was a mere employee of appellant Davidson and the statute is, therefore, inapplicable citing Ewing v. City of Helena, 207 Ark. 702, 182 S.W. 2d 940 (1944). In a later case we construed the statutory meaning of the word “contractor” in Ark. St. Lic. Bd. for General Contractors v. Lane, 214 Ark. 312, 215 S.W. 2d 707 (1951). There the State Board sought to enjoin the activities of a “supervisor” who was directing the construction of a drive-in theater. The supervisor was solely employed by the company which was building the drive-in. He did not hold himself out as an independent operator. Subcontractors for the drive-in dealt with another official of the company and the supervisor merely oversaw their performance. He had no authority to hire or discharge any workman, paid no workman, procured no material and had no other employment. We affirmed the trial court’s finding that the supervisor was not a “contractor” within the purview of the statute. The court-first noted that licensing statutes of this type “are to be construed strictly in favor” of the individual, the appellee here, and “every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied.” We then referred to the definition of a “contractor” in 17 C.J.S. Contracts §11, which identified a contractor as a party who contracts or covenants to construct works or erect buildings, perform work or supply articles at a certain price or rate usually for a specific improvement under a contract with an owner. We then quoted “[Contractor is ordinarily understood to be a person who undertakes to supply labor and materials for specific improvement under a contract with the owner.” Observing that the supervisor there was merely an employee of the owner, and not an independent operator, we held that he was outside of the statute, he had no interest in any of the construction contracts for the drive-in, he had no hiring authority, and he paid for none of the materials. We reaffirmed the standards delineated in Lane in Ark. State Licensing Board for General Contractors v. Rosamond, 218 Ark. 529, 237 S.W. 2d 22 (1951).
In the case at bar it is undisputed that appellee Smith is unlicensed and the contract sought to be enforced by him involved far in excess of $20,000. Smith testified that he was merely a carpenter employee acting under Davidson’s supervision. Smith’s son, Lionel Jr., and son-in-law, Barnett, testified that the appellant Davidson or others acting on his behalf continually supervised their work and made constant changes. Smith admitted in his pretrial deposition that he was an unlicensed contractor with thirty years experience. It was only at the trial he protested that he was only a carpenter employee. Objective factors preponderate that Smith was indeed a contractor within the statutory proscription. Smith admittedly undertook to renovate and remodel appellants’ building on a cost-plus 10% agreement, which is fixed rate contract. The owner of Nabholz testified that he supplied material and labor to Smith on the Davidson project. He said he subcontracted on a labor and material basis and not as a contract figure. They billed Smith direct. Nabholz’s manager of the heat, air, plumbing, and electrical department testified he believed he was contacted by Smith and they talked about the work to be done and the price. He said he dealt with Smith. Further, there was no contract and the work was done on a cost-plus basis and charged to Smith. The manager of the floor covering department for Nabholz testified that he was first contacted by appellee’s son. However, Smith and none of his people “working for him” had anything to do with the carpet after he was contacted. He testified that the materials and labor furnished by his department were “all billed to Mr. Smith.”
An installer mechanic for a wallpaper and drapery business testified he was employed by Nabholz (Smith’s subcontractor) to install the rods and drapes and hang the wallpaper in the Davidson Clinic. To his knowledge Smith had nothing to do with the selection of the drapes and wallpaper or where they were to be hung. He testified further that Smith had no supervision or control over his work. “No one actually supervised” his work. The manager of the electrical department for Nabholz testified that Smith called him and asked “if he could do some work for him” on the Davidson Clinic and was furnished a “blueprint of sorts.” He agreed with Smith to do the “work” on a “set price on labor and 20% on material.” Any changes he made were through Smith and he had very little dealing with appellants. He dealt through Smith. The individual who did the billing for Nabholz testified that its account for the “Davidson job” was in Smith’s name and was billed direct to him. Approximately 90% of these tickets were signed and picked up by Smith or one of “his” people.
Dr. Davidson testified that his check, an exhibit, dated December 31, 1973, was made payable to “Lionel Smith, primary contractor, plumbers and electricians, subcontractors, Nabholz suppliers and materials, $19,795” and that their agreement of cost plus 10% of the material and labor was not to exceed $35,000 on the completed project. Smith acknowledged that a minimum of $30,000 was discussed as the cost of the original remodeling.
Barnett, Smith’s son-in-law, testified that Smith paid them and he had no real contact money-wise with Dr. Davidson. Lionel Smith, Jr., testified that he turned his “time” in to his father. He did not share in the 10% profits with his father. At trial Smith said he was a board member of the local County Home Builders’ Association. He and his two coworkers were being paid $4 per hour. He did some of the supervising of his co-workers but not altogether and paid them after he was paid by appellant Davidson. He paid his co-workers, however, “out of his own pocket” before Davidson paid him anything. The payment on the cost plus 10% job “was between [me] and Dr. Davidson.” He said he wasn’t the “boss” in one way of speaking.” He didn’t withhold taxes and each man reported his own taxes and social security reports. In his pretrial deposition, as indicated, Smith testified he was a contractor for the past thirty years.
In summary, Smith verbally agreed with Davidson to accomplish a medical clinic project at a fixed rate; i.e., cost of material and labor plus 10%. He received 10% profit on the labor of his own co-workers. He subcontracted work and material to Nabholz. He supplied the labor and tools, authorized workmen from Nabholz to come to the site, supply materials, perform work, and charged the items to himself. Smith paid Nabholz through his own account. Smith averred in his complaint that he performed labor and provided materials in the construction and remodeling of a building (for a medical clinic) and that a balance of $21,490 (of the total cost of $57,164.61) was due and unpaid by appellants. The complaint included the Nabholz claim which, as indicated, was charged direct to Smith. The chancellor found that Smith himself owed Nabholz for the material and labor furnished to him in the building project. It is undisputed that Smith is not licensed and that the costs on the cost plus 10% agreement were far in excess of $20,000, the statutory limit. We find the evidence preponderates that Smith’s activities, pursuant to his cost plus agreement, were not that of a mere foreman or employee and further that Smith was a “contractor” as defined in § 71-701 and within the standards enunciated in Lane, supra. Consequently, it becomes unnecessary to discuss appellants’ other contentions.
The decree is reversed and the cause dismissed. | [
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J. Fred Jones, Justice.
A church building in Texarkana was burglarized and two units of speaking equipment valued at 888 each were taken therefrom along with other items. The appellants were brothers who lived with their parents, Mr. and Mrs. Frank Prichard, about four blocks from the church. The Prichard home was searched under a search warrant and the stolen property was found. The appellants admitted the burglary and their admissions and also the stolen property were introduced into evidence at their trial before the circuit court sitting as a jury on the charges of burglary and grand larceny. They were both found guilty and Jerry Glen was sentenced to five years in the penitentiary on each count to run concurrently but suspended during good behavior. Charles was sentenced to five years on each count to run concurrently, four years of which was suspended during good behavior.
On appeal to this court the appellants question the admissibility of evidence obtained under an invalid search warrant because the warrant did not particularly describe the place to be searched. The search warrant and the affidavit upon which it was based described the premises as follows:
“Res. of Holland Prichard 1st House North of Euclid on west side white frame with green shutters also two storage houses behind and any vehicle on premises....”
At the hearing on motion to quash, the appellant Charles Prichard testified that he and his brother lived with their parents at 1617 Prospect in the city of Texarkana. He said that they were buying the property and had lived there about six months. He said the house was not identified in any way that a stranger would know that the Prichard family lived in it. He said that the name on the mailbox in front of the house was “Strachan. ” On cross-examination Mr. Prichard testified as follows:
“Q. Mr. Prichard, if you were going to tell a friend who had never been over to your home at that particular residence how to get there, and what to look for when they got there, how would you describe it?
A. On to the house?
Q. Yes.
A. I just tell them to turn off Euclid onto Prospect, and it’s the second house upon the hill on the left.
Q. Would it be a fair direction to say the first house north of Euclid on the west side of the street?
A. Yes, sir.
Q. And would it further be fair to say that it is a white frame house with green shutters on it?
A. Yes, sir, but there’s two—
Q. In other words, if you were going to tell your girl friend to come see you, or a boyfriend, or whoever, and they hadn’t been over there before, you would have told them that, and that would be a fair description of how to get to your house, and to know which house you lived in when they got there, is that right?
A. Yes, sir.
Q. How many storage building, or outhouses, are on the premises over there?
A. Two.
Q. What are they, garages, or houses, or what?
A. There’s a house right behind ours, and a little storage house.”
Mr. Prichard said there was another white house with green shutters on the street but their house was the only one that had two storage buildings behind it.
On redirect examination Mr. Prichard explained the discrepancy as to the first and second house by stating that there actually was one other house on the same side of Prospect between his house and Euclid, but that the other house faced on Euclid.
The officers serving the search warrant testified that they had no difficulty locating the Prichard house under the description in the search warrant.
In the statement Charles Prichard gave to the officers he said the church building was about four blocks from their home; that he and his brother had heard about the speakers that were in the church building; that they went to the church building at night, found the door locked but a window unlocked; that they went through the window, unplugged the loudspeakers and carried them to their home and hid them. He said that other items found in the home and offered in evidence were brought to the house by his brother, Jerry Glen, who told him he had obtained the articles from another boy.
The appellants argue on appeal that according to the evidence the residence searched was in no way identified as the residence of Holland Prichard; that the residence was actually at 1617 Prospect in Texarkana; that Euclid is an east-west street approximately ten blocks long; that it is intersected by one major highway and approximately eight other streets beside Prospect Street. They argue that there is a white frame house with green shutters directly next door to the house searched; that the residence searched was being purchased by Frank Prichard, and that the name on the mailbox in front of the house was not “Prichard, but Strachan.” The appellants argue that the proper description in the search warrant should have been “turn off Euclid onto Prospect and it is the second house on the left.” They argue that the officers making the search had never been to the house before or had the house under surveillance; that since the residence was urban property and had an identifiable address, that it could be easily confused with any one of the first houses which would be the first house on the west, north of Euclid on any of the other streets which intersect Euclid Street. The appellants contend that the facts in this case bring it within the purview of Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394 (1971), rather than our earlier case of Easley v. State, 249 Ark. 405, 459 S.W. 2d 410 (1970).
The appellants overlook Prichard’s own testimony that his home is actually the first house on the left after turning off of Euclid Street onto Prospect, as the other white house with green shutters was on the corner and faces on Euclid rather than Prospect. He also testified that his house was the only white house with green shutters with two storage houses in back. There was no evidence of other white houses with green shutters'on other streets in the area north of Euclid, and no evidence of any other house in the area occupied by a person named “Prichard. ” There was no evidence of any other white frame house with green shutters and two storage houses behind it on the north side of Euclid Street in its entire length. As a matter of fact Prichard testified that there was no such other house in the area and the officer who served the warrant and made the search, said he had no difficulty locating the house under the description in the warrant. We are of the opinion, therefore, that this case falls within the purview of Easley v. State, supra, rather than the Perez case.
We do not deem it necessary to set out in detail the distinction between the Perez and Easley cases except to say that the search warrant in Perez directed the searching officers to an apartment occupied by Jack Eaton at the “Curl Street Apartments at Curl and Washington Streets and in a black Ford Thunderbird, Kentucky License Number B67-413, and a red Volkswagen, Kentucky License Number M6-801, at said address in the City of Hot Springs, County of Garland, State of Arkansas.” There was no Jack Eaton occupying an apartment in the building but Perez appeared in the properly described automobile and his apartment, one of seven in the building, was searched.
The search warrant in Easley directed the officers to search a house “occupied by Bud Easley in or near Hiwasse in the County of Benton.” In that case, as in the case at bar, the officers had no difficulty in locating the house to be searched. It is true that in Easley the property was rural property but regardless of whether the property is rural or urban, a search warrant is directed to the officers charged with the responsibility of making the search; and the description should be specific enough to enable the officers to identify the person or premises to be searched and, at the same time, protect the person or property searched against unintended and unreasonable searches and seizures.
In Steele v. United States, 267 U.S. 498 (1925), the United States Supreme Court set out the test as to specific description required in search warrants under the Fourth Amendment as follows:
“It is enough if the description is such that the officer with a search warrant, can, with reasonable effort, ascertain and identify the place intended.”
In State v. Daniels, 46 N.J. 428, 217 A. 2d 610 (1966), a store, described in the search warrant as a confectionary store, was erroneously stated to be at 31 Avon Place rather than at 35 Avon Place. In that case the New Jersey Supreme Court said:
“The test is not whether the description is completely accurate in every detail but rather whether it furnishes a sufficient basis for identification of the property so that it is recognizable from other adjoining and neighboring properties. United States v. Pisano, 191 F. Supp. 861 (S.D. N.Y. 1961).
We must therefore analyze the facts in the matter sub judice to ascertain whether the search warrant complied with the basic tenet set forth in Steele, supra. This subject must be approached on a common sense basis rather than upon a super technical basis requiring elaborate specificity.”
The appellants seem to contend that the burden was on the state to show that no comparable residences to that of the appellants existed on any of the other intersecting streets north of Euclid Street. The state seems to contend that the burden was on the appellants to show the possibility of another house or houses that could be confused with the one described in the warrant. We are inclined to agree with the state. In United States v. Joseph, 174 F. Supp. 539 (E.D. Pa. 1959), the address of the building searched was 209 Minersville Street, but the warrants used identified the premises as 209 Court Terrace and 523 Minersville Street. In finding the warrant description to meet constitutional requirements, the court said:
“In any case, if defendant is seriously taking the position that the address is or was insufficient, his argument is doomed to failure by the settled rule that all that is required is that the description suffice to enable officers to ascertain and identify the place intended by reasonable effort. Steele v. United Stales, 267 U.S. 498 (1925); United States v. Klaia, 127 F. 2d 529 (2nd Cir. 1942).
No showing was made that there was any adjoining building likely to be confused with the Joseph premises, regardless of which address or which entrance was specified.”
In Johnson v. State, 469 S.W. 2d 581 (Tex. Cr. App. 1971), the court said:
“In another ground of error, appellant complains that there was a variance between the premises described in the search warrant and the premises actually searched. The warrant designates 872 Bettina Street. The proof shows that the apartment searched was located at 872 Bettina Court. Reliance is had upon Balch v. State, 134 Tex. Cr. R. 237, 115 S.W. 2d 676. In Balch it was made apparent that the address designated in the warrant was a vacant lot. No such fact exists in this case. There is no showing that there were two streets named Bettina in Houston and therefore, Balch supra, is not controlling.”
In Owens v. Scafati, 273 F. Supp. 428 (D. Mass. 1967), the petitioner sought a writ of habeas corpus on the ground that his conviction resulted from evidence seized under a search warrant which did not particularly describe the place to be searched. In approving the warrant the court said:
“With regard to the contention that the search warrant failed to describe the premises with particularity, * * * there was no showing at any stage of the State court proceedings, and there has been no showing to date, that 1 Thomas Park appeared to be a multiple unit dwelling. The State 'court record indicates, to the contrary, that there was only one door from the outside, which opened into a hallway which gave access to the entire house. There has been no showing that the police officers knew or should have known from its physical appearance that 1 Thomas Park was a multiple dwelling house when they applied for the warrants, there has been no showing that the officers knew or should have known that anyone other than the Owens brothers lived therein, and there has been a showing that the officers did know that the Owens lived at 1 Thomas Park.”
At 79 C.J.S., Searches and Seizures, § 98, the following general proposition is set forth:
“One who seeks affirmative relief on the ground that officers violated his constitutional rights in making a search has the burden of establishing facts from which it will affirmatively appear that his rights were invaded.”
In State v. Holt, 415 S.W. 2d 761 (Mo. 1967), the accused was convicted of possessing an apparatus for the unauthorized use of narcotic drugs. The appellant sought reversal because, inter alia, the search which resulted in the seizure of certain articles was unreasonable and void and that the evidence so taken should have been suppressed. In denying this contention the Supreme Court of Missouri said:
“Not only must defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions. (Cases cited). Not only is the legality of a seizure properly determined by a motion to suppress the evidence but the burden is on the defendant to offer evidence and affirmatively demonstrate the illegality of the search and seizure.”
Thus, the burden of proof, in the sense of producing evidence, is clearly on the defendant who alleges that the warrant is unconstitutional.
In State v. Gailes, 428 S.W. 2d 555 (Mo. 1968), the defendant was convicted of illegal possession of a stimulant drug. Though this case is not exactly on point because the search was one without a warrant, the general rule was set out by the court as follows:
“Defendant was not denied but on the contrary was given every opportunity to establish the unlawfulness of the search and of the arrest of defendant, but simply failed to sustain the burden which rests upon a defendant to ‘affirmatively demonstrate the illegality of the search and seizure.’ State v. Medley, Mo. Sup., 400 S.W. 2d 87.”
In State v. Bailey, 23 Conn. Sup. 405, 184 A. 2d 61 (1962), the defendant appealed on the sole ground that thé court erred in denying his motion to suppress or strike the evidence from the record because the state failed to introduce the search warrant as part of its case. In holding that the state was not required to put the warrant into evidence the Connecticut Court said:
“ ‘Various documents or instruments issued by authority of law and approved by the courts or public officers are presumed to have been regularly issued. This is true as to search warrants * * *.’ 1 Wharton, Criminal Evidence (11th Ed.) § 160, p. 176; 47 Am. Jur. 521, § 31. ‘The burden rests upon the defendant to prove the invalidity of the search warrant.’ Wharton, op. cit. § 197, p. 219.”
In People v. Wilson, 256 C.A. 2d 411, 64 Cal. Rptr. 172 (1967), a defendant, who was convicted of unlawfully possessing heroin for sale, alleged error, inter alia, because at the evidentiary hearing the magistrate held the burden to be on the defendant to go forward in contesting the warrant and that each side produce the witnesses they wanted. The California Court of Appeals for the Second District dismissed this argument saying:
“It has been held that the burden of establishing the invalidity of a search warrant is upon the defendant. Williams v. Justice Court, 230 Cal. App. 2d 87, 40 Cal. Rptr. 724 (1964).”
See also, People v. Carson, 4 Cal. App. 3d 782, 84 Cal. Rptr. 699 (1970).
In State v. Rangel, 12 Ariz. App. 172, 468 P. 2d 623 (1970), a defendant convicted of possession of heroin contended that the search warrant used to acquire the damaging evidence was invalid. The court held that in order to determine the validity of the warrant, it must view the affidavit presented to the magistrate and any sworn testimony given him. The record contained neither the affidavit nor any testimony before the magistrate. The Court of Appeals of Arizona, Division 1, said:
“While we may sympathize with the defendant’s allegation, we are compelled to overrule any objections he may have as to the insufficiency of the warrant as the burden is upon him to so prove and the record imports verity.”
We conclude that the description of the premises to be searched in the case at bar was sufficiently accurate and specific to enable the officers to find it without confusion or difficulty, and that the burden rested on the appellants to offer proof to the contrary.
The judgments are affirmed.
Byrd, J., concurs. | [
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Frank Holt, Justice.
A jury convicted appellant of the crime of maiming (Ark. Stat. Ann. § 41-2502 [Repl. 1964]) and imposed a sentence of seven years in the Department of Correction. We first consider appellant’s contention for reversal that the court erroneously permitted two officers to testify about certain statements made to them by the appellant preceding the alleged offense. We find no merit in this contention.
Each of these officers testified that the appellant came by the jail where they were working and in a conversation voluntarily stated to them that he was “mad” and intended to “hurt” the prosecuting witness that night. Appellant asserts that this evidence was inadmissible since it contravenes Miranda v. Arizona, 384 U.S. 436 (1966). Clearly that case only requires that a person “taken into custody or otherwise deprived of his freedom of action in any significant way” be advised of his constitutional rights “when questioning” is “initiated bv law enforcement officers.” We have said that Miranda is not to be so interpreted that a defendant cannot “voluntarily open his mouth. ” Hammond and Evans v. State, 244 Ark. 1113, 428 S.W. 2d 639 (1968). It is uncontradicted, in the case at bar, that the appellant volunteered to the officer-witnesses his immediate plan to commit an assault upon the prosecuting witness. It follows Miranda is not applicable.
Neither can we agree with the appellant that his oral statements to these officers are within the scope of our recently enacted discovery statute. Ark. Stat. Ann. § 43-2011.2 (Supp. 1973). This statute reads in pertinent part:
Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney. . .
Therefore, the trial court correctly ruled the discovery statute is inapplicable in the case at bar.
Neither can we agree with appellant’s contention that the trial court abused its discretion in refusing to grant appellant’s motion for a continuance when it was learned on the day of the trial that the state would introduce evidence through these two officer-witnesses that the appellant had told them he intended to harm the prosecuting witness. It appears that the prosecuting attorney promptly advised the appellant’s counsel as quickly as he learned that appellant’s inculpatory statements were made to these two officers. Suffice it to say that appellant was furnished, as requested, the names, addresses and occupations of the two witnesses in advance of the trial. Appellant had adequate opportunity to interrogate these witnesses with reference to any knowledge they had relating to the alleged offense. It is well settled that the granting of a continuance is within the sound discretion of the trial court. Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500 (1973); and Perez v. State, 236 Ark. 921, 370 S.W. 2d 613 (1963). In the case at bar, the appellant has not demonstrated that the trial court abused its discretion.
The appellant also contends that the court abused its discretion in admitting a broken wine bottle into evidence because it was not adequately linked to the alleged crime. We do not agree. One day following the commission of the alleged offense, a broken wine bottle was removed from the scene of the crime. The victim testified that he and the appellant lived at the same residence and that appellant came into his room and cut him with a broken wine bottle. Their landlady testified that she saw the appellant holding a bottle of wine before the offense was committed and immediately afterwards she saw a broken bottle in the room. The broken bottle was relevant to the theory of the state’s case and tended to prove the matter in issue in support of the victim’s credibility. Williams v. State, 250 Ark. 859, 467 S.W. 2d 740 (1971); Gross v. State, 246 Ark. 909, 440 S.W. 2d 543 (1969); and 22A C.J.S. Criminal Law § 601.
Appellant also contends that the court erred in permitting the victim to testify because he was incompetent. We need not consider this contention inasmuch as there was nr objection which is required by § 43-2725.1 and it is raised fo the first time on appeal. Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972). Furthermore, the trial court conducted a hearing in chambers and found the witness to be competent inasmuch as he testified that he understood the nature and obligation of an oath and he would be subject to punishment for false swearing. This comports with the proper standard. Keith v. State, 218 Ark. 174, 235 S.W. 2d 539 (1951); and Allen v. State, 253 Ark. 732, 488 S.W. 2d 712 (1973). Also trial courts are given broad discretionary powers in determining the competency of a witness and we do not find error unless there is demonstrated a clear abuse of that discretion. Allen v. State, supra; and Ray v. State, 251 Ark. 508, 473 S.W. 2d 161 (1971). In the case at bar, we certainly cannot say the court abused its discretion.
It is next contended that the trial court erred in permitting prejudicial cross-examination of the appellant. The appellant was asked on cross-examination if he had committed certain other criminal acts. We have consistently approved the format of this type of questioning on cross-examination, when asked in good faith, to test the credibility of the witness, the state being bound by the answer. Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974). In the case at bar we find no prejudicial cross-examination is demonstrated by any questions propounded.
Finally, it is asserted by the appellant that the evidence is insufficient to support the verdict. In determining the sufficiency of the evidence upon appellate review, it is only necessary to ascertain that evidence which is most favorable to the appellee and if any substantial evidence exists then we affirm. Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302 (1970). The state adduced evidence that the appellant made statements that he was going to harm the prosecuting witness a short time before he did so. Appellant was observed holding a wine bottle and drinking from it at the scene of the crime a short time before it occurred. Appellant was angry and broke into the prosecuting witness’ room. The prosecuting witness testified that the appellant cut him several places about his body with a broken bottle resulting in the loss of an eye. Immediately following the crime the prosecuting witness was found bleeding profusely from his wounds and blood, broken glass and a broken bottle were observed at the scene. Certainly this evidence is amply sufficient without detailing further evidence to sustain the jury’s verdict.
Affirmed. | [
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Cari.eton Harris, Chief Justice.
Charles Hooper and Robert Westlin were charged by Information in the Madison County Circuit Court with wilfully and feloniously having in their possession 19 plastic containers of marijuana with the intent to deliver. On trial, appellants were found guilty and their punishment fixed at 10 years imprisonment and a fine of 35,000 each. From the judgment so entered, appellants bring this appeal. For reversal, seven points are relied upon which we proceed to discuss.
It is first asserted that the court erred in compelling appellants to go to trial without a transcript of a certain habeas corpus proceeding. On October 4, 1973, the Madison County Circuit Court conducted a hearing on a petition by appellant for a writ of habeas corpus, appellants alleging that they were being held illegally. Following the hearing, the petition was denied and the case set for trial. Thereafter, a motion was filed seeking a transcript of the testimony taken at the hearing, particularly that of the sheriff and a member of the state police. No facts are set out in the motion in support of the request, but in their argument in this court, appellants state that relative to the testimony regarding the search and seizure of the marijuana, “appellants believe” that that testimony “may be in conflict with testimony introduced at the trial." No mention is made of any conflicting evidence and it would appear that appellants just hoped there would be a conflict. The allegations were, of course, insufficient to justify the court in granting the motion, and no prejudice has been shown to have resulted from the court's action. One of the motions filed also contained a request for a continuance based on the refusal to furnish the transcript, which was denied, but this is not argued in the brief before this court. At any rate, the granting of a continuance is within the sound discretion of the trial court. Jackson v. State, 245 Ark. 331, 432 S.W. 2d 896. No abuse of that discretion is here shown.
It is next asserted that the court erred in compelling the appellants to be tried by a jury at the request of the prosecuting attorney, appellants having waived their right to a trial by jury. Ark. Stat. Ann. § 43-2108 (Repl. 1964) clearly provides that a defendant may waive trial by jury, except where the sentence of death may be imposed, “provided the prosecuting attorney gives his assent to such waiver." Here, the prosecuting attorney did not give his assent. The contention is thus without merit.
It is contended that the court erred in admitting into evidence the marijuana obtained from appellants’ vehicle by an illegal search and seizure. The evidence reflects that Sheriff Ralph Baker of Madison County received information from an informer that appellants would have an amount of marijuana in their black 1964 Ford, which would be in a large black plastic bag, in small packages, and would be located under the driver's seat. This information, acquired from, according to the sheriff, a reliable informant, was received around 8:00 P.M., and apparently the sheriff started out immediately searching for the automobile. 'This is evidenced by the fact that State Trooper Winded Byrd, who was not on duty at the time, was called by the sheriff and told that he (sheriff) had information that some marijuana was going to be moved shortly on that particular night; according to Byrd, “He said that he’d like for me to help and I needed to come pretty fast.” The trooper stated that he did not have time to put on his uniform and he accordingly answered the call in “civilian” clothes. The transcript does not reveal exactly when appellants’ car was first observed, but it is clearly indicated that this occurred not too long after the search began. After catching sight of the automobile in question, the officers got behind the car, pulled up close to appellants and tried to stop them; when this happened, according to the sheriff, “They took off.” The officers, traveling in an unmarked car, but equipped with a portable blue light, gave chase, according to the testimony, for about 40 minutes, traveling at speeds of better than 60 miles per hour even on a dirt road. The fugitive car stopped at the Westlin home and the occupants jumped out and started toward the house. The sheriff “hollered” at them and they stopped. The officer officer testified that the driver’s side door was completely open and he walked directly to the car, reached under the front seat and pulled out the black bag, the bag being partly exposed. The sheriff said that this bag was located in exactly the place mentioned by the informant, and upon opening same, it was found to contain 18 plastic bags of marijuana. This, says appellants, was an illegal search and seizure. We do not agree. The time element is of prime importance. It is evident from reading the record that the information given the sheriff occurred a short time before appellants were located; of course, the information included the fact that the illegal contraband would be in this automobile, which, of course, could be moved at any time. The circumstances clearly reveal that there was no time to obtain a search warrant; even the accompanying trooper did not have time to change into his uniform. To locate a judge, or magistrate, after office hours is not always easy to accomplish. And, it definitely appears from the record that had such an effort been made, the car would have been gone from the vicinity. As far as the actual act of taking the marijuana from the automobile, the car door was wide open and the black bag partly visible; the wild chase of the automobile certainly was sufficient to justify the sheriff and trooper in believing that the car contained the marijuana about which the informant had spoken. The circumstances bear some similarity to those in Cox v. State , 254 Ark. 1, 491 S.W. 2d 802, when, deputy sheriff received information by telephone that Cox and others had gone into a store, returned to their automobile with a shopping bag and driven off, after which articles of merchandise in the store were discovered missing. The car was described to the deputy sheriff who relayed the information to State Trooper Hale. This officer observed a car answering the description, stopped same, saw sacks on the front floorboard partly open with articles of merchandise and we held that Hale was justified, from the information that he had received, in stopping the automobile, and upon observing the merchandise on the floorboard, in ordering the car driven back to town. We commented:
“To first have obtained a warrant would mean, of course, that the occupants of the car could have driven on, with full opportunity to dispose of the merchandise in the vehicle. In other words, there was complete justification for an intrusion (considering the detention of the car as an intrusion). These were exigent circumstances requiring instantaneous action to preserve the existence of the evidence sought to be seized.”
In Cox, there is a comprehensive discussion of pertinent federal cases, including Coolidge v. New Hampshire, 403 U.S. 443, Chambers v. Maroney, 399 U.S. 42, and Carroll v. United States, 267 U.S. 132, and we quoted from Carroll as follows:
“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”
Certainly, under the circumstances herein, the officers had reasonable cause to believe that the contents of the automobile offended the law, and we hold that the warrantless search was proper and legal.
It is next asserted that the court erred in permitting a bag of marijuana, which had been taken from Westlin during a search at the jail, to be admitted into evidence. We do not agree and no further authority is needed to establish that the contention is without merit than the recent case of United States v. Robinson, 414 U.S. 218, wherein Robinson was arrested for a traffic offense, and a search resulted in the seizure of heroin capsules which were admitted into evidence at the trial, such capsules being found in a crumpled cigarette package in the defendant's coat pocket. The district court was reversed by the United States Court of Appeals for the District of Columbia, that court holding that the search was violative of the Fourth Amendment. The United States Supreme Court, however, reversed the Court of Appeals, disagreeing with that tribunal in several respects, but the remarks of the court most pertinent to the issue now before us were as follows:
“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment."
We have already said that the intrusion wherein the black bag was discovered in the car was lawful, and that being true, the search of Westlin at the jail was entirely reasonable.
Appellants contend that they had the constitutional right to be confronted by the “reliable" informer, who had given to the sheriff the information concerning the possession of marijuana by appellants. We do not agree under the circumstances heretofore set out that appellants were entitled to this information. In Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497, the State presented an undercover investigator as a witness who testified that he went to the defendant’s apartment, accompanied by two confidential informers, and that one of the informers told the defendant “We wanted some grass.” Thereupon, the defendant handed to the undercover agent a bag of marijuana. This act was denied by the defendant, and the testimony of the undercover agent's com panions during the alleged transaction was therefore relevant and material to contradict the State’s evidence. We held that the court erred in refusing to compel the prosecution to divulge the identity of these two informers. However, in West v. State, 255 Ark. 668, 501 S.W. 2d 771, the same contention was held to be without merit. In so holding, this court said:
“Often, determination whether disclosure is required is ultimately made upon the basis of whether the informant was present or participated in the alleged illegal act with which the defendant is charged or whether the informer merely furnished information concerning criminal activity to law enforcement officers, Roviaro v. United States, supra. See Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497. This distinction, which is not always conclusive, is important because the testimony of an informant who is also a witness may well be the sole means of amplification, modification or contradiction of the testimony of prosecution witnesses and is therefore essential to the preparation of an adequate defense. Officer Reeder of the Pulaski County Sheriff's Department testified the informant in this case was not a participant or an eyewitness to the crime with which appellants are charged. The informant’s tip caused sheriff’s officers to have the victim and her companion view two photographic showups from which they identified appellants. There is no evidence that the informant possessed any knowledge of the crime which was vital to the preparation of appellants' defense. Appellants’ failure to show the existence of any facts or circumstances which would require the identity of the person who supplied sheriff’s officers with the lead connecting appellants to this crime to be disclosed is fatal to their contention here.” ,
In the instant case, there is no evidence that the informant possessed any knowledge which was vital to the preparation of appellants’ defense; no such objection, or allegation, was made, and in fact, the possession of the marijuana was admitted. The point is without merit.
It is next asserted that the trial court erred in not granting a motion for a new trial. The motion sets out several different grounds but the one referred to in the present argu- merit was the sixth ground which alleges that “The verdict is contrary to the law and the weight of' the evidence.” In support, it is simply stated:
“The Sheriff’s uncorroborated statement that he seized ‘about one-half pound of marijuana' is inconclusive, and there is no proof offered by the State that appellants delivered or intended to deliver the marijuana.”
It is true that there was no evidence offered by the State that appellants intended to sell or deliver the marijuana and the conviction is based on the statutory presumption. Ark. Stat. Ann. § 82-2617 (d) (Supp. 1973) provides that possession by any person of a quantity of marijuana in excess of one ounce creates a rebuttable presumption that such person possesses same with intent to deliver. The section provides, however, that the presumption may be overcome by submission of evidence sufficient to create a reasonable doubt that the person charged intended to deliver.
Whether there was error in the instruction given by the court with regard to the presumption is not raised by appellant, and is therefore not before us. Actually, the import of appellants’ argument is that the act is unconstitutional since it permits the conviction for the offense of intending to deliver the controlled substance without actual evidence that the party possessing same so intended. Both appellants testified that the marijuana was purchased for their own use, i.e., they intended to smoke it themselves, but, of course, the jury was not compelled to believe them. In Slone v. State, 254 Ark. 1011, the same question was before this court and in a comprehensive opinion we held the provision here in question to be valid and sustained the conviction. That case is a complete answer to the present argument and further discussion is not indicated.
Finally, it is asserted that the verdict of the jury is excessive and indicates passion and prejudice on the part of the jury. We have held that we have no authority to reduce a sentence that is not in excess of statutory limits, and we have consistently, in recent years, followed that rule. In Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518 (1963), we said:
“Counsel vigorously maintains that the punishment is so severe that it should be reduced by this court. It is true that in a number of the older cases, including one as recent as Carson v. State, 206 Ark. 80, 173 S.W. 2d 122, we have assumed the power to mitigate the punishment imposed by the trial courts. The right to exercise clemency is, however, vested not in the courts but in the chief executive. Ark. Const., Art. 6, § 18. Our latest cases have uniformly followed the rule, which we think to be sound, that the sentence is to be fixed by the jury rather than by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.”
In 1971, the Arkansas General Assembly enacted Act 333 (Ark. Stat. Ann. § 43-2701 — 2725.2 [Supp. 1973]), Section 12 (§ 2725.2) attempting to vest this court with the authority to reduce sentences that it deemed excessive. In Abholt V. State, 256 Ark. 558, 508 S.W. 2d 733 (1974), we construed this provision, stating:
“Although we have previously found it unnecessary to pass directly on the constitutionality of this provision insofar as it might be construed to empower this court to reduce a sentence otherwise proper and within statutory limits in cases arising after passage of the act, it should be clear that legislative action cannot override constitutional provisions. We strongly intimated that this act was ineffective to overrule the holding in Osborne v. State, supra, in Hurst v. State, supra, and cited in the case of People v. Odle, 37 Cal. 2d 52, 230 P. 2d 345 (1951). In that case a similar statute was construed by the California court to do no more than authorize it to reduce the punishment, in lieu of granting a new trial, when the only error found on appellate review related to the punishment imposed and was prejudicial. It specifically held that the statute granted no power to modify a sentence where there was no error in the proceeding. To construe the statute otherwise, said the court, speaking through Justice Traynor, would give the reviewing court clemency powers similar to those vested in the Governor by the California Constitution. That court clearly recognized that any construction of the statute extending the power of the appellate court any further would raise serious constitutional questions relating to the separation of powers. We think the construction given to the California statute by that state's Supreme Court was correct and that the same construction should be given our statute. When given that construction, it is clearly constitutional. If construed to give this court the power to reduce a sentence in the absence of error pertaining to the sentence, the statute would be unconstitutional for violation of Art. 6, Sec. 18 and Art. 4, Sec. 2 of the Arkansas Constitution, and upon the authority of Osborne v. State, supra.”
Finding no reversible error, the judgment is affirmed.
It is so ordered.
Byrd, J., concurs.
The amount alleged to have been involved v\as approximately one-half pound.
Certiorari denied by United States Supreme Court. See 414 U.S. 923.
Simmons v. State, 227 Ark 1109, 305 S.W. 2d 1 19, Simmons was convicted of first degree murder and his punishment fixed at life imprisonment. '1'herc, we reduced the sentence to 21 years but the basis of such reduction was that the ewdence did not reveal that tire killing occurred with premeditation and deliberation, elements essential to a conviction for first degree murder. We accordingly reduced to the maximum for second degree murder. | [
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John A. Fogleman, Justice.
This is an appeal from a decree quieting title to eight acres of land in the appellees, Donald Ray and Debbie Kay Franklin, on their petition in the chancery court. Appellants, Stolz, offer five points for reversal.
Appellants and appellees, holders of adjacent properties, trace a common source of title from G. H. and Beulah Mae Newlin who were common owners of all the land conveyed to appellants and one Garland Smith, appellees’ grantor. From the Newlins, Smith purchased 40.35 acres, more or less, 39.55 acres of which he conveyed in fee simple absolute by warranty deed to appellees on 23 January 1974, less .8 acre conveyed away in the interim. This acreage is traversed by the Union Star Road; eight acres lying to the east thereof constitute the tract in dispute. The record title of appellees is not really questioned. Appellants purchased a forty-acre tract from Newlin to the east of the above described tract and adjacent to the eight acres in controversy. No fence separated these properties at the time of any of these transfers.
On 13 March 1974, the appellees filed their petition to quiet their title to all the land described in their warranty deed. They also sought injunctive relief to permanently restrain appellants from trespassing upon the land or interfering with appellees’ possession thereof and asked recovery of compensatory damages for trespass and conversion of hay and fencing materials removed therefrom, punitive damages, and costs from appellants. Appellants answered denying each and every material allegation of the petition. This general denial was the only pleading filed by them, except for a motion to quash service of process, which was denied. At no time did appellants plead or assert the affirmative defense of ádverse possession; nor did they offer a motion for the transfer of the cause to the circuit court.
The appellees’ evidence showed that the description in their warranty deed covered the “disputed” eight acres; that Smith and the appellees had paid all the taxes assessed on the land included in the description; and that the portion of appellees’ land west of the Union Star Road was enclosed by a good fence and in the actual possession of appellees, their predecessor in title, Smith, or their lessees over the years. According to the testimony, the eight-acre tract east of the road was not enclosed by a good fence, although there was a fence of sorts which did not, according to the testimony of several witnesses, suffice to restrain cattle set out to pasture therein, until after the road was widened and a new fence constructed some two or three years before the appellees filed their petition. Appellants revealed in later testimony that they had pastured cattle there and that indeed some had escaped and had to be pastured elsewhere. In his pleadings and in his testimony, corroborated by the testimony of Milton Lofton, Donald Ray Franklin disclosed that he had constructed a fence along the eastern boundary of the acreage to the east of the Union Star Road after having had a survey made in late 1973. Shortly thereafter, Wesley Stolz had the fence destroyed and removed the materials. It was, according to Franklin, this action and Stolz’s avowal to remove any fence Franklin might thereafter construct that caused appellees to initiate this action.
At the close of appellees’ case, appellants demurred to the evidence and requested that the petition be dismissed upon the specific ground that the appellees had failed to establish possession of the property requisite to the maintenance of an action to quiet title, that appellees had an adequate remedy at law in ejectment, and that the equitable clean-up doctrine did not include all the damages requested by appellees.
The chancellor sustained the demurrer as to damages for the cutting and removal of hay from the land but otherwise overruled it. According to the chancellor, that portion of the case relating to damages was “purely and simply an action for damages and for trespass and for alleged conversion.” Considering the removal of the fence by Stolz “incidental to the physical marking of the boundary line and the demarcation on the part of the plaintiffs and associated with the boundary line question,” he held these elements of damages to come within the court’s jurisdiction under the clean-up doctrine.
The appellants thereafter presented their evidence and the chancellor entered a decree quieting title in appellees, restraining appellants from interfering with appellees’ use of the land, and awarding appellees damages in the amount of S84.25 for the removal and conversion of the fencing materials.
Appellants list five points for reversal, but three of them involve the same fundamental question, i.e., the jurisdiction of the chancery court to grant relief to appellants. That jurisdiction was raised only by a demurrer to the evidence when appellees (the plaintiffs) rested their case. The chancellor held that the objection to jurisdiction had been waived by failure to raise it by answer, demurrer or timely motion to transfer. The basis of appellants’ attack on equity jurisdiction was the fact that appellees were not in actual possession of the disputed tract, although it is clear that they did have the requisite possession of all of the tract they purchased except for the eight acres east of Union Star Road.
Appellees’ action was brought pursuant to Ark. Stat. Ann. § 34-1901 (Repl. 1962), which provides:
Any person claiming to own land that is wild or improved or land that is in the actual possession of himself, or those claiming under him, may have his title to such land confirmed and quieted by proceeding in the manner hereinafter provided.
Appellees pleaded actual possession in their complaint and appellants joined issue on this fact by their general denial, but never affirmatively pleaded adverse possession or offered any motion to transfer the cause to a court of law. Appellees’ evidence that they were in actual possession of the land west of the road gave them constructive possession of the entire tract included in the description in the warranty deed. Carter v. Stewart, 149 Ark. 189, 231 S.W. 887. Furthermore, appellees offered some evidence of actual possession of the eight acres to the east of the road, i.e., the construction of the fence on the eastern boundary, and, throughout the trial, timely objected to all offers of proof of adverse possession by appellants.
In alleging error on the chancellor’s part for his overruling their demurrer, appellants argue that “equity jurisdiction to quiet title independent of statute can only be invoked by a plaintiff in possession holding the legal title,” citing Gibbs v. Bates, 150 Ark. 344, 234 S.W. 175, and Lowe v. Cox, 210 Ark. 169, 194 S.W. 2d 892. In Gibbs, the chancellor found for the defendant and dismissed the complaint for want of equity jurisdiction where the defendant had answered denying possession by the plaintiff and averring possession in herself. This appellants here failed to do. Contrary to their explanation for this failure, appellants did not risk waiving an objection to the jurisdiction of the court or invoking the equity jurisdiction of the court themselves in pleading adverse possession. This is exactly what was done successfully by the defendant in Gibbs, although it is true that where the defendant in a quiet title action files an answer setting up title in himself by adverse possession and requests affirmative relief, he thereby waives his objection to the jurisdiction of the court and cannot complain if it is exercised against him. See Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244.
But equity jurisdiction of an action to quiet title is not to be tested solely upon the plaintiff’s possession. Rather, it depends to some extent upon the ability of a court of law, under the circumstances of the case to give complete relief. Covington, Bills to Remove Cloud on Title and Quieting Title in Arkansas, 6 Ark. Law Rev. 83, 93, 98. For instance, where neither party is in possession or where jurisdiction is invoked to prevent a continuing trespass, equity may act. See Shirk v. Williamson, 50 Ark. 562, 9 S.W. 307; Mooney v. Cooledge, 30 Ark. 640.
Appellees did seek relief by injunction against a threatened repeated trespass. The complaint probably did not state grounds for equitable relief because the alleged actual trespass was a simple trespass which did not inflict irreparable injury and the repetition was only threatened. See Sanders v. Boone, 154 Ark. 237, 242 S.W. 66, 32 ALR 461. But jurisdiction on this basis was not challenged by the general denial filed, by demurrer to the pleading or by motion to transfer to law. Yet, if appellee had succeeded in showing continuing trespass or irreparable injury, the jurisdiction of equity to quiet title would have been complete.
As pointed out in Lowe v. Cox, supra, the reason equity does not have jurisdiction where the plaintiff’s title is a purely legal one and someone else is in possession is that the remedy at law is plain, adequate and complete, and an action in ejectment cannot be maintained in equity in the guise of a bill in chancery. When such a suit is improperly brought in equity, it should not, on that account be dismissed, as appellants here sought to have done by demurrer to the evidence, but should be transferred to the law court; and if no motion is made to transfer the cause, the objection is waived. Cribbs v. Walker, supra. See also Wade v. Goza, 78 Ark. 7, 96 S.W. 388. The applicability of this principle to an action of ejectment has been long established. Catchings v. Harcrow, 49 Ark. 20, 3 S.W. 884. Appellants made no motion to transfer here so they waived any objection to the jurisdiction of the chancery court.
Appellants properly assert that they could not move to transfer the case to law solely on the pleadings because of the allegation in the complaint that appellees were in possession. Eades v. Joslin, 219 Ark. 688, 244 S.W. 2d 623. Furthermore, the jurisdiction of the chancery court on the ground that the plaintiff has an adequate remedy at law could not have been challenged by demurrer or general denial. Reid v. Karoley, 232 Ark. 261, 337 S.W. 2d 648; Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W. 2d 466. The only proper remedy was a motion to transfer to law. Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278.
Appellant was not in anywise prevented from reserving the question of jurisdiction in his answer or of moving to transfer before the trial commenced in spite of the allegations of the complaint. Even though the grounds for transfer did not adequately appear upon the face of the pleadings in this case, appellant could have presented evidence on a motion to transfer to show that the issues were purely legal ones. Haggart v. Ranney, 73 Ark. 344, 84 S.W. 703.
In the absence of such a motion, the chancery court may, in its discretion, transfer the case on its own motion or proceed to trial on the merits. Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S.W. 289, Catching v. Harcrow, supra. Where a defendant has answered and not reserved any objection to the jurisdiction of the court on the ground that there is an adequate remedy at law, he cannot insist on it at the hearing unless the court is wholly incompetent to grant the relief sought. Reid v. Karoley, supra; Whitten Developments, Inc. v. Agee, supra.
Appellants have urged that their demurrer to the evidence should have been considered as a motion to transfer, even though they did not request that this be done. The chancellor was not required to do so because the motion was not timely. When a party goes to trial without seeking transfer to the proper forum, it is within the trial court’s discretion whether the motion be entertained and refusal to transfer, even before any evidence on the merits has been heard, is not error. New York Life Ins. Co. v. McGee, 183 Ark. 141, 35 S.W. 2d 92; Phelps & Jones v. Jackson, 27 Ark. 585. See also, Arkansas Const. Co. v. Pidgeon-Thomas Iron Co., 172 Ark. 721, 291 S.W. 57; Hemphill v. Lewis, 174 Ark. 224, 294 S.W. 1010.
Of course, the chancery court is not, as we have demonstrated, wholly incompetent to grant the relief appellees sought. See Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, 84 S.W. 1044. An ejectment suit may be tried in equity if an objection to its jurisdiction is not timely made. Ogden v. Ogden, 60 Ark. 70, 28 S.W. 796; Flanagan v. Ray, 149 Ark. 411, 232 S.W. 600; Catchings v. Harcrow, supra.
The practice of withholding an objection to the jurisdiction of equity on the ground that there is an adequate remedy at law until the hearing of the case was soundly condemned in Cockrell v. Warner, 14 Ark. 345, where it was said that a party who had pleaded on the merits, without reserving the objection, cannot insist on it unless the equity court is wholly incompetent to grant the relief sought.
We find no error or abuse of discretion in the court’s overruling appellants’ demurrer to the evidence or in trying the case on its merits.
Appellants also complain about the court’s refusal at the conclusion of the trial to grant their motion that the pleadings be amended to conform to the proof on the question of appellants’ adverse possession for more than seven years. They say that the court should not only have done this but, having done so, should have confirmed title in them on the basis of their adverse possession. They also contend that their general denial raised the issue because appellees alleged that appellants had not been in open, notorious, hostile, adverse or continuous possession of the tract in dispute during any sustained period.
Appellants rely upon Ark. Stat. Ann. § 27-1155 (Repl. 1962), but this section is not the only one bearing upon amendment of the pleadings to conform to the proof, which is covered by Ark. Stat. Ann. § 27-1160 (Repl. 1962). Of course, adverse possession for seven years is an affirmative defense which must be pleaded by answer. Sanders v. Flenniken, 172 Ark. 454, 289 S.W. 485. It may be the basis for affirmative relief. Worthen v. Rushing, 228 Ark. 445, 307 S.W. 2d 890. But it should have been asserted by counterclaim before appellants could have their title quieted on that ground. See Mason v. Gates, 90 Ark. 241, 119 S.W. 70. A general denial could not possibly raise either issue, for it only serves to deny each separate allegation of the complaint. Affirmative defenses and counterclaims must have been specifically stated in addition to the general denial. Ark. Stat. Ann. § 27- 1121 (Repl. 1962). It was not error to exclude evidence proffered on the issue in the absence of a pleading raising it. Rucker v. Martin, Phillips & Co., 94 Ark. 365, 126 S.W. 1062.
Allowing an amendment to conform to the proof, where objection has been made to the evidence which would form the basis of the amendment (as was done here from the inception of the trial) is a matter lying within the sound judicial discretion of the trial court and its action will be sustained on appeal unless there has been a manifest abuse of that discretion. Rucker v. Martin, Phillips & Co., supra; Cole v. Branch & O’Neal, 171 Ark. 611, 285 S.W. 353. See also, Hogue v. Jennings, 252 Ark. 1009, 481 S.W. 2d 752. It has been held that it is not an abuse of discretion to deny such a motion which would inject into the case an issue not raised by the pleadings when it is made after the case has been completely developed, because the adverse party then is not prepared to meet the new allegation. Old American Ins. Co. v. Deloney, 178 Ark. 1194, 13 S.W. 2d 825; Butler v. Butler, 176 Ark. 126, 2 S.W. 2d 63; Cole v. Branch & O’Neal, supra; Mooney v. Tyler, 68 Ark. 314, 57 S.W. 1105; Kempner v. Dooley, 60 Ark. 526, 31 S.W. 145.
We are certainly unable to say that there was an abuse of discretion in this case where appellees consistently objected to the evidence relied on for amendment. Appellants were admittedly avoiding pleading the issue for fear that to do so might sustain equity jurisdiction and, in stating their motion to amend, concluded with the statement that they also wished to preserve the record that there was a lack of equity jurisdiction.
On cross-appeal, appellees contend that the court should have allowed all damages they sought, including punitive damages. Assuming that the evidence would have supported an award of punitive damages, appellees invoked equity jurisdiction. Punitive damages are in the nature of a penalty. See Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W. 2d 96. Equity will not ordinarily enforce penalties. Hendrix v. Black, 132 Ark. 473, 201 S.W. 283, LRA 1918 D 217; Cooley v. Lovewell, 95 Ark. 567, 130 S.W. 574. It has been held that one who appeals to a court of equity for relief waives the award of punitive damages as a matter of right. Coca-Cola Co. v. DixiCola Laboratories, 155 F. 2d 59 (4 Cir., 1946); Busby v. Mitchell, 29 S.C. 447, 7 S.E. 618 (1888); United States v. Bernard, 202 F. 728 (9 Cir., 1913); Wilborn v. Balfour, 218 Miss. 791, 67 S. 2d 857 (1953); Superior Construction Co. v. Elmo, 204 Md. 1, 102 A. 2d 739, 104 A. 2d 581, 48 ALR 2d 932 (1954). Certainly, one who elects to proceed in equity where he had an adequate remedy at law (as appellees did) must be held to have waived punitive damages.
We find no error in the chancellor’s sustaining appellants’ demurrer to the evidence as to damages for their having cut hay as a matter of trespass and conversion (common law torts) and not incidental to appellees’ title or right to possession. See Spitzer v. Barnhill, 237 Ark. 525, 374 S.W. 2d 811.
The decree is affirmed on appeal and cross-appeal.
Byrd, J., dissents.
It is significant that the record showed that the defendant Bates had been in possession of the land in question for more than 15 years claiming it adversely to all persons. | [
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PER CURIAM
The appellant, Kenneth Snelling, was identified by police Officer Sparks as the one who sold and delivered to him controlled substance in violation of Act 590 of 1971 (Uniform Controlled Substance Act).
The appellant’s brother Garry, testified that one Steve Welton had the drugs in his apartment; that he and the appellant took Officer Sparks to Steve’s apartment; that Steve was “barbed out” and at Steve’s request, the appellant got the drugs for Sparks and delivered the drugs to him. He said he saw the appellant hand the money to Steve.
The appellant testified that the transaction was actually between Officer Sparks and Steve and that fifty cents per capsule was agreed upon through price negotiation for large quantities. He said that Steve was pretty high on the drug and that Steve asked him to get the drugs and give them to Sparks. He said he did get the drugs and give them to Officer Sparks and that he took $12.50 for the drugs and gave it to Steve.
The appellant was represented by the Public Defender at the trial and was sentenced to three years in the penitentiary.
On appeal to this court the Public Defender has made a motion pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) that the appeal to this court has no merit. The Attorney General has submitted a brief and agrees with the Public Defender. We agree with both of them and affirm the conviction.
The judgment is affirmed. | [
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John A. Fogleman, Justice.
This appeal comes from a retrial of appellant Upton on a charge of first degree murder of Woodrow DeFee alleged to have been committed in the perpetration of a robbery, after our reversal of his conviction in Upton v. State, 254 Ark. 664, 497 S.W. 2d 696. The points for reversal here are:
I. The Trial Court erred in refusing to grant defendant’s motion to quash and dismiss relative to the appointment of a special prosecutor.
II. The Trial Court erred in refusing to grant defendant’s motion to suppress evidence regarding a confession allegedly made by defendant.
III. The evidence was not sufficient to sustain a judgment of murder committed while in the act of or in the attempt to perpetrate robbery.
The second point was asserted on the previous appeal and we held adversely to the appellant. Unless the evidence is materially different from that previously before us, the law of the case governs. Mode v. State, 234 Ark. 46, 350 S.W. 2d 675. There is very little difference in the evidence on behalf of the state. We find there is no reversible error. We will treat these points separately.
I
Appellant, as one ground for a change of venue, sought a transfer of the case to a county in which James J. Calloway was not a deputy prosecuting attorney. He asserted that his right to a fair and impartial trial was jeopardized by reason of the fact that Calloway, who had previously been one of the attorneys appointed to represent him in the defense of this charge, had been appointed Deputy Prosecuting Attorney in and for Union county. The motion for change of venue was granted, without any indication that it was based only on this ground. Appellant had also filed a motion to quash and dismiss the information filed against him on the same ground. He asked, in the alternative, that the prosecuting attorney and his staff be disqualified and that the court appoint a special prosecutor and enjoin him from discussing the case with- the prosecuting attorney or members of his staff and from using any evidence except such as might be on public record or was used in the first trial. The motion was denied upon the trial court’s finding that Calloway had respected the confidential relationship with his former client. The court, however, stated that if at any time prior to trial it was shown Calloway had violated or appeared to have violated this confidentiality by revealing any information received from appellant, the court would consider a motion to recuse the prosecuting attorney and his staff or to permit appellant to renew his motion to quash. The court also enjoined Calloway from discussing the case with the prosecuting attorney, his staff, appellant or appellant’s attorneys and from appearing at any subsequent hearings in the case or at the trial or participating in the cause, either as an advocate or spectator. The circuit judge warned that any appearance by Calloway in the courtroom at any time this case was under consideration would constitute a violation of the court’s order and any violation would immediately result in the prosecuting attorney and his staff being recused and a special prosecutor appointed.
The record discloses that Calloway was appointed to assist in Upton’s defense on April 4, 1972, and had conferred with Upton about the charges and his defenses on numerous occasions and had participated in the former trial and appeal. Calloway testified that his principal area of activity was in legal research and briefing and that Denver Thornton was leading counsel throughout the trial and appeal. His appointment as deputy prosecuting attorney was made on March 5, 1973, after he had completed his research in the Upton appeal but before he had dictated his brief. He stated that he had not subsequently had any contact with Upton, had never reviewed the state’s file in the case against Upton, except when it was made available to him as defense counsel, had not related any confidential information received from Upton to any of the prosecuting attorney’s staff, and had not done anything or become involved in any way in the case against Upton. He did say that after the reversal of Upton’s first conviction he had received a note from Upton and had gone to the jail to talk to Upton, at which time he gave Upton to understand that the representation was terminated. Calloway stated that he had done everything within his power to stay away from the case.
Calloway related that his primary duties as deputy prosecuting attorney were to attend municipal court, but said that he had made some felony court appearances and had handled a great deal of office traffic and some special assignments. There is no evidence contrary to that of Calloway and no indication that Calloway violated the confidence of appellant or participated in the case on behalf of the state in any way, or that appellant was prejudiced by anything Calloway had said or done. There is not the slightest indication that Calloway violated the trial court’s injunction in any way.
Appellant’s whole argument is based upon the potential for prejudicial violation of the confidential relationship. In support of his argument appellant relies upon numerous authorities from sister states, none of which is in point. If Calloway had appeared in the case at any time on behalf of the state in any capacity or prepared, presented or argued charges against appellant or instructions to be given the jury, or had communicated with the prosecuting attorney or any member of his staff about the case or had been a partner of the defense counsel serving at the second trial, we would have an entirely different situation. It appears from this record that Calloway scrupulously avoided any possibility of violation of any confidence and that the circuit judge was just as scrupulous in taking steps to avoid even the possibility of impairment of appellant’s right to a fair trial insofar as Calloway’s previous representation of him was concerned. To say the least, there was no abuse of the trial court’s discretion under these circumstances.
II
The alleged confession attacked by appellant is the same we held to be voluntary upon the record before us on the prior appeal. The trial court, after another Denno hearing before the second trial, also held the statement was voluntary and it was admissible both on that ground and on the law of the case. Appellant has not pointed out to us any significant difference in the testimony at the two Denno hearings. The impact of the law of the case is as great on questions of admissibility of evidence and voluntariness of statements by an accused as on any other question. See Fuller v. State, 246 Ark. 704, 439 S.W. 2d 801; Mode v. State, 234 Ark. 46, 350 S.W. 2d 675.
Appellant’s argument on this point is based entirely upon the fact that there was a two-day interval between the warnings as to his constitutional rights and the statement made by him to the prosecuting attorney. He says that the statement should have been held inadmissible because off the failure of the prosecuting attorney and the officers accompanying him to Upton’s jail cell on the occasion the sta in ,pent was made to advise him of his constitutional rights. Even if this is an objection to admissibility not previously roads, the law of the case, as the rule is applied by this court, ppoh.WJy would govern on the question of admissibility. See St. Louis Southwestern Railway Co. v. Jackson, 246 Ark. 268, 423 S.W. 2d 41; Turner v. State, 251 Ark. 499, 473 S.W. 2d 904. Still, wo find no merit in appellant’s argument on this appeal.
The statement was made at an interview requested by appellant. The statement did not result from any iníaioga tion. it was spontaneous. Upton started giving lilis version oí the case as soon as the prosecuting attorney and the accompanying officers entered the cell. We have never attempts 1 to set a fixed limit on the interval of time which must elapse between advice to an accused of his constitutional rights and an incriminating statement before a new warning is essential to admissibility of the statement. Probably we never will, because we must view the totality of the circumstances in our independent review of the record to determine whether such a statement is voluntarily made. See Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1975). We have held that a three-month interval is too long. Scott v. State, 251 Ark. 918, 475 S.W. 2d 699 On the other hand, we held that a three-hour delay between warning and confession was not so long as to require repetition of a warning where other evidence that the confession was voluntary preponderated. Summerville v. State, 253 Ark. 16, 484 S.W. 2d 85. In a factual situation very analogous to this, we found the evidence that a statement was volunta? / io be overwhelming in spite of the fact that-at least three or fevr days intervened between the accused’s being informed of his constitutional rights and his relating his version of a killing to officers he asked to come to the jail where he was incarcerated. O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618. To say the very least, we cannot say that when we view the totality of the circumstances the trial judge’s finding in thi:: rase was clearly against the preponderance of the evident. Degler v. State, supra.
G'“ the prior appeal we found no merit in any of ; eat’s arguments for reversal other than the one upon whbG -ye reversed his conviction.. While he did not specifically : •'ue hi that appeal that the evidence was insufficient to r. . hi a verdict finding him guilty of committing a murder G the ; erpeiration of a robbery, he did raise a point closely ¿ -Tied to his present argument. The point he did assert was thru ¡.he court erred in failing to instruct the jury that he Coirnot be convicted of murder in the perpetration of a et/ccr/ if he did not perpetrate, or attempt to perpetrate, a srTbwy on the deceased or if the intention to rob the deceas- . ,;i .': c formed subsequent to the infliction of the mortal no ivach Wow he argues that the evidence fails to show that he y npctrated or attempted to perpetrate a robbery. In so arguTy appellant says the evidence that the victim, Woodrow Tehee, was robbed is purely circumstantial and that the preponderance is to the contrary. Of course, we are not concerned with the preponderance of the evidence. Basically, it is sufficient 'f it does more than give rise to a suspicion that the victim was robbed and does not leave the jury to speculation and co dec.ure only in determining whether other reasonable Lypwhisc'; are excluded. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458; Ledford v. State, 234 Ark. 226, 351 S.W. 2d 425. See also Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695; Taylor v. State, 178 Ark. 1200, 10 S.W. 2d 853.
True enough, his confession, which was admitted, left n&Ting to speculation. As related by the Chief Criminal Teputy Sheriff of Union county, Upton said he picked DeFee up just out of Strong en route to El Dorado and this “dude” hud a check stub he was flashing, and was bragging about how much money he had made, so Upton made up his mind drisit he would rob DeFee, but was talked out of it by his femak companion. According to this officer, Upton also said ihai2 after stopping in El Dorado, when the “dude” asked to he ¿akem back to some point they had passed, Upton stuck a ¿un In his ribs, and later pulled off the road, made DeFee give k:j his billfold and told him to get out of the car. The officer she said that Upton stated that after having shot DeFee twice, he took $20 out of the billfold after which he threw it away.
Of course, it was necessary that the state show by other evidence that the particular crime with which Upton was charged had been committed. Ark. Stat. Ann. § 43-2115 (Repl. 1964). In a very similar case, we held that the fact that the victim was missing for five days, that his body was found far from the route he normally would have followed in returning home and that his purse had been taken would have constituted sufficient evidence that he had been robbed and had not died from natural causes. Moore v. State, 227 Ark. 544, 299 S.W. 2d 838. Appellant’s attack is, of course, directed toward the evidence of robbery and not the cause of DeFee’s death.
Alton Vestal saw DeFee about 4:00 a.m. on the day of the homicide. He saw a check for about $400 in DeFee’s possession. Vestal cashed a smaller check, for an amount less than $50, deducting $5.50 DeFee owed Vestal and giving DeFee between $35 and $40. Opal Lemmons sold DeFee a half pint of whiskey on that morning. He paid for it with two one dollar bills which he took from his shirt pocket and showed her his payroll check for more than $400, which he removed from his billfold. Marie Jerry testified that DeFee was in her place of business from 9:00 or 10:00 a.m. until noon on that day when his wife came and took him home. He paid cash for beer he bought. She remembered that he had a check in his possession and that DeFee returned about 2:00 or 3:00 p.m. and his attire was different from what he had worn in the morning.
Francine Chadwick also saw DeFee at this place during the morning. She said that DeFee purchased one can of beer while there, took out his billfold and handed Marie Jerry a check and a piece of currency, the denomination of which she did not know, but she saw a $20 bill which remained in his billfold.
Shirley DeFee said she had talked to her husband about his paycheck when they got home, and he gave it to her. She tried to get his billfold from him, but he refused to give it to her. She thought if she could get it he would stay at home. She related that she unsuccessfully tried to get hold of it while it was in his pants pocket and that they had a tug of war which she lost. She testified that he went to sleep wearing his work clothes and she left without any further effort to get the billfold, knowing that he was intoxicated and had been without sleep for 36 hours. She said that, thinking her purpose had been accomplished, she took his check, cashed it, paid some bills, returned home and, finding her husband still asleep, went to her mother’s. She stated that when she returned, he had changed clothing and left.
Later Hazel Hollis saw DeFee at Jerry’s Drive-Inn where he bought beer and paid for it with change. She did not see a billfold.
There was testimony that there was no billfold or other means of identifying DeFee found on his body but that there were three one dollar bills, nine quarters, four dimes and five pennies found. The body was found at a place off Highway 82 about five miles west of El Dorado. The billfold was never found, although the officers searched for it.
Appellant argues that the evidence pertaining to intention to rob DeFee is insufficient, because no one saw DeFee with a billfold after he left home, and it is probable that Mrs. DeFee took the billfold after he went to sleep and her statement that she did not was unlikely, so that it should be inferred that DeFee had less than $30 in his possession when he was last seen, that it would have been a perfectly simple matter for one intent upon robbery to reach into DeFee’s pockets after he was on the ground on his back, as he was found, and take the $5.70 found after the body was discovered.
These arguments were appropriate if addressed to the jury, and they undoubtedly were. It is true that the evidence pertaining to perpetration of a robbery, which was independent of Upton’s confession, was purely circumstantial. Since Mrs. DeFee’s testimony is not inherently improbable so that it must be rejected as a matter of law, and since her credibility and the weight to be given her testimony was for the jury to decide, it had the right to believe her. Tyler v. State, 168 Ark. 1168, 271 S.W. 451; Butler v. State, 192 Ark. 802, 95 S.W. 2d 636; Melton v. State, 165 Ark. 448, 264 S.W. 965; Brown v. State, 176 Ark. 1203, 4 S.W. 2d 947. If her testimony is true, it is highly unlikely that DeFee, having surrendered his paycheck, but having won his battle to keep his billfold, would walk away from home and leave it. Of course, the amount of money taken is of no concern, if any was taken. Radcliff v. State, 249 Ark. 1, 457 S.W. 2d 847. The failure of DeFee’s assailant to search each of his pockets after he had been shot twice was only a circumstance for the jury to weigh.
After all, the jury might draw any reasonable inference from circumstantial evidence to the same extent it could from direct evidence. Casteel v. State, 202 Ark. 663, 152 S.W. 2d 554; Moran v. State, 179 Ark. 3, 13 S.W. 2d 828. We think it was reasonable for the jury to have drawn the inference that DeFee was robbed, when full credit is given to Mrs. DeFee’s testimony. Certainly in the light of all the testimony independent of the confession, the evidence that he was robbed rises far above mere suspcion so that the jury, in arriving at its conclusion, did not have to resort only to speculation and conjecture.
When circumstantial evidence rises, above suspicion and is properly connected, and when, viewing that evidence in the light most favorable to the state, the jury is not left to speculation and conjecture alone in arriving at its conlusions, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. Ledford v. State, 234 Ark. 226, 351 S.W. 2d 425; O'Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976; Caradine v. State, 189 Ark. 771, 75 S.W. 2d 671. See also Walker v. State, 174 Ark. 1180, 298 S.W. 20; 30 Am. Jur. 2d 295, Evidence § 1125. It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. Bartlett v. State, 140 Ark. 553, 216 S.W. 33; Bost v. State, 140 Ark. 254, 215 S.W. 615. See also, Walker v. State, supra. The jury certainly should test the reasonableness of any other hypothesis.
It should be noted that Upton and his wife, who was his female companion at the time of their encounter with DeFee, both testified. Both denied that there was any robbery or attempt to rob. She said that the shooting was precipitated by DeFee’s attempt to rape her. She said that while she and DeFee were seated in the front seat of Upton’s car with Upton driving, DeFee reached into the back seat of the car, got a shotgun of Upton’s, laid it across her lap, and holding it on Upton, commanded that the vehicle be stopped. Then she said, while holding the gun on Upton, DeFee threw her on the ground, knelt over her and tried to remove her clothes. According to her, DeFee and Upton became involved in a struggle over the shotgun, resulting in its going off twice. She attributed an entirely different statement incriminating both herself and Upton which failed to refer to any advances by DeFee toward her, to the fact that she had been drinking and taking pills. She said the officers had made up the statement. She admitted that she had then made the statement that Upton took DeFee’s billfold, but that it was untrue.
Upton testified that he did not put DeFee out of his car when the latter first became familiar with Mrs. Upton, because she asked him not to. Yet, he said that after they later stopped in El Dorado to check the transmission fluid in his car, DeFee was permitted to continue on the trip with them and that they had only gone two blocks when DeFee put a shotgun in his stomach and ordered him to turn up a dirt road and stop. He likewise testified that the shotgun went off during a struggle between the two men after DeFee had ordered Mrs. Upton to get on the ground. He denied robbing DeFee and said he did not see a billfold. He attributed his confession to his desire to protect his wife and the prosecuting attorney’s alleged statement that she would burn in the electric chair.
We think the circumstantial evidence that DeFee was killed in the perpetration of a robbery is sufficiently connected to constitute substantial evidence to support the verdict when viewed in the light most favorable to the state.
The judgment is affirmed. | [
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Lyle Brown, Justice.
This appeal is from a judgment in the lower court based on the jury verdict for $6,000 in favor of appellee against appellant for a real estate commission claimed on a lease by the Bonanza Steak House as lessee from appellant as lessor of a restaurant site in Jacksonville. For reversal appellant contends the verdict is not sustained by the evidence, the court erred in refusing two instructions, and it was error to permit testimony about the fair value of appellant’s services.
We shall abstract the facts in the light most favorable to the verdict of the jury and the judgment of the trial court. Robert Vogel, a licensed real estate salesman for appellee, met in Jacksonville with Jim Manning, president of the corporation that operates Bonanza Steak Houses, for the pur pose of showing Manning property which he thought might be suitable for the location of a steak house. Mr. Manning decided that the site was not desirable. Robert Vogel then indicated that he knew of another location in the Wal-Mart Shopping Center about two blocks away. The two men proceeded to that site and spent a short time looking at the property and discussing its desirability as a potentially good location. Robert Vogel offered to find out who the owner was and get back in contact with Mr. Manning. In accordance with Mr. Manning’s request that he do so, Robert Vogel called Wal-Mart Store and found that the site was owned by appellant, Matthews Company. Mr. Vogel called Jim Matthews of the Matthews Company and asked him if the property was available for lease, and if he would receive a commission in the event that he provided the lessee for the location. Mr. Matthews stated that his company would pay a commission. Later that day, Robert Vogel and Mr. Matthews met at the site to discuss the proposed transaction. Mr. Vogel asked Mr. Matthews again if the Matthews Company would pay a commission. Mr. Matthews again indicated that they would. Mr. Matthews then inquired as to the name of the prospective lessee, and when he determined that it was Bonanza Steak House, he told Mr. Vogel that the Matthews Company had dealt with Bonanza Steak House in the past and that he would not pay appellee a commission for the transaction. Mr. Vogel then called Mr. Manning and told him that the owner of the property was the Matthews Company. Mr. Manning then indicated that he had dealt with the Matthews Company on several other leases and would be able to deal with it directly in perfecting the lease.
Subsequently a lease agreement was consummated between the Matthews Company and Bonanza Steak House for the Jacksonville location. A steak house was built at the site and went into operation. Appellant Matthews Company continued to refuse to pay a commission on the lease and appellee then asked the lessee of the property if he would be willing to pay a part of the commission. Lessee agreed to pay one-half of the proposed commission, one-half being figured at $6,000. That amount of money is being paid over a twenty-year period at $25.00 per month.
The amount asked for as against Matthews Company, being 16,000, was based on a quantum meruit basis since there is no contention that a definite fee was arrived at between the parties. There was testimony by competent real estate men that $12,000 would be a fair, full commission. The jury rendered a verdict in favor of appellee for the full amount of the commission claimed against appellant.
The first point for reversal is that the verdict is not sustained by the evidence. Without repeating the evidence just stated, and without recounting evidence favoring the point, we deem it sufficient to say that under the testimony offered by Vogel there was a meeting of the minds to the effect that Mr. Vogel would represent the Matthews Company in procuring a prospective lessee. It was only after Mr. Vogel revealed the name of his prospect that Mr. Matthews attempted to withdraw from the agreement. The jury was fully and fairly instructed on the prerequisites for recovery of the fee. It was told that the appellee had the burden of proving: (1) that Matthews Company agreed to let Mr. Vogel show the property for the purpose of leasing same; (2) that Matthews Company agreed to pay plaintiff for its services; (3) that plaintiff’s services were the procuring or efficient c:mse of the transaction; (4) that the lessee was ready, willing and able to perform, and that plaintiff performed all his duties honestly and in good faith.
The second point for reversal is that the court erred in refusing appellant’s requested instruction No. 3, which reads as follows:
As a defense to the commission claimed by plaintiff, defendant (appellant) contends that Robert Vogel was acting for Bonanza Steak House without the knowledge of James Matthews or Matthews Company. You are instructed that under the law a real estate broker or real estate salesman who attempts to act for both lessor and lessee with respect to a proposed lease without the knowledge of both parties for whom he attempts to act, forfeits all rights to any commission; and, in this case if you find from the evidence that Robert Vogel was attempting to so act for both the proposed lessee and the proposed lessor (defendant), then your verdict should be for defendant.
We find no error in refusing to give the instruction. Mr. Vogel started out to obtain a site for Bonanza; however, he never at anytime sought a commission from Bonanza until after Matthews refused to pay the commission and after the deal was consummated. When Matthews refused, to pay a commission it was at that time that Mr. Vogel tried to salvage a commission by asking Bonanza if it would pay him a commission. Bonanza voluntarily agreed to pay one-half the commission in order to maintain good relations. Mr. Vogel was not at anytime trying to collect a double commission; in fact he sued on the basis that one-half of his commission had been paid and he was seeking the other one-half from Matthews.
Appellant’s third point for reversal is that the court erred in refusing requested instruction No. 4, which reads as follows:
As a defense to the commission claimed by plaintiff, defendant contends that Matthews Company was first contacted about the proposed lease after Robert Vogel had been informed to the effect that the representative of Bonanza Steak House could deal direct with Matthews Company without any assistance from a real estate salesman; and, if you find from the evidence that Robert Vogel was told by a representative of Bonanza Steak House to the effect that no help was needed from a real estate salesman before he talked to James Matthews about the matter, then your verdict should be for defendant.
As we view the instruction it is binding; also it does not comport with this court’s per curiam order handed down when AMI (1) was published.
Appellant’s final point for reversal is that the court erred in permitting testimony about the value of appellee’s services. Over the objections of appellant the court permitted testimony of the accepted standard for reasonable compensation in the Little Rock area for brokerage services rendered. We find no merit in the point.
This court was faced with the same problem in Hodges v. Bayley, 102 Ark. 200, 143 S.W. 92 (1912). There we said: “We think there was some testimony proving that defendant listed his property for sale with the plaintiff and employed him to secure a purchaser for his stock of goods, and that plaintiff was the procuring cause of the sale thereof which defendant consummated with Thornton; and there was also evidence showing that the amount of the commission recovered was a reasonable and customary compensation for like service rendered in making such sales.”
Appellant argues that Mr. Vogel’s activities respecting the project were very scant, indicating he did not earn the commission claimed. It is true Mr. Vogel spent very little time with the venture, but the fact remains that he brought the parties together and the lease was consummated, whereupon he was entitled to his brokerage. Walthour v. Finley, 237 Ark. 106, 372 S.W. 2d 390 (1963).
The judgment is affirmed.
Byrd, J., not participating
Fogleman, J., concurs | [
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Carleton Harris, Chief Justice.
Appellant, Billy Nathan Northern, Jr., was charged by felony information with the crime of robbery with a firearm. On trial, after the jury had been instructed on the various degrees of the crime, it returned a verdict of guilty of the misdemeanor crime of petit larceny and assessed Northern’s punishment at one year in the county jail. From the judgment entered in accordance with the verdict, appellant brings this appeal. For reversal, four points are asserted, viz-,
“1.
THE COURT ERRED IN ADMITTING APPELLANT’S STATEMENT WHEN THE STATE FAILED TO SATISFACTORILY EXPLAIN THE ABSENCE OF RAYMOND GAIA.
II.
THE COURT ERRED IN ALLOWING THE PROSECUTING ATTORNEY TO QUESTION DEFENDANT ABOUT THE VARIOUS CRIMES FOR WHICH HE WAS CHARGED.
III.
THE COURT ERRED IN NOT ALLOWING DEFENDANT’S ATTORNEY TO VOIR DIRE THE JURY ON THE SECOND DAY OF THE TRIAL AFTER IT WAS LEARNED THAT LOCAL PAPERS HAD PRINTED ARTICLES WHICH WERE READ BY SOME OF THE JURORS WHICH STATED THAT DEFENDANT WAS CHARGED WITH FOUR FELONIES.
IV.
IN THE EVENT THAT THE LOWER COURT’S JUDGMENT IS AFFIRMED, APPELLANT SHOULD BE GIVEN CREDIT FOR THE TIME HE REMAINED IN JAIL AWAITING TRIAL.”
We proceed to.discuss these points in the order listed.
I.
Appellant specifically objected to the introduction of his confession wherein the robbery was admitted, but the objection was overruled. Appellant, a diabetic, contended he was not involved and that he only confessed after he was denied his insulin for a great period of time. According to appellant, after he was arrested by West Memphis police officers, he was taken to the police headquarters in West Memphis and questioned by Officers R. G. Martin and Raymond Gaia. During the in-chambers hearing on the voluntariness of the confession, Northern stated, inter alia, that he was denied the use of a telephone to call a lawyer, missed breakfast because of being fingerprinted, and was thereafter questioned relative to the robbery. He said that he asked Martin to obtain his insulin for him because he was getting sick, and needed something to eat, but the officer replied that he (appellant) had to “go to the lineup first”. He was then taken to Marion to the county jail for the lineup, after which he asked Detective Captain Gaia if he could have his insulin, but was advised that he could not until the investigation was over. Appellant was then taken back to the police station and the interrogation relative to the robbery was resumed. He said that he reached for a telephone to call a lawyer and also to call his father to obtain his insulin, but Gaia “slapped my hand down.” According to his testimony, he was taken back to his cell, was getting very sick, “puking”, and shaking; Gaia called him back and took him to his office; Gaia was the only person present at that time. Northern was again questioned, told that in order to get his insulin, obtain a lower bond, and make it easier on himself, he had best cooperate. He said he vomited in the bathroom, was sick at his stomach, dizzy, and completely exhausted. Appellant stated that he decided the only way he would get out was to write a statement as requested.
Northern said that he wrote on the paper as dictated by Officer Gaia, but that what he wrote was not true.
Donald Glover Sharp, who was being held in the jail at Marion on a charge of possession of marijuana and no driver’s license, testified that he was in the lineup with Northern and heard the latter ask Gaia if he could make a phone call because he needed his “shot” and that Gaia replied, “After the investigation.”
Sergeant Martin testified that appellant was questioned by himself and Captain Gaia at the same time and that, to his knowledge, Gaia never talked to Northern by himself. He stated that Northern did not try to use the phone and was not mistreated in any manner, nor promised any reward or leniency in return for a confession. The officer said that he learned Northern was a diabetic when the latter commenced writing his statement and at that time the prisoner stated, “Excuse me. I am a diabetic, and 1 am nervous.” Martin said that Gaia asked appellant if he wanted to call somebody and received the reply, “No, 1 can wait until 1 get to Marion.” The court held the confession to be voluntary and accordingly admissible. Officer Martin then reiterated this testimony before the jury, reciting that both he and Captain Gaia were present the entire time, and that Northern was never present with just Gaia. Gaia did not testify.
Counsel for appellant contended, and contends here, that in order to establish the voluntariness of the confession, it was essential for the state to either place Gaia on the witness stand, or give a satisfactory reason why he was not testifying. The court asked counsel if he (defense counsel) had subpoenaed Gaia, stating that defense counsel had the same right as the state, and if he wanted the testimony, he could have taken the deposition. Counsel contended that it was up to the state to produce the witness, and not the defendant. Appellant was correct. In Smith v. State, 254 Ark. 538, 494 S.W. 2d 489, we pointed out that under our case law, there is a presumption that an in-custody confession is involuntary and the burden is on the state to show the statement to have been voluntary, i.e., freely and understandably made without hope of reward or fear of punishment. See also Mitchell v. Bishop, Supt., 248 Ark. 427, 452 S.W. 2d 340. In Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 (1974), we stated that whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, the burden is on the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence. Accordingly, in the case before us, under the testimony of Northern, it was necessary that the state offer Gaia as a witness or give an adequate explanation for his not being present. We do not think this was done. Martin testified that Captain Gaia was no longer with the West Memphis Police Department, having resigned two or three months earlier. He said that Gaia was still in town two weeks after he resigned, and that he understood that Gaia was in Crystal Springs, Florida, but did not know exactly where Gaia could be located. The state’s attorney, at the time of defense counsel’s objection, stated that the state could bring witnesses to testify that efforts had been made to locate Gaia if the court deemed it necessary; further, that the state had an affidavit from Gaia’s wife to the effect that she didn’t know where he could be found, and had no means of locating him. From other remarks between counsel at the time, it is apparent that appellant’s counsel had already indicated to the state that Gaia’s testimony would be important.
While counsel for the state said that he could bring witnesses into court to testify to efforts made to locate Gaia, this was not done; nor was the affidavit from the wife filed with the court. In addition, the record reflects that no subpoena was issued for Gaia, although in another criminal case against another defendant, set for the next day, a subpoena had been issued for Gaia. Accordingly, as far as Gaia’s whereabouts arc concerned, the record only reflects that he might be located in Crystal Springs, Florida, and there is nothing in this record (except the statements of the state’s attorneys) to indicate whether the state had made an effort to locate this witness. Of course, the fact that Gaia had been subpoenaed in another case for the very next day but was not subpoenaed in the Northern case indicates that the state never had any intention of using Gaia in the case presently before us.
Under the holdings in the two Smith cases, the Crittenden County Circuit Court committed error, and this error will necessitate a reversal.
II.
The questions asked by the prosecution, to which the appellant objected, did not refer to any charge against Northern; rather, appellant was simply asked if he had robbed certain persons on particular dates. The answer in each instance was in the negative. No error was committed. See Moore v. State, 256 Ark. (April 8, 1974), 507 S.W. 2d 711, and cases cited therein.
III.
This point is not likely to arise on a re-trial and accordingly there is no need for discussion.
IV.
Since appellant’s conviction (s being reversed, this point becomes moot and requires no discussion.
Because of the error set out under Point I, the judgment is reversed and the cause remanded. | [
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Lyle Brown, Justice.
On August 1, 1974, the Arkansas Senate voted to “expel and/or disqualify” Senator Guy Hamilton Jones, Sr., from that body. Jones brought this suit against Lee Reaves, Secretary of the Senate, and various other state officials, to pro. libit those officials from acting on the assumption that the expulsion was valid. For example, Jones sought to compel the State Auditor to continue paying Jones’ salary, and sought to prohibit the governor from calling a special election to fill a vacancy. The trial court held void the attempted expulsion of Jones. The principal findings of the trial court were that the senate did not follow the procedures outlined in House Concurrent Resolution 14; that Jones had no notice of the session at which he was expelled; and that his right to due process was in other respects violated. We are of the unanimous opinion that the trial court was in error and that the expulsion of Jones must be sustained.
Jones, a legislative veteran, was elected to the Senate in November 1972. In December 1972, he was found guilty in the United States District Court for the Eastern District of Arkansas of filing fraudulent income tax returns and making and subscribing to false returns. In January 1973, before being sentenced, Jones was seated in the senate. On April 3, 1973, he was fined $5,000 and placed on probation for a period of three years. In May of that year the Arkansas At torney General issued an opinion that Jones had been convicted of an infamous crime under Ark. Const., art. 5, § 9 and was no longer qualified to serve as a senator.
On July 9, 1974, Jones was given notice that his qualifications to serve had been challenged as a result of the recited conviction, and that the senate would conduct a hearing. The senate adopted rules of procedure for the hearing and the same was conducted. The motion to expel failed of adoption. The senate thereupon recessed under the provisions of House Concurrent Resolution 14 to reconvene on August 1, 1974. More will be said later about that resolution but suffice it for the present to say that at the meeting held on August 1, a motion was made to expunge the record by which the expulsion motion of July 12 failed to carry. That motion carried. A motion was then made and carried by more than two-thirds vote that Senator Jones be expelled and/or excluded from the senate. This suit for mandamus and declaratory judgment followed.
The fundamental privileges and immunities possessed by the two houses of the legislature are imbedded in two provisions of our constitution. Our principal reason for rejection of Senator Jones’ contentions is founded on those provisions. Ark. Const., art. 5, § 11 provides:
Each house shall appoint its own officers, and shall be the sole judge of the qualifications, returns and elections of its own members.
In Evans v. Wheatley, 197 Ark. 997, 125 S.W. 2d 101 (1939), Evans appeared before the Arkansas Senate in 1937 and challenged the right of Walter Wheatley to serve in that body. The basis of the challenge was that Wheatley had previously been convicted of violating the State’s “bone dry” law and sentenced to one year in the penitentiary. The senate seated Wheatley. Then in 1938 Wheatley was again elected to the senate and the latter body again seated him. Appellant brought suit in the Pulaski Circuit Court to have Wheatley ousted and to restrain the auditor and treasurer from issuing and cashing warrants for Wheatley's services. We held that “qualifications” in art. 5, § 11, include “eligibility”, and that the court was without jurisdiction because the senate is the sole judge of the eligibility or qualifications of its members:
By the above provision, art. 5, § 11 of the Constitution, a clear mandate is given to each house of the General Assembly to be the sole judge of the qualifications of its members, and the courts of this state have no authority or jurisdiction to question the wisdom of their actions in seating or refusing to seat one elected to membership.
Then we have the case of Irby v. Barrett, 204 Ark. 682, 163 S.W. 2d 512 (1942). There the chairman and the secretary of the státe democratic committee refused to certify Irby as a candidate for senator, on the ground that he had been convicted of embezzlement. We held such action to be without authority; that notwithstanding Irby had been held by this court ineligible to hold the office of county judge, the senate would not be bound to follow that opinion as respects election to the senate. That is, of course, because the senate is the sole judge of the qualifications of its members.
The constitution, art. 5, § 12, provides, among other things, that each house has the power to determine its own rules of proceedings. In that connection we have two landmark cases, St. Louis & S.F.R. Co. v. Gill, 54 Ark. 101, 15 S.W. 18 (1891); Bradley Lumber Co. v. Cheney, 226 Ark. 857, 295, S.W. 2d 765 (1956).
In Gill it was alleged that certain legislation affecting railroads was not passed in accordance with the joint rules of the general assembly. We said: “The joint rules of the general assembly were creatures of its own, to be maintained and enforced, rescinded, suspended, or amended, as it might deem proper. Their observance was a matter entirely subject to legislative control and discretion, not subject to be reviewed by the courts.”
The decision in Bradley Lumber Co. reiterates the holding in Gill. Under the house rules, action in receding from an amendment was required by its own rules to be recorded in the journal. The action of the house on an amendment was not recorded and that raised the contention that the act was invalid. We said: “Subject to the restrictions imposed by the constitution each branch of the legislature is free to adopt any rules it thinks desirable. It follows, both as a matter of logic and as a matter of law, that each house is equally free to determine the extent to which it will adhere to its self-imposed regulations.”
We return to a discussion of HCR 14. Jones contends that under that resolution he was entitled to have notice and that the failure to give notice made the proceedings void. He further avers that the failure to give notice violated his constitutional right to procedural due process.
HCR 14 provided that both houses would recess at the close of business on Friday, July 12, 1974, and should reconvene on Thursday, August 1, 1974; that each house was authorized to convene from time to time as desired; that in the interim all bills passed would be checked for errors; that if errors were found the speaker of the house and the president of the senate would notify the members that the reconvening of the full membership would be necessary for the sole purpose of correcting errors in bills and consideration of vetoed bills; that unless such notice was given then five members of each house could reconvene on August 1 and adjourn sine die.
Appellee’s argument is without merit. Art. 5, § 12, and the decisions we have cited thereunder come into play. First, the rule adopted by the resolution was a matter of internal rule-making and could be changed at will. Secondly, the general assembly did not, either on April 12, or at any time thereafter until after the expulsion vote on August 1, adjourn sine die. The meeting on August 1 was clearly authorized, and on the basis of the constitutional rule-making independence it was the prerogative of the senate to act on such matters as it desired just so long as any action taken was not prohibited by the constitution.
We are not impressed by the argument of due process and res judicata. The latter is invariably tied into the civil processes of our courts and we are nowhere cited any authority for restricting the legislature in its power to amend, modify, or in fact obliterate its previous actions. As to the due process argument, the constitution, art. 2, § 8 says no man shall be deprived of life, liberty or property without due process of law. We hold that nothing in that wording supports appellant’s argument. We have many times held that the right to hold office is not a property right. McFarlin v. Kelly. 246 Ark. 1237; 442 S.W. 2d 183 (1969).
Jones insists that the proceedings of July 12 were a bar to any subsequent effort to reconsider petitioner’s qualifications, arguing that it constituted double jeopardy. He bases his argument on the provision of const., art. 5, § 12 which says a legislative member cannot be expelled twice for the same offense. The quick answer to the argument is that the vote of July 12 did not expel Jones. The vote on August 1 was the first expulsion.
Jones next contends that Governor Bumpers was absent from the State on August 1 and that Lieut. Gov. Bob Riley became acting governor and therefore could not constitutionally preside over the senate on that date. Mr. Riley was on August 1 at least de facto president of the senate; actions of a de facto officer are not open to question in a collateral proceeding. Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279 (1918). The perfect answer to the argument is found in Simon v. State, 86 Ark. 527, 111 S.W. 991 (1908). There the president of the senate continued to attest bills while performing duties as governor. We said he was de facto president of the senate and his actions were valid.
Jones relies on two United States Supreme Court decisions, Bond v. Floyd, 385 U.S. 116 (1966) and Powell v. McCormack, 395 U.S. 486 (1969). Bond met all requirements of a state legislator but the house of representatives refused to seat him on the ground that he could not conscientiously take the oath of allegiance. The court held that the action amounted to adding a standard which violated Bond’s First Amendment rights to freedom of speech. In Powell’s case the house voted to exclude Powell because he allegedly misappropriated public funds and abused the process of New York courts. The court said Powell met all the qualifications prescribed by Const., art. 1, § 5, and Congress was limited to considering the qualifications expressly prescribed.
We find no analogy between the case before us and the two cited cases. In fact the question foremost in our minds in a consideration of this case has been whether the senate exceeded its constitutional powers. We find no such abuse and therefore we are without authority to reverse the senate.
We agree with Jones that the trial court had jurisdiction because it was necessary to determine whether the senate was lawfully in session as prescribed by the organic law as expressed in the constitution.
The cause is reversed and remanded with directions that the trial court enter an order not inconsistent with our opinion. In view of the fact that a special election will be needed to afford representation to the 21st Senatorial District in the coming general assembly an immediate mandate shall issue.
Reversed and remanded. | [
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George Rose Smith, Justice.
This is an action by the appellants, two tenth-grade high school girls (suing by their next friends), for a writ of mandamus to compel the appellee school district to re-admit them to the Texarkana, Arkansas, high school. The circuit court, in sustaining the district’s motion for summary judgment, held that the board of directors of the district had the authority to permanently expel the two girls. Whether that ruling was legally correct is the only issue argued by the appellants.
The material facts are not in dispute. On the evening of March 21, 1973, some sort of verbal controversy took place at a dance attended by high school students. As an aftermath to that altercation the two appellants on the following day, during school hours, attacked a third girl, Kathy Walker, on the school grounds. The attack was deliberately planned in advance. The Walker girl was kicked, beaten, and stabbed twice in the head with a six-inch pair of scissors. Her injuries were serious but not fatal. The principal of the high school promptly suspended the appellants for the remainder of the school term.
The principal then recommended to the directors that the two assailants be expelled. After a public hearing, about which no constitutional question is raised, the board voted unanimously for permanent expulsion. At the hearing the district’s attorney advised the board that it would have the authority to reinstate the two girls later on if it saw fit to do so. The circuit court, in denying the requested writ of mandamus, noted that after their expulsion the girls had pleaded nolo contendere to charges of assault with intent to kill and had each received a five-year suspended sentence.
Counsel for the appellants, in insisting that school directors cannot expel a student, argues that the board’s only authority in the matter must be derived from Ark. Stat. Ann. § 80-1516 (Repl. 1960), which was part of the comprehensive 1931 school law:
The directors of any school district may suspend any person from school for immorality, refractory conduct, insubordination, infectious disease, habitual uncleanliness or other conduct that would tend to impair the discipline of the school, or harm the other pupils, but such suspension shall not extend beyond the current term. The board of directors may authorize the teacher to suspend any pupils, subject to appeal to the board.
We are unwilling to construe the board’s authority so narrowly. In the first place, the power of expulsion was legislatively recognized in Section 13 of Act 63 of 1969 (Ark. Stat. Ann. § 80-1656 [Supp. 1973]):
Nothing in this Act shall be construed to limit a local school district’s power to adopt reasonable rules, regulations, and policies, not inconsistent with the purposes of this Act, to insure continued orderly operation of schools, including adult education and area vocational-technical high schools, and such powers are deemed to include the right of expulsion for student participation in any activity which tends, in the opinion of the Board, to disrupt, obstruct or interfere with orderly education processes.
It is true that Act 63 was adopted by the legislature to implement Constitutional Amendment 53, which specifically confirmed the power of the General Assembly and of school districts to expend public funds for the education of persons over twenty-one or under six years of age. Nevertheless, we find it difficult to believe that the lawmakers meant to recognize the school board’s authority to expel a student after his twenty-first birthday but to deny that power immediately before that anniversary. We can discern no reasonable basis for such a distinction.
In the second place, the directors have implied powers as well as express ones. “But school directors are authorized, not only to exercise the powers that are expressly granted by statute, but also such powers as may be fairly implied therefrom and from the duties which are expressly imposed upon them. Such powers will be implied when the exercise thereof is clearly necessary to enable them to carry out and perform the duties legally imposed upon them.” A. H. Andrews Co. v. Delight Spec. Sch. Dist., 95 Ark. 26, 128 S.W. 361 (1910). Our school laws unquestionably impose upon school boards the duty of providing orderly educational institutions. Scant imagination is required to think of innumerable situations in which the power of expulsion might be the school board’s only effective means of protecting the student body from the disruptive, violent, or criminal actions of an incorrigibly intractable pupil.
The controlling principles are well stated by Professor Bolmeier in “The School in the Legal Structure,” § 16.17 (2d ed., 1973):
The legal principle is also firmly established that school authorities may expel or suspend from school any pupil who disobeys a reasonable rule or regulation. School officials are clothed with considerable discretionary authority in determining whether or not a rule has been violated, and, in the event they conclude that a violation has occurred, they also have discretionary authority in determining the nature of the penalty to be imposed — providing it is not arbitrary or unreasonable. When, however, parents challenge the action of school boards as being beyond the bounds of reasonableness, litigation may develop.
There are a number of cases concerning pupil suspension and expulsion. The terms “suspension" and “expulsion” are sometimes used interchangeably. There is, however, considerable difference in the legal meaning of the two terms. “Suspension" is generally an act of a professional member of the school staff, whereas “expulsion” is a prerogative of the school board. Suspension is usually for a short period of time, or until the pupil conforms to the rule or regulation involved, whereas expulsion is usually permanent or substantially so.
The courts look somewhat askance at acts of suspension, and particularly at expulsion, as methods for forcing pupils’ conformance to rules and regulations. Some incorrigible pupils violate school regulations for the very purpose of being removed from the school environment. It should be realized that when a pupil is denied school attendance he is deprived of education designed for his betterment. Of course when a pupil's misconduct or disobedience is of such a grave nature that his presence is disrupting to the school and detrimental to the morale of the student body, suspension, or even expulsion, is likely to be judicially condoned.
The courts have been reluctant to interfere with the authority of local school boards to handle local problems. Our position was well stated in Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3 (1962): “In this State a broad discretion is vested in the board of directors of each school district in the matter of directing the operation of the schools and a chancery court has no power to interfere with such boards in the exercise of that discretion unless there is a clear abuse of it and the burden is upon those charging such an abuse to prove it by clear and convincing evidence.” We cannot say that an abuse of discretion has been shown by the undisputed facts in the case at bar.
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LAVENSKI R. Smith, Justice.
James E. Kelly, III, M.D., appeals . child-support order of the Sebastian County Chancery Court requiring that he pay twenty-five percent of any conditional bonus he receives, in addition to his monthly base-support obligation. Kelly argues that the court’s order is contrary to the provisions of Arkansas Supreme Court Administrative Order 10, because it does not set and establish a sum certain dollar amount. We agree and reverse.
Facts
James Edward Kelly, III, and Michele Newhause Kelly were married on August 8, 1983, in Ontario, Canada. The Kellys lived in Canada for twelve years. While there, James attended medical school and completed his residency. During the course of their marriage, the Kellys had three children. The family moved to Louisville, Kentucky, in 1995 while James obtained additional training in his chosen specialty of plastic surgery By 1998, the Kellys had moved to Ft. Smith, believing the economic and environmental conditions there to be advantageous for their family. On March 16, 1998, Michele filed a complaint for separate maintenance in the Sebastian County Chancery Court, alleging general indignities. In August 1998, James accepted an offer to associate with Sparks Foundation. His promised compensation included a base salary of $522,000 and a bonus. The agreement outlined the calculation of the bonus as follows:
(ii) Bonus. Physician shall be entitled to Bonus Compensation in addition to the Base Compensation based on the following:
The bonus amount shall be fifty percent (50%) of collections above a bonus threshold amount which shall equal physician’s base salary plus Practice Site costs. Bonus compensation shall be pro-rated for any partial year. During the term of the Agreement Hospital and Physician will review the on-going practice site expenses as they relate to the calculation of the Bonus Percentage. Adjustments to the Bonus Percentage and Bonus Threshold will be made in accordance wit the actual practice site experience.
James began work for Sparks Foundation in the fall of 1998. On December 4, 1998, Michele amended her complaint to state a cause of action for absolute divorce. Following discovery, the court set the matter for hearing on August 6, 1999. When the matter was called, the parties announced that they had negotiated and executed a property-settlement agreement resolving all marital property issues. However, the parties agreed to submit to the court the issue of whether James should be ordered to pay an additional amount of child support based upon the bonus he could receive under his contract. James testified that he had not received a bonus, and was unsure when a bonus might be paid or how much it might be. He indicated that the uncertainty came from the nature of the calculation formula, which included the business costs associated with his practice. He believed those costs would include the startup costs for the practice, and that it would take an indefinite amount of time to build a practice. At the conclusion of the hearing, the chancellor granted Michele an absolute divorce and set child support in the amount of $6,000 per month consistent with the parties’ property-settlement agreement. The court also awarded additional child support in the amount of twenty-five percent of the net of any bonus that James receives. The chancellor entered the divorce decree on August 25, 1999. The chancellor also conducted an additional hearing on James’ motion for new trial on September 13, 1999. The court denied the motion.
Standard of Review
We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 340 Ark. 173, 8 S.W.3d 525. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a chancellor’s conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park Inc., 325 Ark. 332, 916 S.W.2d 95 (1996).
Administrative Order #10
At the time of a divorce, with respect to child support, the chancellor is obligated to make such orders as are reasonable based upon the circumstances of the parties and the nature of the case. Ark. Code Ann. § 9-12-312. In making its order, the court must make specific reference to the family-support chart. The family-support chart is more accurately identified as Section VII of Supreme Court Administrative Rule 10. First adopted in 1990 in response to federal law, Administrative Order Number 10 sets out the definition of income for child-support purposes, the manner of calculation of support, requires parties to execute an affidavit of financial means, and lists factors the court should consider when determining support at variance to the chart. Although the court must consider the chart, it does not have to use the chart amount if the circumstances of the parties indicate another amount would be appropriate. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); see also, Ark. Code Ann § 9-14-106 (1998).
At issue in the instant case, is SECTION III (b), which concerns calculation of support payments where the payor’s income exceeds the chart. It provides that in those cases the court should use specific percentages of the payor’s weekly or monthly income “to set and establish a sum certain dollar amount of support.” SECTION III (b) specifies twenty-five percent as the appropriate percentage for two dependents. In setting support for the children, the chancellor below used the twenty-five percent as the factor, and awarded Michele twenty-five percent of James’s bonus income in addition to $6,000 per month from his salary. It is undisputed that the bonus income is income for child-support purposes under the definition of income contained in Administrative Order Number 10. However, James challenges the court’s ability to presently order payments based upon indefinite, conditional income. Specifically, he contends that the court cannot “set and establish a sum certain dollar amount of support” where the receipt of the bonus is contingent upon the profitability of the clinic and the amount, if any, cannot presently be determined. We agree and reverse.
The trial court found SECTION III (b) to be somewhat ambiguous, in that it required an order of a sum certain on bonuses, which by their nature are typically uncertain as to amount until paid. We disagree. We do not consider the language of the section to be ambiguous. Calculating support from bonus income, like other forms of income, should be based upon a proper showing of past earnings and demonstrated future ability. For instance, with regard to self-employed payors, support is calculated based upon the previous year’s federal and state income-tax returns and the quarterly estimates for the current year. Also, the court shall consider the amount the payor is capable of earning, or a net worth approach based upon property, fife-style, etc. Administrative Order Number 10 SECTION III (c). Here, there is no history of bonus income, and the trial court acknowledged the uncertainty of whether James would even qualify for a bonus in the foreseeable future given the business-expense calculation that would be required. We therefore reverse and remand for entry of an order consistent with this opinion.
Reversed and remanded.
See In Re Administrative Order Number 10, 329 Ark. 668 (1997). | [
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PER CURIAM.
This matter involves a gag order issued by Juvenile Judge Stacey Zimmerman regarding photographs of the victim and the juvenile by the media in the attempted capital murder proceedings in juvenile court. The gag order does not affect the continued publication of photographs of both the victim and juvenile published prior to the gag order. The Arkansas Democrat-Gazette and other publications, as petitioners, have moved this court for the following relief:
•Petition for Writ of Mandamus ordering the judge to rescind the gag order.
•Petition for Temporary Relief from the gag order pending our decision on mandamus or, alternatively, for an accelerated proceeding.
•Motion to Expedite consideration of the mandamus petition and Petition for Temporary Relief.
•Two Motions to Supplement the Record with transcripts of two hearings on the matter.
We deny the Petition for Temporary Relief from the gag order but grant the alternative Petition for an Accelerated Proceeding. We grant the Motion for Expedited Consideration of the Petition for Writ of Mandamus and the Motions to Supplement the Record. Because we have expedited the Petition for Writ of Mandamus and accelerated this matter, a decision will be rendered during this term of court.
THORNTON, J., not participating. | [
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Conley Byrd, Justice.
At issue in this action by appellant Alexander Craig, Administrator of the Estate of Jeff Craig, deceased, against appellee State Farm Auto insurance Company, is whether the driver of an uninsured vehicle was responsible in any manner for the acts of his passenger in tossing a sack of cans into the path of a Volkswagen driven by Dianne Birdsong. Jeff Craig was a passenger in the Volkswagen. The trial court granted a directed verdict in favor of State Farm at the close of appellant’s evidence.
The record shows that Dianne Birdsong was driving a Volkswagen on Interstate 55 toward Memphis, Tennessee. While driving along she noticed a white Chevrolet truck with two men in it that was slowing down traffic. After the traffic would get by the truck it would speed up and pass the traffic arid then repeat the slowing down process. Dianne stayed behind the truck until it kept getting slower and slower. When she finally pulled into the left lane of traffic to pass the truck the driver of the truck looked at her as she got even with the truck and speeded up and got in front of the Volkswagen. The passenger in the truck turned around and looked at the Volkswagen. The truck passenger then held a sack of cans out the window on the passenger’s side of the truck and at the appropriate moment, gave it a toss so that the cans rolled under the Volkswagen with the sack hitting the windshield. As a result of the tossing of the sack of cans, the Volkswagen went off the road causing the death of Jeff Craig. The white Chevrolet truck did not stop but left the scene of the accident.
State Farm points out that their uninsured motorist policy only covers the “owner or operator” of the uninsured vehicle. To support the action of the trial court it then argues that unless one is to engage in a guessing game, there is simp ly no evidence that the driver participated in any manner in throwing the sack from the truck or indeed knew that the passenger was throwing the sack from the truck.
Had not the two men in the truck been slowing down, jamming up traffic to the rear and then accelerating the truck rapidly to pass everyone only to repeat the slowing and jamming of traffic, there might be some merit to State Farm’s contention. But when we consider the previous conduct of the driver of the uninsured vehicle in slowing and jamming traffic together with his conduct in leaving the scene of the accident after the sack throwing incident, we find that there is substantial evidence to go to the jury on the issue of his participation in the hazardous traffic game that was being played. See Restatement of Torts § 877(b).
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John A. Fogleman, Justice.
This appeal involves questions pertaining to the trial of an action to recover for damage to the automobile of John and Linda Dye in a collision with the motor vehicle of Willis E. Self. The collision occurred in the city limits of Rogers at the intersection of U.S. Highway 71 and Oak Street. Although no pleadings are abstracted, it is clear from appellant’s statement of the case, adopted by appellees, that both parties alleged that the other driver was negligent and that his negligence was the proximate cause of the damage. Traffic at the intersection was controlled by traffic lights.
Appellant states the following points for reversal:
1. That there was no substantial evidence to support the verdict rendered by the trial court in this action.
2. That the trial court erred in admitting or considering the police report of the officer who investigated this accident.
3. That the trial court abused its discretion in limiting cross-examination of witnesses.
We find no merit in any of these points and affirm the judgment, which was rendered by the circuit judge sitting as a jury.
I
Appellant argues that the testimony of Linda Dye (the driver of the Dye automobile) shows that she did not even see the vehicle driven by Self on Highway 71 until the two vehicles collided, and that her testimony about the collision was not corroborated, because one witness offered for that purpose was a police officer who remembered nothing significant and the other was not credible. Appellant asserts that, since it is clear that Mrs. Dye was not keeping a proper lookout and was driving with an infant in her lap, she was negligent as a matter of law, and that the damages should have been reduced under the Comparative Negligence Statute (Ark. Stat. Ann. § 27-1764 [Repl. 1962]).
We think appellant mistakes both the scope of our review and the issue before the trial court. The question here is whether there was any substantial evidence to support the judgment. The issue before the trial court was whether one, or the other, or both, of the drivers were guilty of negligence which constituted the proximate cause of appellees’ damage.
It is not necessary that we consider any testimony other than that of Linda Dye on this point. On this critical issue she testified as follows:
She was driving the Chevrolet automobile owned by her and her husband in a westerly direction on Oak Street, en route to a babysitter’s home, where she would leave her three-year-old daughter and then go to her place of employment. At the intersection, she stopped at a stoplight. After she waited almost the full time the light remained red for Oak Street traffic, it turned green, she pulled into the intersection and her car was struck by Self’s vehicle, which she had not previously seen. She travelled 10 or 12 feet and had gotten her vehicle into the “inside lane” on Highway 71 before it was struck. Highway 71 is a four-lane highway. When the Self vehicle struck her, it was in the first lane, or the right hand lane on Self’s side of the highway. After the collision, Self asked her what had happened, who had run the red light, and who had hit whom. Self said that he was day dreaming and really did not know what had happened.
This testimony was clearly substantial evidence of Self’s negligence and was sufficient basis for the trial court’s apparent finding that it constituted the sole proximate cause of the collision.
II
Denny Roles, a Rogers police officer, investigated the collision when it happened. He prepared an accident report which was kept in the files of the Rogers Police Department. Before he was called as a witness by appellees, he reviewed this report at the request of their attorney. He testified that it was his practice to take a statement from each driver involved in a collision. He recorded those statements on his report. It is clear from the record that Roles did not have any independent recollection of the statements of the drivers and his memory was not refreshed by reading his report. He could only be sure of the statement made to him by Self because he had recorded it in his report. Appellant objected to “what he has got in that statement”. Roles testified, after the objection was overruled, that Self had stated that he didn’t know what had happened.
The importance of this point cannot be overlooked because the trial judge resolved the conflict between the testimony of the two drivers by the officer’s report of what the parties stated at the time of the investigation. The report itse-J was never actually introduced, but a critical portion of its content was read into evidence. We cannot sustain the admission of this evidence on the basis of the class of evidence called “recollection refreshed” on the record before us. Reliance upon a written recital made by the witness when he had a clear recollection of the facts recited is classified as a “past recollection recorded”. See McCormick, (2d Ed.) p. 14, § 9; p. 712, § 299; 4 Jones on Evidence (6th Ed.) 251, 266, § 27:1, 27:9.
Evidence is admissible under this classification if the witness had first-hand knowledge of the facts recorded, if the written record is an original made at or near the time of the event recorded and while the witness had a clear and accurate memory of it, but lacks a present recollection of it, and if the witness can vouch for the accuracy of the written memorandum. McCormick (2d Ed.), p. 712, Chapter 30; 4 Jones on Evidence (6th Ed.) 254, 267, 27:3, 27:9. Many years ago, we applied this rule in Woodruff v. State, 61 Ark. 157, 32 S.W. 102. It was lucidly stated by Mr. Justice Battle in Phoenix Insurance Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S.W. 959. The proper foundation was laid for the officer’s reciting the statement made by Self as recorded on the report made at the time.
Ill
During the cross examination of Linda Dye, she was asked if she had examined the Self vehicle and if she knew which part of the vehicle was struck. She responded to both questions in the negative. The court sustained appellees’ objection to the further inquiry, “You don’t know that his extreme right front —.” We certainly recognize that the cross-examiner should be accorded wide latitude in attempting to elicit facts which would tend to contradict or impeach testimony given on direct examination. We also recognize that undue limitation on examination constitutes an abuse of the trial court’s discretion. Still, the cross-examiner may be restricted in posing argumentative questions or addressing a question to a witness that erroneously assumes that a material fact has been proved or that the witness has testified to such facts on direct examination. 58 Am. Jur. 366, Witness § 666; 98 C.J.S. 211, 215, Witnesses, § 411,413; 98 C.J.S. 36, Witnesses, § 3286 (5); McCormick on Evidence p. 11, § 7; 4 Jones on Evidence 166, § 2521. The right to ask leading questions does not license the examiner to testify, in effect, by making statements of fact. Woodruff Electric Cooperative Corp. v. T.J. Daniel, 251 Ark. 468, 472 S.W. 2d 919. We find no abuse of discretion on this ruling.
Later, on cross-examination of the police officer the record discloses the following:
By Mr. Coffelt:
Q. He stated that he didn't know what happened?
A. Yes sir.
Q. Is that statement unusual when a man is driving down the highway when the light is green and somebody runs into them?
Mr. Mixon: Object. Offering an opinion.
The Court: Objection sustained. That’s the ultimate decision for the court to make/
Mr. Coffelt: Save our exceptions.
Again we find no abuse of discretion. This question is also argumentative and assumes that appellant’s version of the disputed facts as to the color of the traffic light was true. It called for a conclusion or opinion of the witness, or the drawing of an inference by him. Whether an affirmative answer to the question would have cast doubt on the officer’s credibility or would have added weight to the statement of Self as recorded by the witness is certainly a matter subject to argument. To say the least, the court's action was well within the latitude of its discretion.
The judgment is affirmed. | [
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PER CURIAM.
Appellant Canal Insurance Company (“Canal”) petitioned for review from a court of appeals decision remanding this case to the Crawford County Circuit Court for a determination of attorney’s fees to be awarded to Appellee Newcourt Financial, Inc. (“Newcourt”), under Ark. Code Ann. § 23-79-208. We granted the petition pursuant to Arkansas Supreme Court Rule l-2(e), and affirmed in part and reversed in part the case decided by the circuit court, remanding the matter to the circuit court for a determination of attorney’s fees, costs, and penalties to be awarded pursuant to Ark. Code Ann. § 23-79-208 at the trial level. Newcourt now petitions this court for its attorney’s fees and costs incurred in the appeal of this case.
Newcourt’s petition for fees and costs on appeal first contains a summary of the appeal costs it incurred. These totals include $2,020.70 for the costs of the preparation of the five-volume record, the $100 filing fee, and $273 for the cost of the briefs on appeal. Under Ark. Sup. Ct. Rule 6-7(b), the party prevailing on appeal may recover brief costs not to exceed $3 per page. Here, Newcourt’s brief totaled ninety-one pages at a cost of $273. Rule 6-7 (b) also allows a recovery of the filing fee of $100 and the cost of the preparation of the entire record. As such, Newcourt’s petition for its costs totaling $2,393.70 is granted pursuant to our rules.
In addition, Newcourt petitions this court for its attorney’s fees on appeal. Pursuant to Ark. Code Ann. § 23-79-208 and applicable case law, additional attorney’s fees may be taxed on appeal. Here, Newcourt seeks $15,000 in fees and an additional $585.42 in expenses based on 135 hours expended by Newcourt’s attorneys in the appeal. Canal counters the billing totals arguing that the fees and costs on appeal are composed of improper “block-billing” with overstaffing and unnecessary or excessive work. This court has recognized that the fee provided for in Ark. Code Ann. § 23-79-208 “is allowed only to reimburse an insurance policyholder or beneficiary for expenses incurred in enforcing the contract and to compensate him in engaging counsel thoroughly competent to protect his interests.” Phelps v. U.S. Credit Life Insurance Co., 340 Ark. 439, 443, 10 S.W.3d 854 (2000) (quoting Equitable Life Assur. Society v. Rummell, 257 Ark. 90, 91, 514 S.W.2d 224, 225 (1974)). The fee is not the property of the attorney; instead, it is indemnity to the litigant. Id. Thus, the fee awarded should not exceed the amount that the client is responsible for paying, otherwise the statute would be susceptible to abuse. The purpose of the statute is not to provide a windfall to attorneys; rather, it is to permit the insured to obtain competent representation. Id.
In deciding an award of attorney’s fees on appeal under Ark. Code Ann. § 23-79-208, there is no fixed formula to be used in awarding attorney’s fees. Southall v. Farm Bureau Mut. Ins. Co. of Ark., 283 Ark. 335, 676 S.W.2d 228 (1984). This court has interpreted Ark. Code Ann. § 23-79-208 as providing that “[i]n the event an insurer wrongfully refuses to pay benefits under an insurance policy, the insured may recover the overdue benefits, twelve percent (12%) damages upon the amount of the loss, and reasonable attorneys’ fees.” Northwestern Nat’l Life Ins. Co. v. Heslip, 309 Ark. 319, 326-27, 832 S.W.2d 463, 467 (1992) (quoting State Farm Fire & Cas. Co. v. Stockton, 295 Ark. 560, 565, 750 S.W.2d 945, 948 (1988)). The following factors are relevant in determining reasonable fees: (1) the experience and ability of the attorney; (2) the time and labor required to perform the service properly; (3) the amount in controversy and the result obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Heslip, supra; see also, Arkansas Model Rules of Professional Conduct Rule 1.5. While courts should be guided by the foregoing factors, there is no fixed formula in determining the reasonableness of an award of attorney’s fees. See Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); Stockton, supra; Parker, supra; Arkansas Blue Cross and Blue Shield v. Remagen, 25 Ark. App. 96, 752 S.W.2d 284 (1988). In Heslip, this court affirmed a $19,500 fee on a $36,000 award pursuant to Ark. Code Ann. § 23-79-208. In Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969), this court upheld a $6,000 fee on a $51,000 recovery under Ark. Stat. Ann. § 66-3239, the predecessor to Ark. Code Ann. § 23-79-208.
While these cases for attorney’s fees and costs under Ark. Code Ann. § 23-79-208 and its predecessor were decided based on the actions the attorneys took at trial and not on appeal, we think the same rules should apply in consideration of fees on appeal. As such, this court considers the fee bills submitted by Newcourt in light of the guidelines noted above. Here, Newcourt’s attorneys submitted billing records indicating that two attorneys," James D. Bradbury, Newcourt’s lead counsel, and D. P. Marshall Jr., an appellate attorney, worked substantially on the appeal of this case. While arguing that both attorneys were necessary in the appeal of the matter, Newcourt did reduce its overall appeal fee by $6,691 to eliminate any duplication of these attorneys’ time in preparation of the appeal. The elimination of this duplicate time spent ultimately reduced the hours spent on appeal to 135 hours from 193 hours. We also award fees based upon our standard $75.00 per hour rate. Accordingly, we grant Newcourt’s motion for attorney’s fees, costs, and expenses on appeal and award to Newcourt $10,125 in fees and $585.42 in expenses.
Motion granted. | [
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DONALD L. Corbin, Justice.
Appellant Corey Dewberry stice. County Circuit Court of five counts of aggravated robbery, five counts of theft of property, and one count of aggravated assault. He was sentenced to five terms of life imprisonment, five terms of thirty years’ imprisonment, and twelve years’ imprisonment, respectively. Hence, our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1 — 2(a)(2). Appellant’s attorney has filed a motion to withdraw and a brief stating that there is no merit to the appeal. See Anders v. California, 386 U.S. 738 (1967); Ark. Sup. Ct. R. 4-3(j)(l). Appellant has not filed a pro se brief, as contemplated by Rule 4-3® (2). The State agrees that there is no merit to the appeal and recommends that Appellant’s convic tions be affirmed. We conclude that counsel’s no-merit brief is not in compliance with Anders and Rule 4-3®, and we order rebriefing.
Appellant’s convictions arose from an incident that occurred at a bowling alley in Texarkana. The evidence showed that Appellant entered the business wearing a ski mask and carrying a gun. Appellant demanded money and jewelry from the five employees therein. He threatened to kill some of the employees and held one of the females at gunpoint during much of the time. One of the employees managed to call 9-1-1 while the robbery was occurring. As a result, the police were waiting outside the business when Appellant left. Appellant came out of the building with his gun raised and walked toward one of the officers. The officer responded by firing his gun. Other officers fired as well, and Appellant was hit by one of the shots. Appellant was arrested and charged with five counts of aggravated robbery and theft of property, for each of the five victims. He was also charged with committing aggravated assault on a police officer.
Appellant moved for a directed verdict at the close of the State’s case and then at the conclusion of all the evidence. The trial court denied both motions, and Appellant was convicted on all counts. During the course of the trial, Appellant made a motion to represent himself. The trial court denied the motion. No other adverse rulings were made during the trial. There was, however, one adverse ruling made prior to trial, when the trial court denied Appellant’s motion for a continuance. The argument portion of counsel’s brief discusses the issue of sufficiency of the evidence. It does not, however, discuss the two additional adverse rulings, which have been abstracted by the State pursuant to Ark. Sup. Ct. R. 4-3(h). As such, the brief does not comply with Rule 4-3®(l), which provides in pertinent part: Although the State has cured any abstracting defect by supplementing the additional adverse rulings, the fact remains that counsel’s argument addresses only the lack of merit regarding the sufficiency of the evidence. This court cannot affirm an appellant’s conviction without any discussion as to why a particular ruling by the trial court should not be meritorious grounds for reversal. See Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997) (per curiam); Whitfield v. State, 326 Ark. 762, 934 S.W.2d 484 (1996) (per curiam).
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court. [Emphasis added.]
Accordingly, we direct Appellant’s attorney to submit a new brief containing a discussion of the merit of any issue that can be raised regarding the denial of the motions for continuance and self-representation. The new brief shall be filed on or before June 6, 2000. In accordance with Rule 4-3 (j) (2), Appellant will then have thirty days from that date to raise any additional arguments regarding those issues.
Rebriefing ordered. | [
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John A. Fogleman, Justice.
Appellees recovered judgment for $56,000 against appellant for the taking of 3.32 acres of a 4.47 acre tract by eminent domain for construction of a controlled access highway to be known at Searcy Bypass. The property was located on U.S. Highway 67, two miles from Searcy. It had a highway frontage of 660 feet and was the site of a truck stop. All of the improvements, consisting of a restáurant and service station, were located on the part taken. Neither appellant’s expert value witnesses nor those called by appellees found any sales that were actually comparable, and appellant’s expert appraisal witness testified that there were none, although he referred to and relied upon one he called “most comparable” because it was the only commercial sale he found along the highway. For reversal, appellant lists three points which will be discussed in the order listed by appellant.
I
THE COURT ERRED IN PERMITTING WITNESSES FOR THE LANDOWNER TO TESTIFY TO A SALE WHICH THEY ADMITTED REFLECTED A VALUE CREATED BY THE HIGHWAY CONSTRUCTION, AND WHICH THEY CONSIDERED IN ARRIVING AT THEIR OPINIONS AS TO THE BEFORE VALUE OF THE LANDS INVOLVED.
The landowners called two expert witnesses on values. They were Tom Quattlebaum and Nick D’Auteuil. Quattlebaum stated that, in his opinion, the fair market value of the property before the taking was $67,300, and after the taking, $1,300. On cross-examination he stated that the depreciated value of the improvement was $44,800 and he assigned a value of $22,500, or roughly $5,000 per acre to the land. When asked how he arrived at that figure, Quattlebaum stated that he made an extensive study of all the land sales in the complete area and found that the land was closely held and sales erratic, ranging from $1,000 to $17,000 per acre. When asked where there was a $17,000 per acre sale, the witness pointed out a tract on an off-ramp of an interchange on the interstate highway. When further asked if he took that sale into consideration in arriving at his $5,000 value, he answered affirmatively. He also admitted that the highway construction caused that sale. Appellant’s motion that the court admonish the jury to disregard that sale was denied.
Later, still on cross-examination, Quattlebaum stated that he could not find a sale that was truly comparable, so he took an overall view of the prices which ranged from “a thousand to seventeen, twenty thousand dollars an acre. ” No motion to strike the value testimony of this witness, insofar as the land itself was concerned, was ever máde.
D’Auteuil stated his opinion that the fair market value of the property immediately before the taking was $75,500 and that the remaining 1.15 acres had a value of $1,500. He valued the land at $32,500, or approximately $8,000 per acre, but preferred to put it upon the basis of $50 per front foot. He testified on cross-examination that he searched the entire area but was unable to find anything comparable that had been sold, so' he started looking for comparable sales of commercial property that had sold about the time of the taking. When asked to tell of some of the sales he found, the third one he enumerated was the tract on .the interchange ramp. He was certain that the location of the interchange influenced that value. He admitted that, at the moment, he knew of no sale on Highway 67 that would reflect a value of $8,000 per acre other than the one influenced by the interchange, and that it had sold for $2,800 per acre about a year prior to the condemnation. Appellant moved to strike the value testimony of the witness as to this land because he considered the sale influenced by the highway construction and on the ground that he had not given a reasonable factual basis for the values he assigned to the land.
E. L. Person gave his opinion that the property was worth $90,000 before the taking and $1,000 after. He valued the land at $10,000 per acre. He referred to the same sale at the interchange ramp. Appellant moved to strike the landowner’s testimony because he demonstrated no reasonable factual basis for his opinion as to value.
We are unable to say it was shown that any of these witnesses had no fair or reasonable basis for his value testimony. But we need not elaborate upon other testimony, because the sole ground upon which appellant asks us to reverse the judgment is that the witnesses testified relative to a sale influenced by the highway construction.
The qualifications of these witnesses are not questioned. Appellant had the burden of showing that there was no reasonable or logical basis whatever for their opinions. Arkansas State Highway Commission v. Bane, 250 Ark. 142, 464 S.W. 2d 603; Arkansas State Highway Commission v. Jones, 256 Ark. 40, 505 S.W. 2d 210; Arkansas State Highway Commission v. Stobaugh, 247 Ark. 231, 445 S.W. 2d 511; Arkansas Louisiana Gas Company v. Hardgrave, 252 Ark. 257, 478 S.W. 2d 772. The sale of the property along the ramp was only one item bearing upon the baisis of the values assigned by them to the property before the taking, so this factor would not justify striking the testimony, even though it would be significant as to the weight to be accorded it. Arkansas State Highway Commission v. Pruitt, 249 Ark. 682, 460 S.W. 2d 316; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381. Consideration of a sale which would be impermissible direct evidence of value does not require that a landowner’s or expert’s opinion testimony be stricken where it is not based solely on that sale. Arkansas State Highway Commission v. Christello, 255 Ark. 717, 502 S.W. 2d 494; Arkansas State Highway Commission v. Potts, 240 Ark. 506, 401 S.W. 2d 3; Arkansas State Highway Commission v. Parks, 240 Ark. 719, 401 S.W. 2d 732, 26 A.R. 3d 775. Even though testimony pertaining to this sale might not have been admissible on direct examination, the fact that consideration was given to it was disclosed on cross-examination. In considering this sort of situation in Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201, we referred to a holding that an expert witness could and should take into account a matter not independently admissible, quoting the language of Judge Learned Hand that it would be absurd to exclude a qualified expert’s appraisal because he had considered inadmissible evidence and that he was allowed to appraise property because he was an expert and able to give proper weight to all data. Under authority of Russell, appellant was not entitled to have the value testimony stricken or to have the jury admonished not to consider the particular testimony. It should be noted that the witness involved in Russell was the landowner.
It has been said that such a prohibition goes against the introduction of testimony and not against the knowledge a witness may have, so that it is not error to refuse to strike the testimony of a qualified expert witness when cross-examination reveals that he took into consideration his knowledge of sales, evidence of which was not admissible. Arkansas State Highway Commission v. Kennedy, 234 Ark. 89, 350 S.W. 2d 526.
This case differs from Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495, relied upon by appellant, and its companion, Arkansas State Highway Commis sion v. Cromer, 242 Ark. 462, 414 S.W. 2d 90 in which we held that testimony as to enhanced value of property taken occasioned by construction, or contemplated construction of the very improvement for which it was taken was inadmissible, because it included an element of value which is not properly a part of just compensation. No witness in this case indicated that he thought the Person property had been enhanced in value by the construction of the new highway or that this contemplated construction had any impact on its value, and it would appear that sales unrelated to the highway construction at prices as low as SI,000 influenced the witnesses in arriving at their opinions as to land values just as much as the SI7,000 sale did. It was only when there were no comparable sales, in the opinion of these experts, that they made a survey for other sales. Nothing anyone could do would ever take the knowledge they had thus gathered out of their minds.
Of couse, the principal qualification of a landowner to express an opinion is his familiarity with the property. When as here, he qualifies in this respect, the adverse party must show, by cross-examination that there is no reasonable or logical basis for his testimony. Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381; Arkansas State Highway Commission v. Shields, 249 Ark. 710 460 S.W. 2d 746. It is axiomatic that a landowner has more leeway than does an expert in fixing values. Arkansas State Highway Commission v. Mullens, 255 Ark. 796, 502 S.W. 2d 626.
II
THE COURT ERRED IN PERMITTING THE LANDOWNERS’ WITNESSES TO TESTIFY TO THE CONTRIBUTORY VALUE OF THE IMPROVEMENTS TO THE LANDS INVOLVED WHEN SAID WITNESSES HAD NOT INSPECTED SAID IMPROVEMENTS FOR APPRAISAL PURPOSES.
These witnesses were experts, and seem to have had sufficient familiarity with the improvements on the property to express an opinion on the subject. No objection was made to the testimony of Quattlebaum in this regard until he had left the witness stand. It was during the testimony of D’Auteuil that a motion was made to strike the testimony. The denial of a motion so tardily made is not such an abuse of the trial court’s discretion as would call for a reversal. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874. But Quattlebaum had known the property for about 10 years and had been in the buildings many times, having gone to the restaurant to eat and drink coffee while in school and to eat breakfast when going duck hunting. He obtained dimensions of the buildings from drawings made by one Terrell Huff, he had talked with the owner about the details of construction and had observed photographs of the buildings, but he had never inspected the improvements for appraisal purposes before their destruction. Mr. Huff testified that he was in the real estate business and had made an inspection of the property in June 1972, at which time he made measurements of the physical improvements, both outside and inside, putting the measurements on graph paper. This paper was turned over to Quattlebaum when Huff became disabled due to defective eyesight and had to retire. The graph was introduced in evidence. There is no challenge to its accuracy.
D’Auteuil had been in the construction business for several years. He had occasion to patronize the restaurant because it was the only one open after midnight and he had eaten early breakfast there. Equipment from a restaurant he owned had been put in the building in 1971, and he had occasion to be about the property then. He also obtained dimensions from Huff and had viewed photographs of the buildings, the accuracy of neither of which is questioned. There is no indication that appellant’s complaint that the witnesses were simply stating Huff’s appraisal of the property is well founded.
An expert appraiser may base his testimony, at least in part, on hearsay. Arkansas State Highway Commission v. Bradford, 252 Ark. 1037, 482 S.W. 2d 107; Arkansas State Highway Commission v. Busby, 252 Ark. 383, 479 S.W. 2d 242; Arkansas State Highway Commission v. Davis, 248 Ark. 1168, 455 S.W. 2d 97. There was no abuse of the trial court’s discretion in refusing to strike the testimony of these witnesses for lack of familiarity with the improvement. See Arkansas State Highway Commission v. Pullen, 243 Ark. 759, 421 S.W. 2d 890.
Ill
THE COURT ERRED IN PERMITTING THE LANDOWNER TO TESTIFY TO THE CONTRIBUTORY VALUE OF THE IMPROVEMENTS TO HIS LANDS WITHOUT GIVING A COST LESS DEPRECIATION FIGURE.
Appellee Person testified that he acquired the property in 1955. He related the history and described the type and nature of construction in considerable detail before expressing his opinion as to the total value of the property before the taking. He valued the buildings at $54,000. He stated that the cost of construction was $42,000. He felt that the improvements were worth more when demolished than when they were built, because the labor of his family and himself was not included in the cost of construction and because he had made purchases of some materials at advantageous prices. Person had once been in the building supply business. He stated that he had sold for $75,000 a building constructed at a cost of $40,000 on two inexpensive lots. Appellant moved to strike this witness’s testimony as to the value placed on the improvements because the witness did not follow the proper methods in arriving at the evaluation of the improvements. This motion was not made until after Person’s testimony had been concluded and appellees had rested their case.
Appellant relied upon Arkansas State Highway Commission v. Richards, 229 Ark. 783, 318 S.W. 2d 605, as mandating deductions for depreciation from the structural cost of buildings when testing their enhancement of the market value of a tract of real estate. This rule would certainly apply if Person had testified as to the current replacement or reproduction cost of the buildings. But he did not. He told of the original cost. It has become rather commonplace for buildings to bring a much higher price on sale than the cost of construction.
It must be remembered that appellant is not objecting here to the introduction of the evidence as to cost of construction. When this evidence is admissible, as an aid to the jury in determining market value, the most that can be said about depreciation is that proper deduction must be made for depreciation by wear and tear and that the character and condition of the building are matters to be considered. See Arkansas State Highway Commission v. Richards, supra; Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495. But Person gave reasons why he did not think there was any functional or economic depreciation, and it was proper for economic inflation of values to be considered. See Arkansas State Highway Commission v. Shields, 249 Ark. 710, 460 S.W. 2d 746; Arkansas State Highway Commission v. Griffin, supra. According to Person’s testimony, no deduction for wear and tear was proper. There was no abuse of discretion in the court’s denial of this motion to strike.
The judgment is affirmed.
Byrd, J., concurs in the result. | [
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John A. Fogleman, Justice.
Arkansas Beverage Company brings this appeal from an adverse decree in its suit against appellee to recover a use tax deficiency assessment paid by it under protest. Appellant is engaged in the business of producing, selling and distributing bottled soft drinks called Pepsi Cola. The items purchased by it upon which the use tax was assessed were bottles, cardboard bottle cartons, an electronic bottle conveyor and a case conveyor. It is appellant’s contention that the glass bottles, which were returnable and reusable, and the cardboard cartons in which bottled drinks were placed and carried became recognizable, integral parts of the finished product, i.e., the bottled drink, and were thus exempt from use tax under Ark. Stat. Ann §§ 84-3106 (B) (Supp. 1973) and 84-1904 (i) (Repl. 1960) as items purchased for resale. Appellant also contends that the electronic bottle inspector, the bottle conveyor and the case conveyor were items of machinery purchased to replace, in its entirety, similar existing ma hinery used directly in producing and packaging articles of commerce at appellant’s manufacturing and processing plant in Arkansas and that the machinery replaced would have been exempt under Ark. Stat. Ann. § 84-3106 (D) (2) (a) (Supp. 1973), if that subsection had been in effect at the time of its purchase, and was exempt under Ark. Stat. Ann. § 84-3106 (D) (2) (Supp. 1973).
The chancery court held the returnable bottles and paper cartons were purchased for appellant’s use and consumption and were subject to tax, but that appellant was not a manufacturer within the meaning of Ark. Stat. Ann. § 84-3106 (D) (2). It also held the bottle inspector, bottle conveyor and case conveyor were not used directly in a manufacturing process and were subject to the use tax.
Let it be remembered that taxation is the rule and exemption the exception, so the heavy burden of clearly establishing the claimed exemptions beyond reasonable doubt rested upon appellant. Heath v. Miden Equipment Co., 256 Ark. 14, 505 S.W. 2d 739 (1974); Scurlock v. Henderson, 223 Ark. 727, 268 S.W. 2d 619. Tax exemption provisions must be strictly construed against exemption and to doubt is to deny the exemption. Heath v. Midco Equipment Co., supra; Hervy v. Tyson’s Foods, 252 Ark. 703, 480 S.W. 2d 592. It must also be remembered that appellate review in this case is by trial de novo upon the record, but that the chancery court’s findings of fact will not be reversed unless clearly against the preponderance of the evidence.
Appellant lists the following points upon which it relies:
A
RETURNABLE BOTTLES AND CARDBOARD CARTONS ARE EXEMPT FROM USE TAX AS PURCHASES FOR RESALE UNDER §§ 3106 (B) and 84-1904(i)
1. Returnable bottles and cardboard cartons are a recognizable, integral part of the finished product.
2. There is a sale of the bottles and cartons within the meaning of the Gross Receipts Act.
3. The cost of the bottles and cartons is included in the sales price of the product. The deposit is not the sale price of the bottle.
4. Prior to 1973 appellee recognized that returnable bottles and cardboard cartons were exempt from sales and use tax.
5. Other jurisdictions support appellant’s position.
B
THE ELECTRONIC BOTTLE INSPECTOR, CASE CONVEYOR AND BOTTLE CONVEYOR ARE EXEMPT FROM USE TAX UNDER § 84-3106 (D) (2) (SUPP. 1973).
1. Appellant’s plant is a manufacturing or processing plant within the meaning of § 84-3106 (D) (2)
2. The machinery in question is used directly in producing, assembling, processing or packaging the bottled beverage.
3. The items in question were purchased to replace existing machinery in its entirety.
The chancellor held that appellant had failed to meet its burden of proof as to the bottles and cardboard cartons. We agree as to the bottles but not as to the cardboard cartons. We should say at the outset that as to the bottles, we consider the case of Hervey v. Southern Wooden Box, Inc., 253 Ark. 290, 486 S.W, 2d 65 to be controlling in spite of the fact that there had been an administrative determination that the bottles were exempt.
The bottles were returnable. The beverage sold by appellant is bottled under carbonation, sealed with a crown, and sold, insofar as is pertinent here, to retailers who sell food and beverages for consumption and who collect and remit a sales tax. These bottles containing the carbonated drink are delivered to appellant’s customers in cases containing 24 bottles each in 24 separate compartments or pockets or with partitions containing cardboard cartons into which either 6 or 8 bottles of the beverage have been packed. Two-thirds of appellant’s bottled drinks are packaged in the cardboard cartons, and appellant’s customers nearly always sell a full package to the ultimate consumer, who takes the package from the seller’s place of business to the place of consumption in the carton. The retailer, appellant’s customer, puts up a deposit of SI.00 for each case of the bottled beverage. Seventy-two cents, or three cents per bottle, is for the bottles and twenty-eight cents for the wooden shell or case. No deposit is made on the paper cartons. The price of the drink is the same per bottle, regardless of whether it is packaged in a cardboard carton. The retailer requires the same deposit of his customer in order to encourage the return of the bottles. Whenever a new supply of beverages is delivered by appellant to a customer by truck, the driver picks up whatever empty bottles, cardboard cartons and wooden cases the customer has on hand and the retailer is credited with the amount he was charged as a deposit on such bottles and cases. The net charge for the bottles and cases delivered after deducting any such refunds is credited to appellant’s “deposit income account.” Appellant says that its customers are not accountable to it for either the bottles or the cartons and cannot be forced to redeem their deposits. Appellant charges the cost of new bottles and cartons as a part of the cost of sales at the time they are filled and packaged. The amount of any deposit charged or received is credited to the “deposit income account” from which is subtracted the amount of any refunds at the end of the fiscal year, the net credit balance in the “deposit income account” is then deducted from cost of sales, and appellant’s income, as shown by its books, is increased by that amount.
So far as appellant’s books are concerned the bottles and cartons are treated as a part of the cost of goods sold and not as overhead. New bottles that have never been put in service are carried on the books at cost when inventory is taken and used bottles, either full or empty, are valued at the deposit value. The only cartons on the balance sheet are new, unused cartons on hand at the end of an accounting period. Bottles and cartons in the hands of retailers or consumers do not appear on appellant’s books at all.
The reason given by appellant for requiring the deposit is to encourage the return of the bottles for reuse. By dividing the number of cases of returnable bottles delivered by the number not returned during a fiscal year, appellant calculated that during the tax year involved, it used a bottle an average of 10 times before it was lost or discarded. By dividing the net cost of bottles lost or discarded during that year by the number of cases of returnable bottles, appellant determined that its cost of bottles for each 24-bottle case was 17.2 cents. The actual average cost of new bottles bought during appellant’s fiscal year 1972 was 9 cents. During the same fiscal year the average selling price was Si.92 per case, the average cost was SI. 106, and the overhead cost $0,634, leaving a net income of SO. 18 per case before taxes and $0,078 after taxes.
Overhead expenses in appellant’s accounting system consist of depreciation, advertising, promotion, delivery truck expenses, and other general expenses not charged as direct cost of the product. The cost of bottles and cartons under this accounting method comprised about 20% of the total cost of goods sold. In the case of non-returnable bottles, appellant charges their entire cost to the sale, and the Department of Finance and Administration recognizes that disposable bottles and cans are exempt from use tax as an integral part of the finished product. The selling price of the product in a non-returnable container is higher than that in returnable bottles.
All the bottles bear the Pepsi Cola Company trademark. Appellant acquires bottles that come from other franchised Pepsi Cola dealers because it accepts any bottle bearing the company trademark in giving refund credit. If a neighboring Pepsi Cola bottler increases its deposit, refund it is necessary for appellant to also make an increase in order to insure return of bottles it had originally bought and distributed in its territory. Appellant, in the fiscal year 1973 had increased the bottle deposit to 5 cents for this reason. Using the formula previously applied, appellant calculated that it then used each bottle 12 times.
The bottle deposit is not treated as a part of the sales price of the product under regulations issued pursuant to the Wage and Price Stabilization Act, under which the selling price of the bottled drink was regulated. No sales tax is paid by appellant when its customer returns bottles for deposit refund. The trademark of the Pepsi Cola Company on the bottle serves to identify the product for the consumer. Appellant distinguishes its bottled product from those dispensed at a soda fountain or from a vending machine in a paper cup, because those so dispensed must be consumed immediately and usually on the premises where purchased, while the bottled drink, being carbonated and sealed under pressure in a strong container, may be transported and stored for later consumption.
Upon these facts, appellant contends that the returnable bottles become a recognizable, integral part of its product — a packaged, bottled beverage — exempt as goods used in the manufacture, compounding, processing, assembling or preparing it for sale. Thus, says appellant, under our statutes, the bottles were purchased for resale. Appellant admits that the Arkansas case nearest in point is Hervey v. Southern Wooden Box, 253 Ark. 290, 486 S.W. 2d 65, wherein we held that there was no exemption for wooden cases, in which the beverages sold by soft drink bottlers were delivered to the retailer, but that paper cups used in vending machines, from which the bottler sold its products at retail, were exempt. Appellant says that the crucial test is whether the bottle becomes a recognizable integral part of the product sold by it.
Appellant likens the bottles in this case to the paper boxes in McCarroll v. Scott Paper Box Company, 195 Ark. 1105, 115 S.W. 2d 839, and to the paper cups in Hervey v. Southern Wooden Box Co., supra, saying that the product sold is a bottled, carbonated beverage which could not be preserved or sold if it were not contained in a bottle and that there is no real distinction to be made between a returnable and a nonreturnable bottle. Appellant reasons that it surrenders both title and possession when it delivers the bottled beverage. It considers the Scott. Paper Box case controlling because the bottle is a component part of the product sold in unchanged form to the retailer and in turn to the consumer. Since the bulk syrup used at fountains is sold by it at a much lower price than the bottled drink, it takes the position that the cost of the bottles is an important element in the cost of the product and in computation of its selling price and is considered as such rather than as a part of general overhead expense, and the bottles are not used for any other purpose.
We do not agree, largely for the same reasons given for denying the application of the exemption statute to wooden soft drink cases. If appellant sells its bottled beverage at 8 cents per bottle, its cost analysis reveals that only $0.0075 is left for profit and payment of taxes. We cannot accept the premise that appellant is selling a 9 cent bottle for a 3 cent or even 5 cent deposit. The deposit, admittedly, is to “encourage” the return of the bottle and if appellant’s calculations are correct, it rather effectively does so. For this or other reasons, bottles are returned and used over and over. Appellant’s electronic bottle inspector is used to detect cracks in bottles to be used for bottling and to cause them to be discarded. Appellant’s internal bookkeeping, by which it shows a profit on a “sale” of 24 bottled drinks for $1.92 when the bottles alone, if new, had cost $2.16, does not afford any basis for distinction of the Southern Wooden Box Company principle, even if the method is used throughout the bottling industry. Obviously, regardless of the “surrender” of title and possession, appellant expects to get its bottles back and if the deposit is not sufficient to assure that it does, it is raised. Otherwise, appellant could not long remain in business.
We regard substance to be more important than form in determining the nature of the transaction. In substance, the transactions involving the bottles when delivered to appellant’s customers, when “sold” by them and when returned to appellant are not sales, and the purchase of the bottles by appellant is not for resale but for use. In this respect, we agree with the Court of Appeals for the District of Columbia, 214 F. 2d 197 (1954). See also, Gay v. Canada Dry Bottling Co. of Florida, 59 So. 2d 788 (Fla. 1952); Wichita Coca Cola Bottling Co. v. U.S., 152 F. 2d 6 (5th Cir. 1945); Evans v. Memphis Dairy Exchange, 194 Tenn. 317, 250 S.W. 2d 547 (1952). We find that the bottles are used by appellant and that there was no sale or purchase of them for resale. Appellant’s bookkeeping is, as appellee suggests, more consistent with an amortization of the cost of the bottle than with a purchase for resale. The fact that in some cases retailers charge a “sales tax” on the consumer’s bottle deposit, cannot transform the character of the bottler’s transactions. Although the administrative interpretation of the statutes by appellant’s predecessors may be considered as persuasive, we are not controlled by it and disagree with it. Certainly, we cannot say that appellant has, beyond reasonable doubt, established its entitlement to this exemption.
We reach a different result as to the cardboard cartons, which also bear the trademark of Pepsi Cola. Although it is true that a substantial number of them are returned and reused, it seems to us that this is largely attributable to fortuitous circumstances, among which is the convenience of using them for returning empty bottles. Appellant does nothing to assure their return. No deposit has ever been required. No credit is given to the retailer for return of the cartons. These cartons are delivered to retailers, primarily grocery stores, in non-compartmentalized wooden cases. The retailer almost always sells the filled carton to the consumer as a package just as he receives it. One purpose of the use of the carton is to encourage the purchase of more than one bottle of appellant’s beverage. Another is for convenience of the customer in carrying and handling. Appellant’s cost accounting on the cartons is handled in a manner similar to the treatment given bottles, except, of course, for the “deposit income.” Appellant calculates that enough usable cartons are returned to enable the six-bottle cartons to be used two or three times and the eight-bottle ones, 3.6 times or an overall average of 2.8 times per carton. On this basis, appellant calculated that its cost, per carton, was 4.7 cents, which is included as a cost item. Until returned cartons are put into the production line, appellant does not know whether they can be reused and does then discard damaged cartons. Because of this, and because their value is so small, used cartons are not considered for inventory purposes. Under these circumstances, we find that appellant’s cartons are more analagous to the paper boxes in the Scott Paper Box case and the paper cups in the Southern Wooden Box case than to the wooden cases in the latter case or to the wrapping paper, paper bags and twine in Wiseman v. Wholesale Grocers Association, 192 Ark. 313, 90 S.W. 2d 987.
B 1
We cannot agree with the chancellor that the appellant is not a manufacturer within the meaning of Ark. Stat. Ann. § 84-3106 (D) (2). The bottled soft drink is a distinctly different product from the mixture of syrup and carbonated water distributed at a fountain or by a vending machine. Even though appellant produces and sells Fountain syrup in bulk and buys and sells canned beverages, its principal business is the production and sale of bottled carbonated soft drinks, nearly all of which are sold to retailers for resale to the ultimate consumer. Appellant makes its own syrup. The bottled beverage is produced on a rather sophisticated production line, beginning with a case unloader, where empty bottles are removed from the cases and fed into the line, and ending with the “palletizing” of cases fitted with the bottled product and ready for market. During the process, the bottles are washed, inspected, filled, capped and repackaged into cases.
The syrup used by fountains and in vending machines serving the beverage in a paper cup is not the same as the concentrate purchased by appellant. The syrup sold to fountains is made by appellant who also makes it for its finished bottled product. In the preparation of the liquid beverage, water from the city supply is pumped into a reaction tank, where chlorine, lime and ferrous sulphate are added to reduce hardness and alkalinity, to oxidize such organic matter as bacteria and micro-organisms and to remove all insoluble material. The amounts of the chemicals vary from day to day after testing of the city water. The treated water is then pass ed through filters first of white, high silicate sand, then of carbon, and finally, of fine fiberglass. That water is added in proper proportions to granulated sugar in a stainless steel mixing tank to form a simple syrup to which is added, in precise order, á liquid concentrate purchased from the franchiser, vanilla, a citric acid solution, and, if necessary, a solution of benzoate of soda. The resulting mixture is “bottling syrup” if, after having been thoroughly stirred and left sitting for a certain period, and tested, it falls within accepted tolerances. Some syrups then require “aging” for a proper blending. After all tests are satisfactorily passed, the syrup passes into a tri-o-matic cooler where the syrup and water are mixed in exact proportions, cooled to 34°, and carbonated by being pumped through a spray head into a mist which is saturated with carbon dioxide gas. The finished beverage is then ready for the filling and crowning of bottles. This liquid goes into a uniblend filler, which by means of a counterbalance pressure system maintains a proper amount of the liquid in the filler tank where it, by a filling operation, is fed into the bottles, which have been through a cleaning and inspection process. Then the filled bottle is crowned and transferred to a belt for completion of the packaging and stacking process, after which it is moved to the stock warehouse or a delivery truck. The only item furnished by the Pepsi Cola Company is the concentrate.
The bottling operation is considered to be manufacturing in the bottling industry. “Rules and Regulations Pertaining to Bottling Plants” promulgated by authority of Ark. Stat. Ann. § 82-110 (Repl. 1960) require a properly screened syrup room for the mixing and handling of syrups and other ingredients whenever they are mixed for manufacture of beverages. They also require all products used in manufacture, such as extracts, flavors, sugar, syrup, color, water and the like be pure and wholesome.
For the purpose of the sections of the statute in question here, manufacturing and processing refer to and include those operations commonly understood to be within their ordinary meaning. It is the position of appellee that appellant has faiied to meet its burden of proof and that it has only shown that it is engaged in a process of pouring Pepsi Cola syrup and carbonated water into a cleaned and inspected bottle on which it then puts an air tight cap. Appellee relies principally upon C.J.C. Corp., v. Cheney, 239 Ark. 541, 390 S.W. 2d 437, where we held that the “ready-mix” concrete business was not manufacturing, because it involved only the mixing of various basic ingredients or material to prepare a concrete product for ultimate use.
We think, however, that the proof clearly shows that appellant is engaged in manufacturing at a manufacturing plant or facility. A particular flaw in appellee’s reasoning arises from the premise that the process is pouring Pepsi Cola syrup into a bottle. He does, however, recognize that the syrup poured into the bottle is a manufactured article. It is clear from the undisputed testimony that this syrup is manufactured by appellant and the extensive process by which this is accomplished was described in detail. The courts follow the common usage or popular meaning of the word manufacturing in construing the statute. Pellerin Laundry Mach Sales Co. v. Cheney, 237 Ark. 59, 371 S.W. 2d 524; C.J.C. Corporation v. Cheney, 239 Ark. 541, 390 S.W. 2d 437. We think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business. Morley v. E. E. Barber Construction Co., 220 Ark. 485, 248 S.W. 2d 689. The act itself recognizes that manufacturing encompasses the processing, fabricating or assembly of raw materials into a form of personal property to be sold in the commercial market. See, Ark. Stat. Ann. § 84-3106 (D) (2) (c). In a slightly different context we have approved a definition of a manufacturer as one engaged in making materials, raw or partly finished, into wares suitable for use. Riggs v. Hot Springs, 181 Ark. 377, 26 S.W. 2d 70.
We find that appellant is engaged in manufacturing a bottled carbonatecl beverage from raw ingredients such as water, sugar, Pepsi Cola concentrate, vanilla, citric acid and carbon dioxide and that the plant wherein the process is carried on is a manufacturing plant. This was the result reached in Oklahoma. Oklahoma Tax Commission v. Oklahoma Coca Cola Bottling Company, 494 P. 2d 312 (Okla., 1972). See also, Assessors of Boston v. Commissioner of Corporations and Taxation, 323 Mass. 730, 84 N.E. 2d 129 (1949). The fact that the Pepsi Cola concentrate or other ingredients had been partly processed does not take the operation out of the field of manufacturing.
It is not so easy to deal with the question whether appellant met its burden of proving that the electronic bottle inspector, case conveyor and bottle conveyor are used directly in the actual manufacturing or processing operation at any time from the initial state where actual manufacturing or processing begins through the completion and packaging of the finished end product. There is no difficulty in fixing one terminal of this requirement. The “packaging” of the end product is accomplished when the bottled carbonated beverage is placed in the wooden cases. The great difficulty lies in ascertaining the initial stage where the actual processing begins. There seems little room for doubt that each piece of machinery or equipment involved here was used directly in producing, assembling, processing, finishing or packaging of an article of commerce.
The bottling process is conducted on a fully automated production line. The case unpacker lifts empty bottles from the wooden cases and places them upon a bottle conveyor upon which they are fed into a bottle washer. The case conveyor, a continuous belt, then takes the empty wooden cases from the case unpacker to the case packer at the other end of the production line where it is loaded with filled drink bottles. The empty bottles taken from the cases are conveyed through a thorough rinsing and washing, to an inspection station. There two persons check for chipped, cracked, uncleaned or beaded bottles, which are removed from the bottle conveyor. The bottles remaining on the conveyor then pass to the electronic bottle inspector, which projects a beam of light through the base of each bottle into a receiver. If the beam of light is reduced or deflected by any object or material in a bottle, that bottle is rejected; otherwise, it passes to the filler where it is filled with the finished beverage coming from the tri-o-matic cooler and then moved to the crowner or bottle capper where it is sealed and then it goes to the case packer where it is packed into a wooden case with 23 other such bottles. According to appellant’s vice president and chief operations officer the manufacturing process begins, at the latest, with the case unpacker, and each step in the process thereafter is just as important to the production of the final finished product as any other and without any of them the production line would not function.
The bottle conveyor in question extends from the bottle washer through the electronic inspector. The functions of the bottle conveyor and the bottle inspector are completed before the filling of the bottles. Neither of the three machines in question has anything to do with the liquid before it is put in the bottle. It seems clear to us that the electronic bottle inspector and the bottle conveyor are used directly in producing, assembling, processing or packaging of the article of commerce between the initial state of actual manufacturing or processing and the completion of the finished article. A majority of the court also feels that the case conveyor falls into this category.
We cannot agree with appellee that only that machinery used in the mixing or the filling process could possibly be considered as machinery or equipment used directly in manufacturing or processing. Neither do we agree with appellant that the bottle conveyor is excluded as transportation equipment not directly used in the manufacturing or processing operation. The majority of the court does not agree that the case conveyor is excluded transportation equipment. In this respect we are influenced by the fact the process is a continuous, synchronized operation from the time the empty bottle is taken from the case until the case filled with the bottled beverage is palletized for storage, or delivery, without any human intervention, except for the removal of broken bottles and the intermittent removal of filled bottles for testing the product, and, if any one machine or device in the production line fails to function, the operation stops. In such an integrated process, we must consider each such machine or device as being used directly in producing, assembling, processing and packaging the ultimate product. This was the approach we took in Cheney v. Georgia-Pacific Paper Corp., 237 Ark. 161, 371 S.W. 2d 843; Arkansas Rwy. Equipment Co. v. Heath, 257 Ark. 651, 519 S.W. 2d 45 (1975). See also, State v. Try-Me Bottling Co., 257 Ala. 128, 57 So. 2d 537 (1952); Schenley Distillers v. Commonwealth, 467 S.W. 2d 598 (Ky. 1971).
The decree is affirmed insofar as it affects the bottles, but reversed as to the cardboard cartons, the case conveyor, the bottle conveyor and the electronic bottle inspector.
The Chief Justice, Mr. Justice Byrd and Special Justice John S. Daily dissent from the affirmance but concur in the reversal. Mr. Justice Holt was disqualified and did not participate. | [
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John A. Fogi.kman, Justice.
This appeal involves the question whether a certain bank savings passbook account designated as a joint account with right of survivorship could be withdrawn by one of the depositors. The chancery court held that it could, under the circumstances prevailing in this case. We agree.
The account had its inception in the deposit of $10,000 of the proceeds of a policy of life insurance of which Gladys Clements was the beneficiary. Mrs. Clements endorsed the insurance company check for $12,000 and turned it over to her daughter Iris Coristo, who took it to The Twin City Bank on November 7, 1969, and made the deposit, after having deposited $2,000 of the proceeds in her own checking account to apply toward the cost of adding a bedroom to the Coristo dwelling house to provide living quarters for Mrs. Clements. Mrs. Coristo took the signature card for the account to her home after having made the deposit. There Mrs. Clements and Mrs. Coristo’s husband, Don, signed the card and it was returned to the bank. On the face of the card there were stamped these words:
Receipt is hereby acknowledged of Pass Book 49 Rules and Regulations, the terms of which are agreed to.
The account designation read, “Gladys Clements or Don Coristo or Iris Coristo”. Upon this designation, of course, it was clear that any of the parties might have made withdrawals from the account unless a written notice restricting that right was given or unless the passbook terms prevented this being done.
Mrs. Clements did go to the bank on August 30, 1971, and withdraw the entire account and place it in an account designated as “Mrs. Gladys Clements (only)''. On February 24, 1972, she executed a signature card endorsed “Change my (savings) account to a joint account with right of sur-vivorship styled 'Gladys Clements or Melvin L. Huffman’. On that card the account designation was “Gladys Clements or Melvin L. Huffman''. The bank changed the account as designated and assigned the same number to it as that previously assigned to the joint account with the Coristos. The money was on deposit in this account when Mrs. Clements died.
Appellants assert four points for reversal. They are:
The trial court erred in refusing to enforce the contract betvveen the joint depositors and the bank which required presentation of the passbook before the joint account could be withdrawn by either depositor.
II
The trial court erred by holding that the money in dispute was not a gift to Iris Coristo from Gladys Clements prior to November 7, 1969.
III
The trial court erred in failing to hold that the defendants were estopped by their contract to deny that the funds in dispute could not be withdrawn unless the passbook is presented.
IV
The trial court erred in not reforming the passbook by inserting the names of Don Coristo or Iris Coristo.
We shall treat them in order.
I
Appellants argue that Mrs. Clements had no right to withdraw the money in the first account without presenting the passbook. The evidence disclosed that this passbook was never out of the possession of Iris Coristo. The only evidence that it was ever seen by Mrs. Clements was the testimony of Mrs. Coristo that she showed it to her mother before putting it in the daughter's cedar chest. On the first page of the passbook, the name of the depositor was shown as “Gladys Clements”. Directly following the name and address of the bank these words appear: “This book must be presented when money is deposited or withdrawn. This account is not subject to check.” Appellants contend that these words are a part of the “Rules and Regulations" to which Mrs. Clements agreed and that they constitute a contract among the bank and the individual joint holders of the account designated on the signature card. They rely heavily upon The Keokuk Savings Bank & Trust Co. v. Desvaux, 259 Iowa 387, 143 N.W. 2d 296 (1966); Welch v. North Hills Bank, 442 S.W. 2d 98, (Mo. App. 1969); and Badders v. Peoples Trust Co., 236 Ind. 357, 140 N.E. 2d 235, 62 ALR 2d 1103 (1957). Assuming, without deciding that, as held in Badders, the passbook does constitute a contract between the depositors as well as between the depositors and the bank, we do not agree that this contract prevented the withdrawal made by Mrs. Clements.
The parties clearly agreed that they would be bound by the terms of the passbook rules and regulations. We do not consider the requirement that the passbook be presented to be a part of those rules and regulatons. In the back of the passbook, rules are printed under the title “Terms and Conditions Applicable to TCB Passbook 49 Savings Account”. These are numbered from one to ten. There is nothing whatever in these terms and conditions to prevent withdrawals without presentation of the passbook. The first is entitled “Establish Accounts". The next three relate to deposits. Only items five and seven have any bearing on this issue at all. Because we consider them as governing the question we reproduce them in full, viz:
5. WITHDRAWAL OF DEPOSITS
Funds on deposit during the entire 90 day period will be eligible for withdrawal without notice during the first ten days following the 90 day period and each subsequent 90 day period. Funds on deposit may also be withdrawn at other times upon not less than 90 days written notice to the bank signed by the depositor, designating the date on which withdrawal is to be made, in which case interest will be paid to the date of withdrawal stated in the notice. No interest will accrue on the funds to be withdrawn under a “notice to withdraw’’ after the designated withdrawal date. Funds on deposit subject to a notice of withdrawl will not be eligible for withdrawal during the 10 days following the 90 day interest period. All withdrawals will be made only upon presentation by the depositor of appropriate account information and proper identification.
7. JOINT DEPOSITS
When two or more persons are named as depositors in form indicating that it is payable to any one of them, or the survivor or survivors of them, notice of redemption may be given to, payment of principal and interest may be made to, and notice of withdrawal may be signed by any one of the parties during the lifetime of all, or any survivor or survivors, after the death of one or more of them.
It will be readily seen that there is no requirement in these “terms” that the passbook must be presented when a withdrawal was made by any of those otherwise authorized to make it. Furthermore, there is no reference to the statement on the first page of the passbook relating to its presentation. It is clear to us that these “terms and conditions,” and not the statement on the first page of the passbook, constitute the “terms” to which Mrs. Clements agreed and are the rules and regulations constituting the contract between the depositor and the bank. In this respect, this case differs from Keokuk Savings Bank & Trust Co v. Desvaux, 259 Iowa 387, 143 N.W. 2d 296 (1966), where the requirement of presentation of the passbook was clearly a part of the rules of the bank assented to by the parties. If there was any doubt about the governing rule, it seems to have been dispelled by Bernice Orisini, operations officer at the bank. She testified that Item 7 quoted above was a part of the “passbook” rules and regulations and that, while normal procedures of the bank were to ask for the passbook when a withdrawal was made, that the presentation of the book was not a binding requirement and a withdrawal without it was possible. Although she testified that everything in the passbook was a part of the rules and regulations of the bank, when asked by the court to state the purpose of the passbook requirement, Ms. Orsini explained that treatment of passbooks had undergone a change in banking, because before bank statements were rendered to depositors, the passbook was the only record of the account. She stated a withdrawal without the passbook was possible and one of the specific circumstances under which an account could be withdrawn without the passbook was a “change of beneficiary”.
Appellants also rely heavily upon Welch v. North Hills Bank, 442 S.W. 2d 98 (Mo. App., 1969); Badders v. Peoples Trust Co., 236 Ind. 357, 140 N.E. 2d 235, 62 ALR 2d 1103 (1957), and Davis v. Chittenden County Trust Co., 115 Vt. 349, 61 A. 2d 553 (1948) . But in those cases neither the existence of a rule requiring presentation of the passbook for withdrawals nor its incorporation into the contract between the bank and the depositor was subject to question, as it is here. We deem the terms and conditions hereinabove quoted to be the only contractual terms relating to withdrawal.
It has been held that a requirement that the passbook be presented at the time of withdrawal is for identification of the depositor and for the convenience and protection of the bank and, as such, may be waived by the bank. Mathey v. Central National Bank, 179 Kan. 291, 293 P. 2d 1012 (1956); In Re Blose’s Estate, 374 Pa. 100, 97 A. 2d 358 (1953); 9 CJS 1424, Banks and Banking, § 1002. We have no quarrel with the authorities holding that such a requirement may be incorporated into the agreement between the bank and the holder of a joint account so that it may not be waived without the concurrence of all of them. We simply do not agree that this requirement became a part of the contract here. The location of the passbook requirement and its separation from the “terms and conditions” which do not mention it, when considered along with the testimony of Ms. Orsini, is clearly indicative that it was inserted and intended to be for the bank’s benefit only, and subject to waiver by it. To say the least, we cannot say that the chancellor’s finding in this regard is clearly against the preponderance of the evidence.
II
Appellants also argue that the money deposited was a completed gift by Mrs. Clements to Iris and Don Coristo. The chancellor held that the money on deposit in the joint account to which all were parties was not such a gift. Appellants base their argument upon evidence showing that upon receipt of the check for $12,000 Mrs. Clements endorsed the check in blank and delivered it to her daughter Iris, who deposited $2,000 from it in an account in her own name and the remaining $10,000 in the joint account, retaining the possession of the passbook at all times thereafter. They also rely upon the testimony of the daughter that her mother gave her the money, told her to do with it as she pleased, tried to get her to put it in a trust for the Coristo boys and encouraged her to buy anything she wanted because she had the money.
All elements of a completed gift inter vivos must be shown by clear and convincing evidence. Porterfield v. Porterfield, 253 Ark. 1073, 491 S.W. 2d 48. In Porterfield we reiterated the oft-expressed view that, in order to constitute such a completed gift, there must be an actual delivery of the subject matter of the gift to the donee with a clear intent to make an immediate, present and final gift beyond recall, accompanied with an unconditional release of all future dominion and control by the donor over the property delivered. We also said that the “clear and convincing” rule meant that the gift must be established so definitely as to put the matter beyond any reasonable doubt.
Of course, the opening of this account did vest an interest in appellants under Ark. Stat. Ann. § 67-552 (Repl. 1966), whether Iris Coristo or Mrs. Clements be considered as the “person opening such account," because the signature card itself constituted a designation “in writing to the banking institution that the account .... be held in joint tenancy with right of survivorship”. The account became the property of the three as joint tenants with right of survivorship. See Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570; Willey v. Murphy, 247 Ark. 839, 448 S.W. 2d 341. But we are not able to say that the chancellor was in error in holding that neither the entire $12,-000 check nor the $10,000 deposit was a gift by Mrs. Clements to appellants, or either of them. Mrs. Clements moved into the Coristo home about a week after her husband’s death, under an arrangement whereby the Coristos built an addition to their dwelling house, for which Mrs. Clements was to, and did, pay, in order to have room for her. When the insurance company check was delivered to Iris Coristo, she told her mother she intended to put $2,000 of the money in her own account for the building of the addition. Iris Coristo testified on direct examination that her mother gave no instructions and there Was no other discussion at the time of the delivery of the check. It was on cross-examination that she said that her mother gave her the money. Mrs. Coristo admitted that her mother was upset over her husband’s death at the time. The evidence does not disclose that Mrs. Clements ever went to the bank while she lived with appellants, except on August 30, 1971, and the only testimony that Mrs. Clements ever saw the passbook was that of Mrs. Coristo. Mrs. Clements did sign the signature card, but there was no discussion of the designation of the account at that time. The bank had designated the account as joint upon the instructions of Iris Coristo and Iris Coristo testified that there was no discussion with the bank personnel about her right to deposit the $2,000 in her own account. The passbook showed the savings account to be in the name of “Gladys Clements” only. Iris Coristo doubted that she noticed this until it was called to her attention by an officer of the bank when she presented the passbook in February 1972 to obtain a loan, even though she jealously guarded her possession of it, taking it out of her cedar chest only when she presented it to the bank for posting of accrued interest on one or two occasions. The application for the loan and the loan were made after Mrs. Clements had withdrawn the money from the joint account. Iris Coristo testified that she wanted the money to care for her mother. It is quite significant that the interest on this account was not reported on the income tax returns of appellants. The excuse for doing this, given by Iris Coristo, was that their tax accountant advised them not to do so because her mother's income, which otherwise consisted only of rent and social security payments, should be permitted to “absorb it”. The signature'card, and bank rules, as well as § 67-552 clearly recognized that any one of the three joint tenants could withdraw any or all of the money from the account, and there was never any contrary written designation given to the bank.
We cannot say that there was no reasonable doubt about the making of a completed gift by Mrs. Clements or that there was a clear intent on the part of Mrs. Clements to put the money beyond her own recall or to release the money from all future dominion and control by her. Thus, we cannot say that the chancellor erred in this finding.
Ill
Appellants also argue that both the bank and Mrs. Clements’ executor are estopped by their contract to deny that the funds in dispute could not be withdrawn unless the passbook was presented. As hereinbefore pointed out, Mrs. Coristo’s testimony is the only evidence that Mrs. Clements ever saw the passbook which Mrs. Coristo said was carefully secreted by her after she took it home. If Mrs. Clements did see the passbook requirement she must also have noted that her name alone was shown above it as the depositor. Since es-toppel bars truth to the contrary, the party asserting it must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference and nothing can be supplied by intendment. Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532 (1974). We cannot say that there was a clear preponderance of evidence to establish estoppel. Appellants, in making their argument on estoppel, make much of the fact that after having first deposited this money in a savings account in her own name, Mrs. Clements, on February 24, 1972, deposited it in a joint account with her son, Melvin L. Huffman, and that appellee bank assigned to it the same account number previously assigned to the joint account with appellants. Appellants say that this amounted to a redeposit in the original account. We cannot attach such significance to this circumstance.
IV
In view of what we have said, we find no basis for the reformation of the passbook sought by appellants.
The decree is affirmed.
Cf. Speasl v. National Bank of Decatur, 37 Ill. App. 2d 384, 186 N.E. 2d 84 (1962). | [
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Carleton Harris, Chief Justice.
The question in this case is whether appellee, a psychologist, can be held liable to appellant for malpractice under the facts hereinafter set out. The facts as set forth in appellant’s complaint are as follows. Mrs. Robbie Chatman was divorced from her husband, appellant herein. Appellant had visitation privileges with the couple’s 2Vi year old son. Mrs. Chatman, partly because of actions of the child, became concerned that her ex-husband had subjected the child to homosexual conduct, and, as a matter of terminating the father’s visiting privileges, sought the aid of appellee in evaluating appellant’s conduct. After talking with Mrs. Chatman and the child, appellee wrote her attorney a letter advising that Mrs. Chatman and her child had been referred to him by Dr. Ben Lowery for the purpose of his providing assistance in determining whether or not the child (Christopher) had been sexually molested by his father, and if so, the future implications for Christopher’s psychosex-ual development. In this letter, Dr. Millis, Jr. went into detail as to comment made to him by Christopher and concluded his letter by stating:
“While it will be the Court’s decision, and not mine, 1 feel that it would not be a good idea to allow Chris to continue to visit his father at all. If it is necessary that visitation rights be continued, I would strongly urge that the presence of a third person, preferably a relative, be in their presence at all times.
“As I mentioned in our telephone conversation of April 10, 1973 I would be willing to testify in Court about my interview or the statements made in the letter above.”
Thereafter, Chatman instituted suit in the Circuit Court of White County, home of Chatman, alleging both defamation of character, and malpractice against appellee. Service was had on appellee at his residence in Jackson County. Millis responded to the complaint with a special appearance and motion to quash asserting that venue in White County was improper in that appellee was neither a citizen not resident of White County, and further, was not served in White County.
On hearing, the court held no action for malpractice exists in this state against a psychologist; that even if such an action were permitted in this jurisdiction, there would have to be a doctor - patient relationship or some similar relationship between the parties, and that the complaint in the instant litigation alleged, and counsel had admitted, that Chatman had never been examined by Millis, and in fact, was not even known to the doctor; accordingly, there could be no action for malpractice. The court then found:
“Since there is no cause of action for malpractice the only cause of action left is defamation of character the proper venue of which is not in White County the motion to quash the service of summons upon the defendant should be granted.”
Appellant admits after the holding of the court that there was a iack of relationship between the parties to support the malpractice action, the complaint was correctly dismissed because of improper venue on the remaining count of defamation.
It is not necessary, in determining this litigation, to pass on the question of whether there is a cause of action in Arkansas for malpractice available against a psychological examiner or psychologist, since we are of the view that, even though such a cause of action exists, the allegations of appellant’s complaint do not state a cause of action.
We do not flatly state that a cause for malpractice must be predicated upon a contractual agreement between a doctor (psychologist) and patient, but we do say that a doctor-patient relationship must exist, i.e., there must be a duty, asa doctor, owed from the practitioner to the patient. Under the allegations before us, Millis made no examination of Chat-man; in fact, he did not even know Chatman, and had never seen him. Appellant was not a patient of Millis, and the diagnosis reached was not for the benefit of Chatman. Even if the findings of the psychologist were negligently made, Chat-man did not rely upon this diagnosis to his detriment.
Of course, all persons owe a duty to refrain from defaming others, but this is simply a duty that all citizens have toward each other, and has nothing to do with a doctor-patient relationship. After all, Chatman was not damaged by the allegedly negligent diagnosis — he was damaged by the alleged defamation. An example given by appellee appears pertinent to illustrate the point. Let us assume that a physician is engaged in lighthearted pleasure at a large cocktail party. Assume further that this physician openly refers to a non-patient individual, and by name, refers to him as a homosexual. Certainly, under these circumstances, the physician might be found to have slandered that person’s character, and, if so found, held to be answerable to that person for damages sustained. However, the fact that the speaker happened to be a physician does not mean that what was said constituted malpractice.
Concisely stated, we simply reiterate that under the facts alleged, appellee owed no duty, as a doctor, to appellant, and this duty must be in existence before appellant can recover because of negligence, constituting malpractice.
Since we agree that, under the allegations, no action for malpractice exists, and it being admitted that the complaint was correctly dismissed because of improper venue on the defamation count, the judgment quashing the service is affirmed.
It is so ordered.
Jones, J., concurs.
Brown and Fogleman, JJ., dissent. | [
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Lyle Brown, Justice.
The trial court awarded $7,000 to appellee for the death of her husband. The award was based on group insurance coverage issued by appellant. The sole issue was whether the insurance covered death suffered while the deceased, James C. Humphreys, was on the job. The appellant contends that only non-occupational death was covered.
The Holland Company, employer, made application to appelant for group coverage on its employees. Policy GC-1788 was issued on the basis of Holland’s application for nonoccupational death and dismemberment. The maximum coverage was $7,000. Appellant explains that no coverage was provided for occupational death since that loss was covered by workmen’s compensation insurance and the nonoccupational benefit carried a much lower rate. Mr. Humphreys was killed in an on-the-job accident when a hydraulic drill press exploded. The appellee, widow, filed claim under the policy for $7,000 and the company denied liability because death resulted from Mr. Humphreys’ employment.
Among other insurance requested, Holland’s application contained this recital:
“(5) COVERAGE DESIRED:
XX Accidental Death & Dismemberment Benefits”
Holland then executed Schedule of Benefits (A), Accidental Death and Dismemberment Benefits. That application had this recitation: “AD&D Benefits for Insured shall be XX Non-Occupational”
Finally, the application states: “It is understood that this application and each of the applicable Schedules indicated in (5) above shall be attached to and become a part of the Policy or Policies issued by the Company.”
The application was attached to the master policy. The policy provides:
“LIMITATIONS. The Insurance with respect to Accidental Death and Dismemberment Benefits does not cover loss caused or contributed to by:
(E) any act or thing pertaining to any occupation or employment for wage or profit if only non-occupational coverage is to be provided as specified in the Schedule of Benefits for Accidental Death and Dismemberment Benefits.”
The certificate of insurance issued by appellant and possessed by James C. Humphreys at the time of his death was dated March 1, 1972 and the schedule of benefits included “Accidental Death and Dismemberment $7,000”. The certificate recites that the schedule of benefits was “subject to the provisions and limitations of the master policy” issued to Holland Company. Then it provided that “This individual Certificate is furnished in accordance with and subject to the terms of said group policies and is merely evidence of insurance provided under said group policies . . . .” The schedule of benefits contained on the certificate has this wording:
“LIMITATIONS. The Insurance with respect to Accidental Death and Dismemberment Benefits does not cover loss caused or contributed to by:
(E) any act or thing pertaining to any occupation or employment for wage or profit if only non-occupational coverage is to be provided as specified in the Schedule of Benefits. ”
Based on the great weight of authority the appellee cannot prevail in this case.
It is generally held that an employee’s contract of insurance under the group plan consists of the policy issued by the insurer to the employer, the individual certificate delivered by the employer to the employee being no part of such contract, but only an instrument reciting the employee’s right to protection under the terms of the group policy so long as there is a compliance with the conditions of the policy. 44 Am. Jur. 2d, Insurance § 1870.
# * #
The insured may have actual knowledge of the contents of the master policy, but in any case he will be deemed to have constructive knowledge of its provisions either on the theory that the employer is his agent, and that knowledge of the employer of the terms of the master policy is to be imputed to the employee, or because the certificate which the employee receives expressly states that it is subject to the terms of the master policy, which are incorporated into the certificate by reference. Couch on Insurance, Group Insurance § 82:13.
We have held that the employer is the employee’s agent in connection with a group insurance policy. Metropolitan Life Insurance Company v. Thompson, 203 Ark. 1103, 160 S.W. 2d 852 (1942)
Appleman agrees with the text authorities we have cited:
In construing the rights of any insured, the court will look first to the terms of the master policy. The rights and obligations of all parties are measured by the terms of the master policy, it being considered that an employee accepting the group insurance contract made between the employer and insurer is bound by the terms thereof. * <! * * Some courts have held that if there is a conflict between the terms of the certificate and the master policy that the certificate will control, although the majority of courts have, partly upon the basis of the contractual expressions, reached a contrary conclusion. 13 Appleman Ins. L. & P., § 7528.
The certificate in the case at bar does not contain, as does the master policy, the statement that the insurance covers only non-occupational hazards; however, as we have pointed out, the certificate issued to the employee recites that the certificate is subject to the terms and limitations of the master policy; recites that the certificate is mere evidence of insurance provided by the master policy; and refers to the master policy’s provision for non-occupational coverage. Therefore, those expressions in the certificate were sufficient to make the certificate subject to the terms and conditions of the master policy. On the question of conflict between the master policy and the certificate see General American Life Insurance Co. v. Yarbrough, 360 F. 2d 562 (1966). Yarbrough is an Arkansas case and the decision was based on the circuit court’s interpretation of Arkansas law.
Reversed and dismissed.
Harris, C.J., not participating
Holt, J., not participating | [
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W.H. “DUB” ARNOLD, Chief Justice.
Appellant Jim Parsappeals tice. granting of summary judgment ousting him from his position on the Board of Trustees of Northwest Arkansas Community College. We reverse and remand the case.
Appellant was elected in the 1996 general election to position 3 on the Board of Trustees of Northwest Arkansas Community College (hereinafter referred to as the “Board”) for a six-year term. Parsons was elected “at large” by the combined electorate of the College’s district, that being the voters of the Bentonville school district and of the Rogers school district. Parsons lived within the Rogers school district at the time of his election.
Act 1258 of 1997, now codified at Ark. Code Ann. § 6-61-530 (Supp. 1999), was enacted subsequent to the 1996 general election. This Act authorized the Board to apportion its positions within the Bentonville and Rogers school districts according to population, “[beginning with the 1998 election ... so long as all board members are residents and qualified electors of the community college district and the school district....” (Emphasis added.)
On May 26, 1998, the Board approved a motion to apportion six of the nine Board positions to the Rogers school district and three positions to the Bentonville school district. Two of the then current Board members lived in Bentonville; the remaining seven members lived in Rogers. Three of the Rogers positions were up for election in 1998. Parsons voted in favor of the apportionment.
On June 23, 1998, it was reported that the member who occupied position 5 and who lived in Rogers would give up his seat so that it could be filled by someone from the Bentonville district in the upcoming election. On August 25, 1998, the Board approved a motion which apportioned positions 1, 5, and 9 to Bentonville and positions 2, 3, 4, 6, 7, and 8 to Rogers. Parsons, who held position 3, voted against this motion.
Parsons had moved to Bella Vista, which is within the Benton-ville school district, on or about August 9, 1998, although the date of the actual change of residency is unclear from the record. At any rate, Parsons did not inform the Board of his new address prior to August 25, 1998. After Parsons refused to resign from his position on the Board, the State brought an action for declaratory judgment and petition for ouster pursuant to Ark. Code Ann. § 16-118-104 (1987) or for a writ of quo warranto.
After a hearing on the State’s motion for summary judgment, the relief requested by the State was granted. The trial court found that Parsons had “disenfranchised” himself by moving his residence from Rogers to Bella Vista (Bentonville district) and was no longer qualified to serve under Ark. Code Ann. § 6-61-530. Rather than interpreting the Act as requiring any apportionment to fit the residency scheme of the presently seated Board members, as the “so long as” language clearly required, the trial court found the Act to be ambiguous, but nevertheless interpreted the Act as requiring Parsons to be a resident of the school district to which his position had been apportioned in the newly created apportionment scheme, even though he was elected to a six-year term prior to the effective date of the Act. Parsons had argued that Act 771 of 1999 amended Ark. Code Ann. § 6-61-530 to make the apportionment process inapplicable to members elected prior to the 1998 election. The trial court found that Act 771 of 1999 did not apply to appellant.
For his appeal, appellant contends that the trial court erred in granting summary judgment in favor of the State and seeks reversal as a result; he asserts the following in support of his position:
1) That Act 1258 of 1997 does not apply to a member of the Board of Trustees of Northwest Arkansas Community College who was elected on an “at large” basis in 1996 to a six-year term of office.
2) That Act 771 of 1999 amends Ark. Code Ann. § 6-61-530 to exclude members of the Board of Trustees of Northwest Arkansas Community College who were elected to their positions prior to the 1998 general election from the operation of Act 1258 of 1997.
We agree with appellant that the trial court erred in granting summary judgment in favor of the State and hereby reverse the trial court’s ruling.
I. Standard of Review
This court recently stated its standard of review for orders of summary judgment:
The law is well settled that 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, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a hght most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).
II. Propriety of Summary Judgment
The trial court found that no genuine dispute as to any material fact existed. Inconsistent with this finding, however, the court noted in Footnote 1 of its order granting summary judgment, that the date of the actual change of appellant’s residence was “unclear from the record.” We hold that the effective date of appellant’s residency change is a central issue in this case; as such, if that date is “unclear from the record,” then a genuine issue of material fact obviously existed at the time the trial court considered the State’s motion for summary judgment.
Although appellant did not raise this issue on appeal, we conclude that it must not be overlooked, as the trial court’s inconsistent finding amounts to error as a matter of law. Accordingly, we must hold that the trial court’s ruling granting said motion was in error and must be reversed. Because we have determined that the trial court’s order granting summary judgment must be reversed due to the existence of an unanswered material fact, it is unnecessary for us to reach the appellant’s other points on appeal.
Reversed and remanded.
Glaze and Brown, JJ., dissent.
ÍMBER, J„ concurs. | [
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John A. Fogleman, Justice.
On this appeal the granting of a new trial after a successful defense of a wrongful death action is brought into question. Review here is complicated by our inability to ascertain the ground or grounds upon which the motion was granted. Ordinarily, the trial court has a wide latitude of discretion in granting or refusing a new trial. Security Insurance Co. v. Owen, 255 Ark. 526, 501 S.W. 2d 229; Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S.W. 2d 724. We do not reverse such an order in the absence of an abuse of that discretion that is manifest or clearly shown. Security Insurance Co. v. Owen, supra; Bittle v. Smith, 254 Ark. 123, 491 S.W. 2d 815. Furthermore, the showing of abuse of discretion must be much stronger where, as here, the appeal comes from an order granting a new trial than when a denial is involved. Security Insurance Co. v. Owen, supra. We have said that when an order granting a new trial is expressed in general terms without a specification of grounds, it must be affirmed if it can be supported on any ground alleged in the motion. Missouri Pacific Railroad Co. v. Clark, 246 Ark. 824, 440 S.W. 2d 198. Hall v. W. E. Cox & Sons, 202 Ark. 909, 154 S.W. 2d 19. The motion specified six grounds. The order granting the new trial simply recited that “it is the opinion of this court that justice would best be served by the granting of a new trial. . . ” Although we are committed to a review of all grounds of a motion for new trial in such a case to ascertain whether it can be sustained on any grounds, appellee argues that the granting of the motion could be justified on any one of three grounds. No reliance is placed upon any of the other grounds. Those three are:
I. The trial court erred in refusing a jury instruction requested by appellee which would have permitted him to recover for breach of warranty.
II. The trial court erred in refusing to give a jury instruction requested by appellee which would have permitted him to recover upon the basis of strict liability.
III. The verdict was not sustained by substantial evidence.
We are confident that appellee would present any other ground upon which he felt that the order could possibly be sustained. Consequently we will review only those grounds which appellee feels are justification for granting this motion. As we do, we must also consider that it is an abuse of discretion to set aside a jury verdict without reasonable cause. Ellsworth Brothers Truck Lines v. Mayes, supra.
Thomas Allen Tate brought this action against appellant General Motors Corporation and Scudder Chevrolet, Inc. in his capacity as personal representative of his deceased wife, Marcelyn C. Tate in his own right. He sought damages for wrongful death on behalf of the estate and next of kin and for his own personal injuries. He alleged causes of action against General Motors based upon strict liability, breach of warranty and negligence. His complaint against Scudder Chevrolet, Inc., the automobile dealer,was based upon breach of warranty and negligence.
Before their marriage, Tate’s wife purchased a 1966 Model Chevrolet Caprice from Chalmers Precise, Jr. about December 18, 1969. Title was placed in Tate and his wife after their marriage. Precise had purchased the automobile, manufactured by General Motors, from Scudder Chevrolet, Inc. on December 13, 1965. Marcelyn C. Tate was fatally injured and Thomas A. Tate injured, on June 2, 1972, when the vehicle, being driven by Tate, went out of control and crashed into a highway sign on Interstate Highway 30 in Saline County. Appellee alleged that the injuries were attributable to an unusual and uncontrolled acceleration of the automobile resulting from a rotation of the vehicle’s engine caused by failure of defective engine mounts. Appellant pleaded the statute of limitations and alleged that Tate’s own negligence was1 the proximate cause of the injuries.
At the conclusion of the evidence on behalf of appellee, the dealer’s motion for a directed verdict was granted. The grounds for the motion were that there was no evidence of negligence on its part and that the cause of action on breach of warranty was barred by the statute of limitations. Appellant’s motion upon the same grounds was denied. Appellant’s motion for a directed verdict at the conclusion of all the evidence was likewise denied.
The case went to the jury upon the question of negligence only, the circuit judge having refused to submit the issues of breach of warranty and strict liability by refusing instructions requested by appellee on those issues. A unanimous verdict for appellant was returned. After a hearing on appellee’s timely motion for new trial, the circuit judge took the motion under advisement. Later, he advised the parties of his opinion by letter. Thereafter, he denied appellant’s motion for a specification of the grounds for granting the motion and entered an order setting aside the jury verdict and granting a new trial upon the vague and general grounds hereinabove set out. By way of clarification the court entered an order stating that the granting of the new trial did not apply to Scudder, but that the directed verdict in its favor should stand. Appellant’s motion for a specification of the grounds upon which the motion for new trial was granted was denied.
Turning now to the three potential bases for the circuit judge’s action, we will discuss them in order.
I.
Appellant has contended throughout that any cause of action appellee might have had was barred by the statute of limitations. On the other hand, appellee contends that the cause of action was not barred and that the statute of limitations did not begin to run until the breach was discovered. The parties agree that appellee’s allegations and proof constituted the assertion of a cause of action for breach of an implied warranty. They also agree that this cause of action accrues when the breach occurs and the breach occurs when tender of delivery is made. See Ark. Stat. Ann. § 85-2- 725 (Add. 1961). The tender of delivery, insofar as appellant is concerned, was on the date of the sale by the dealer, Scudder Chevrolet Co., to Precise, i.e., December 13, 1965. This action was brought on December 21, 1972. It is evident that more than five years intervened. The action was clearly barred by the failure to bring the action within four years after the cause of action accrued as required by Ark. Stat. Ann. § 85-2-725, unless the action fell within the exception stated in Ark. Stat. Ann. § 85-2-725 (2). That subsection states that a breach of warranty occurs when tender of delivery is made except when a “warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.” It does not seem logical that the Code intended that an implied warranty be explicitly extended to future performance. The words “explicit” and “implied” are contradictory. “Explicit” has been defined as meaning express, not implied. Webster’s Third New International Dictionary; Webster’s New International Dictionary, Second Edition; The Random House Dictionary of the English Language, Unabridged Edition. The exception relied upon by appellee is immediately preceded by the statement that the cause of action accrues when the breach occurs, regardless of lack of knowledge of the breach. It could not have been intended that an implied warranty be an exception, where injury results from a defect in goods, to the general rule. See White - Summers, Handbook on Uniform Commercial Code 341, § 11-8; Anderson Uniform Commercial Code, 2d Ed. 563, § 2-725:24. Other jurisdictions have rejected the contention made by appellee. Ohio - Val Decker Packing Co. v. Corn Products Sales Co. (6 Cir. 1969) 411 F. 2d 850; Everhart v. Rich’s, Inc., 128 Ga. App. 319, 196 S.E. 2d 475 (1973); Constable v. Colonie Truck Co.. 37 A.D. 2d 1011; 325 N.Y.S. 2d 601 (1971); Moody v. Sears, Roebuck & Co. 344 F. Supp. 844 (D.C., Ga. 1971). See also, Mendel v. Pittsburgh Plate Class Co., 291 N.Y.S. 2d 94 (1967). This conclusion is also consistent with pre-code law in Arkansas. Peterson v. Brown, 216 Ark. 709, 227 S.W. 2d 142. We do not see how the statute can be construed to bring this action within the exception to the applicable four year statute of limitations, so appellee’s cause of action was clearly barred. In spite of the circuit judge’s concern about his failure to submit the cause of action on breach of warranty to the jury, expressed when he took the motion for new trial under advisement, a new trial was not granted against the automobile dealer. It seems to us that the same evidence and the same warranty applied to both the dealer and the manufacturer. Be that as it may, the failure to give the requested instruction could not have afforded a basis for granting a new trial.
II
Appellee contends that Act 111 of 1973 [Ark. Stat. Ann. § 85-2-318.2 (Supp. 1973)] providing for strict liability was applicable to this case in spite of the fact that the cause of action accrued and the action was commenced prior to the effective date of the act. We had steadfastly refused to adopt the doctrine of strict liability in cases such as this by judicial action. Appellee contends that the legislative act providing for strict liability was intended to have retrospective effect as shown by a clause stating that it is remedial in nature. Furthermore, says appellee, the act did not create new rights but merely gave an additional remedy. We are unable to accept this argument. Strict liability is a new theory of recovery in a case of this sort. It is a liability imposed by statute. It confers upon a plaintiff the right to recover damages upon a theory and under circumstances where a cause of action did not formerly exist. See Frumer & Friedman, Products Liability, 3-237, § 16A [1]; Restatement of Forts, 2d Ed., § 402A Comment m, Prosser, The Assault upon the Citadel (Strict Liability to the Consumer) 69 Yale Law Journal 1099, 1134 (1960); Annot, Products Liability, 13 A.L.R. 3d 1057, 1074 (1967); Greenman v. Yuba Power Products, Inc., 27 Cal. Rptr. 697, 377 P. 2d 897, 901 (1963). Before the adoption of the act, appellee could have only recovered by proving negligence or a breach of warranty. After the passage of the act, for one in appellee’s position, neither negligence nor breach of warranty would be an essential ingredient of the cause of action on strict liability. Thus a new cause of action exists and a new liability is imposed. Any doubt about the legislative intent in this regard may be resolved by resort to the title of the act which reads, “An Act to Impose Liability for Injury and Damages Done in Certain Circumstances by Defective Products, and for Other Pur poses.” The mere statement that the act is remedial does not overcome the presumption against retrospective effect.
Ill
Appellee’s action for negligence was based upon an allegation that the motor vehicle he was driving and in which his wife was a passenger at the time of their injuries was equipped with engine mounts that were defectively designed in such a way that upon failure of an engine mount the engine was allowed to rotate or move within the engine compartment, thereby causing the engine to speed up, or preventing it from slowing down, because of interference with the throttle linkage system. In this respect, we must review the testimony of Tate as to how the accident of June 2, 1972 occurred. It is substantially as follows:
On the Sunday in question he and his wife had planned to go to Hot Springs and sell the car, which then had been driven approximately 66,000 miles and for which he had previously received from appellant a recall notice for correction of a possible safety hazard which would exist if separation of an engine mount should occur on the vehicle. The Tates had had no problem or difficulty with the automobile. It was in excellent condition. They proceeded normally along the highway until they reached the point where the highway branches, with the Interstate highway going to Malvern and another fork otherwise designated going to Hot Springs. Tate was driving at approximately 70 miles per hour, his customary speed on the Interstate highway. He took his foot off the accelerator in order to decrease the speed of the vehicle so that he could make a turn to the right to the Hot Springs highway. He removed his foot completely from the accelerator and the speed of the vehicle decreased normally, as he would expect, for one or two seconds. It then seemed as if the vehicle went into passing gear, jerking forward. The speed of the car then accelerated and Tate tried to put his foot on the brake. He heard a roaring noise as if he had the accelerator pressed all the way down with his foot on the brake. He believed that he put both feet on the brake trying to stop the vehicle. The steering wheel locked, as if one had turned the key on a later model car to the “off” position, so that Tate could not turn it. Tate saw a roadside sign looming up in front of him but did not remember hitting it. The vehicle struck the sign, was severely damaged, Marcelyn Tate was killed and Tate suffered severe injuries. He said that the automobile was equipped with factory air conditioning.
There is no doubt that the left motor mount had failed by fatigue prior to the impact of the automobile with the sign post. The question was whether the fatigue failure of the left motor mount could have been the proximate cause of the accident and damages. All of the witnesses on this point were experts. Two of them were called by appellee and two by appellant. All agreed that a failure of this motor mount could, under certain conditions, permit the engine on this model of Chevrolet to rotate in such a manner as to interfere with the throttle linkage. There are certain factors, however, that clearly show that this could not have happened in this instance. Ellis McCorkle, one of appellee’s experts, testified that when the engine is accelerated, its torque tends to lift it frpm the left mount putting it in tension and putting the right mount into compression. He said that the motor could move out of position so that the accelerator linkage is affected and jammed into full acceleration by pulling the carburetor into full open position and that, if you took your foot off the pedal, it is still in the jammed position, even though the motor would be racing. He theorized that the engine in the Tate vehicle had rotated and locked the accelerator into a high speed position so that if Tate took his foot off the accelerator pedal it didn’t affect the application of the gas to the motor and the motor continued to race. This, of course, is not consistent with Tate’s testimony that when he removed his foot from the throttle, the speed of the vehicle decelerated.
Joe Harris, the other expert called by appellee, was of the opinion that motor mount failure was the cause of the accident, or at least triggered the events which culminated in the accident. He said that apparently when the driver of the Chevrolet asked the car to slow down, did partly, but not totally. He said that something caused the engine to continue to deliver power while the brakes were applied and the only thing that anybody could find on this car that might have been the cause of it was the defective motor mounts. He could not recall whether the car had air conditioning or not, but admitted that an air conditioning unit could introduce some restraint to the engine motion which might limit it somewhat, but he did not think that it was a prime consideration and did not take into consideration whether or not the vehicle had air conditioning when he was making his examination of it. He said that a forward movement of the engine would cause an increased acceleration by pulling the carburetor away from the accelerator, and he thought such was likely in this case, but thought there had been a twisting motion at one point in time. He said that the only time one had any problem with a separated motor mount is in low gear, on a sharp left turn or when driving down the road at 70 miles an hour and hitting a little bump. He recalled a bit of a left turn before the point of the accident (but Tate did not). He said that the road was not perfectly level.
Richard Maiers, an engineer who was employed by General Motors Corporation, testified as an expert. He said that the engine mount phenomenon associated with Chevrolet vehicles is one in which the engine will want to lift off the mount, if the left engine mount should, by reason of fatigue, impact or any other cause, become separated into two individual parts, which had happened at some time. He stated that engine lift could only occur under particular circumstances when the transmission is in first gear but under no circumstances could you have engine lift in anything except when the automobile was in the low gear. In first gear, by accelerating from a stop with the throttle all the way to the floor, the shift of first gear will occur at about 48 miles per hour. Engine lift could be maintained only up until the vehicle reached a speed of 40 miles per hour at which time the engine would fall back due to its own weight onto the left engine mount. One of the secondary effects of the separation of the left engine mount when there was significant engine rotation to the right could result in holding the throttle rod in the position the driver put it in under the proper conditions. However, he said that this will not cause increased accelera tion. The effect, according to him, is merely to hold the throttle in the position it is already in by pushing hard enough on its side. He said that this occurs in low gear only. This, he said, had no effect on the steering system of the vehicle. This witness testified that the air conditioner compressor support bracket on this automobile limited the amount of engine movement in the automobile. The amount of engine lift or displacement permitted by the air conditioner is not sufficient to cause any of the secondary effects such as would affect the throttle or brakes and, with the air conditioning unit, the Tate vehicle could not have had an acceleration problem at any speed due to a separated engine mount, according to this witness.
Henry H. Hicks, Jr., a teacher in the mechanical engineering department of the University of Arkansas also testified that the stuck throttle phenomenon could not be possible on the Tate vehicle with the air conditioner in place.
No one attempted to contradict this testimony. Of course, one of the witnesses was an employee of appellant and the other employed for the purposes of this trial. Their testimony went to the matter of physical impossibility of the accident happening as Tate related being the result of the defective left motor mount. If this were not the case, surely the experts who testified for appellee could have shown that it was not.
There was really no reason why the testimony of these witnesses should be totally discarded. In a long line of cases we have said that when the testimony of one employed by a defendant in an action is not substantially contradicted by any testimony, fact or circumstance, and does not seem unreasonable or improbable, the jury cannot arbitrarily or capriciously disregard his testimony, and we have reversed judgments where this was done, and, where the case was fully developed, have dismissed the action. See St. Louis, San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S.W. 2d 611; St. Louis, San Francisco Ry. v. Cole, 181 Ark. 780, 27 S.W. 2d 992; Missouri Pacific Railroad Co. v. Hancock, 195 Ark. 414, 113 S.W. 2d 489; East Texas Motor Freight Lines, Inc. et al v. Dennis et al, 214 Ark. 87, 215 S.W. 2d 145. In such a case we have held that where there is not sufficient evidence upon which to predicate a finding of negligence without arbitrarily disregarding testimony of such witnesses in favor of a theory equally hypothetical, a judgment against a defendant should be reversed and dismissed. St. Louis, San Francisco Ry. Co. v. Pace, 193 Ark. 484, 101 S.W. 2d 447; Missouri Pacific Railroad Co. v. Ross, 194 Ark. 877, 109 S.W. 2d 1246. Where it is impossible for a jury to have harmonized discrepancies in testimony without eliminating impossibilities and have substantial evidence upon which to predicate a verdict, this court will reverse a judgment on such a verdict. Missouri Pacific Railroad Co. v. Hancock, supra; See also Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S.W. 2d 724.
Since the testimony of Harris and Hicks was unaffected by conflicting inferences which might be drawn from it, and was not improbable, extraordinary or surprising in nature, there was no reason for denying the jury’s finding of verity dictated by it. Knighton v. International Paper Co., 246 Ark. 523, 438 S.W. 2d 721. There is a presumption that the trial court will not set aside a verdict that is not against the preponderance of the evidence when there is substantial conflict in the evidence, but that presumption does not apply in the absence of such a conflict. It is clear to us that the air conditioning unit was in place on the Tate vehicle and that the motor could not have rotated sufficiently to have interfered with the throttle linkage. It is clear that the decrease in speed of the vehicle when Tate took his foot off the accelerator is a clear indication that the rotation of the motor did not interfere with the throttle linkage.
It is also significant that McCorkle’s testimony is not consistent with Tate’s version of the accident. Under these circumstances we have concluded that it was not possible that this accident could have resulted from the failure of the left motor mount of the Tate vehicle. Thus there was no substantial evidence upon which the jury could have based a verdict against appellant. Since there was no substantial conflict in the evidence on these critical points the trial court could not have properly granted a new trial because the verdict was against the preponderance of the evidence.
In our consideration of this case, we have reviewed other such cases wherein the trial court has granted a motion for new trial without specifying the grounds for its decision. These cases always present perplexing problems in appellate review, not only to the appellate court in exploring every possible facet of the case to determine whether there has been an abuse of the trial court’s discretion, but to attorneys on both sides who have to brief the case. We have, in this case, assumed, properly we think, that the attorneys for appellee would, beyond doubt, present any ground upon which the action could be sustained. Even this approach is far from satisfactory, and only tends to add to the evergrowing burden of this court. Consequently, we are promulgating a rule governing the granting of motions for new trial in the future, which will tend to eliminate this problem and thereby improve the administration of justice. It is generally conceded that, in the interest of good practice and the proper dispatch of judicial business, courts should specify in orders granting new trials, with particularity the grounds on which the order is made. 58 Am. Jur. 2d 437, New Trial § 214; 66 C.J.S. 533, §210 (3) (a). The Appellate Court of Indiana met the problem headon when it was first confronted with it. See Rife v. Karns, 133 Ind. App. 226, 181 N.E. 2d 239. See also Pensacola Chrysler-Plymouth, Inc. v. Costa, 195 S. 2d 250 (Fla. 1967); Morton v. Staples, 141 S. 2d 806 (Fla. App. 1962); Simmons v. Koeteewaw, 5 Wash. App. 572, 489 P. 2d 364 (1971); Mulka v. Keyes, 41 Wash. 427, 249 P. 2d 972 (1952); Brooks v. De La Cruz, 12 Ariz. App. 591, 473 P. 2d 793 (1970); Heaton v. Waters, 8 Ariz. App. 256, 455 P. 2d 458 (1968); Rule 59, Federal Rules of Civil Procedure.
The rule we are promulgating by per curiam order is based to some extent upon the action of other courts.
Since we have found no ground which could have supported the granting of a new trial, we reverse the order and dismiss the action. | [
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W.H. “Dub” Arnold, Chief Justice.
This case involves ustice. defendant has a right to have his competency to proceed determined prior to adjudication and, further, whether a juvenile has a right to assert the defense of insanity. We hold that a juvenile does have a due process right to have his competency determined prior to adjudication and, as such, reverse the trial court on this point. However, we hold that neither due process nor equal protection affords a juvenile the right to an insanity defense and, therefore, affirm the trial court on these issues.
On March 24, 1998, appellant Andrew Golden and Mitchell Johnson opened fire on their classmates at Westside Elementary School in Jonesboro, Arkansas. One teacher and four students were killed, and one teacher and nine students were wounded. At the time of the shootings, appellant Andrew Golden was eleven years old.
On March 25, 1998, a petition was filed, charging Golden and Mitchell with five counts of capital murder and ten counts of first-degree battery. At the probable cause hearing held on March 25, 1998, Golden’s attorney informed the court that he intended to raise the affirmative defense of insanity and would also be raising issues concerning Golden’s competency to proceed to trial. A separate hearing on these issues was later held.
At the hearing on these issues, Golden’s attorney argued that if the court denied Golden the right to argue lack of competency and insanity, it would violate Golden’s constitutional rights of due process and equal protection. The trial court rejected these arguments, finding that based upon the nature of juvenile proceedings, Golden was not entitled to raise the issue of whether he was competent to stand trial or to assert the insanity defense. The court reasoned that the safeguards present in juvenile proceedings allow a court to consider any alleged mental disease or defect during the disposition phase, when the court is determining the appropriate placement for the juvenile.
Following the issuance of the trial court’s order, Golden’s attorney informed the court that he wished to proceed to the adjudication hearing in order to preserve Golden’s right to argue the competency and insanity issues on appeal. An adjudication hearing was subsequently held in which the trial court adjudicated Golden guilty and sentenced him to an indeterminate period of time in the Division of Youth Services Training School. The court also provided that if Golden was released before the age of twenty-one, he would remain in a juvenile detention center for up to ninety days.
For his points on appeal, appellant asserts the following:
A. that the trial court violated his due-process rights by refusing to determine his competency, or fitness to proceed;
B. that the trial court violated his due-process rights by refusing to allow him to present an insanity defense;
C. that the trial court violated his equal-protection rights by refusing to determine whether he was competent; and
D. that the trial court violated his equal-protection rights by refusing to allow him to present an insanity defense.
As stated above, we reverse in part and affirm in part. We agree with appellant only as to his first point on appeal and hold that a juvenile does have a due process right to have his competency determined prior to adjudication; as such, we reverse the trial court on this point. Having reversed the case on due process grounds regarding competency, we decline to address appellant’s equal-protection argument in regard to the issue of competency. We affirm the trial court as to appellant’s other points on appeal regarding the insanity defense.
I. Due Process Rights
Appellant asserts that the trial court violated his due-process rights by refusing to determine his competency, or fitness to proceed, and that the trial court violated his due-process rights by refusing to allow him to present an insanity defense. We agree in regard to competency and disagree in regard to the insanity defense.
A. Competency to Stand Trial
The law is clear that defendants in criminal cases have a fundamental right not to stand trial while incompetent. See, e.g., Cooper v. Oklahoma, 517 U.S. 348 (1996); Drope v. Missouri, 420 U.S. 162 (1975). This right protects criminal defendants’ fundamental interests in their own liberty by ensuring that they are able to participate in their defense in an effort to avoid conviction and incarceration. In regard to juvenile proceedings, while the Arkansas Juvenile Code seems to presume that a defendant being tried in juvenile court is incompetent to some degree, particularly one who is under the age of fourteen, there was no statutory provision for juveniles at the time of appellant’s hearing affording juveniles the same fundamental liberty interests as adults where the issue of competency is concerned.
Although this issue is one of first impression in Arkansas, the United States Supreme Court held, in the case of In re Gault, 387 U.S. 1 (1967), that while proceedings in a juvenile court need not conform with all the requirements of a criminal trial, primarily because of the special nature of the proceedings, essential requirements of due process and fair treatment must be met. The Court, in Gault, specifically acknowledged a juvenile’s right to constitutionally adequate notice, the right against self-incrimination, and the right to cross-examine witnesses; further, the Court explicitly heldthat a juvenile must be afforded the right to counsel during these proceedings. Id. at 41. Logically, this right to counsel means little if the juvenile is unaware of the proceedings or unable to communicate with counsel due to a psychological or developmental disability. See In the matter of Carey, 241 Mich. App. 222, 615 N.W.2d 724 (2000). Therefore, applying Gault, we hold that a juvenile must be allowed to assert incompetency and have his competency determined prior to adjudication. As such, we reverse the trial court on this point.
B. Insanity Defense
Regarding the insanity defense, this Court held in the case of K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998), that insanity is not a defense in juvenile proceedings because there is no statutory authority or case law for the defense. IN K.M., WE RELIED UPON THE U.S. Supreme Court holding in Medina v. California, 505 U.S. 437 (1992), that there is no constitutional right to an INSANITY DEFENSE; THEREFORE, IF ONE IS NOT PROVIDED FOR BY STATUTE, THEN A DEFENDANT MAY NOT ASSERT THE DEFENSE.
Clearly, there was no statutory provision in effect in Arkansas at the time of appellant’s hearing conferring upon juveniles the right to assert an insanity defense. As such, applying our holding in K.M. v. State, we hold that appellant’s due process rights were not violated by the trial court’s preclusion from allowing him to assert the insanity defense. Therefore, we affirm the trial court on this point.
II. Equal Protection Rights
Appellant asserts that the trial court violated his equal-protection rights by refusing to determine whether he was competent to proceed and that the trial court violated his equal-protection rights by refusing to allow him to present an insanity defense. We decline to address the competency argument; further, we disagree with appellant that his equal-protection rights were violated in regard to the insanity defense.
A. Competency to Stand Trial
Because this case is being reversed on due-process competency grounds, it is unnecessary in this case to address the competency issue with regard to equal protection.
B. Insanity Defense
As discussed above, this Court has already decided the issue of whether juveniles may assert the defense of insanity in K.M. v. State, supra. We cited, in support of our decision that juveniles could not assert said defense, the U.S. Supreme Court case of Medina v. California, supra., which held that there is no constitutional right to an insanity defense, so if one is not provided for by statute or case law, then a defendant may not assert it. However, this Court, in K.M., refused to address the issue under an equal protection analysis because it was not raised below. Therefore, this equal-protection argument is one of first impression for this Court.
The appellant contends that no rational basis exists for affording the insanity defense to adult criminal defendants in circuit court while not providing said defense to juvenile defendants; he contends that this undoubtedly amounts to a violation of equal protection. We disagree. Due to the very nature of juvenile proceedings and the difference in purpose of a juvenile proceeding — that being rehabilitative rather than punitive — coupled with the fact that juveniles are neither provided a trial by jury nor various other rights afforded to adult criminal defendants in circuit court, a rational basis clearly exists for affording adult criminal defendants in circuit court the right (by statute, not constitutionally), to assert the defense of insanity while not affording the same right to juveniles.
Further, the juvenile code provides a number of alternatives for the judge to consider and recommend in regard to disposition, including treatment, commitment, transfer of legal custody, and other alternatives regarding placement in a community-based program as opposed to a youth services center. See Ark. Code Ann. § 9-27-330 (Repl. 1998). In adult criminal circuit court, the trial judge has no options regarding disposition where a defendant suffering from a mental disease or defect is concerned. In circuit court, the defendant, if proven to be insane, is simply locked away in the State mental hospital until he becomes sane, at which time he will be tried.
Clearly, a rational basis exists for affording juvenile defendants less procedural rights than those charged in criminal circuit court, primarily because of the special nature of the proceedings. After all, criminal defendants in circuit court could potentially face life imprisonment, or even a death sentence, unlike those charged in juvenile court. For these reasons, we affirm the trial court on this point, as well.
Reversed and remanded in part; affirmed in part.
Smith, J., dissenting.
LAVENSKI R. SMITH, Justice,
dissenting. I concur in the majority’s opinion ice, points save the issue of Golden’s competency to stand trial. I would affirm the trial court’s denial of a competency hearing. I do so because the distinctions that exist between juvenile court proceedings and adult criminal proceedings are substantial and are rationally based upon the differences between adults and children. Although according a juvenile the right to a competency hearing appears equitable, it is, I submit, unwise. It reflects the continued erosion of all distinction between juvenile court and adult criminal courts. This erosion could ultimately lead to the irrelevance of juvenile codes in general.
A juvenile does not have a fundamental due process right to not be deprived of their liberty as a result of a hearing during which they were incompetent. The State’s ’parens patriae’ interest, under proper circumstances subordinates the child’s liberty interest. Schall v. Martin, 467 U.S. 253, 265 (1984). A juvenile has a liberty interest, which the U.S. Supreme Court describes as “substantial,” but of which they also state that “that interest must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody.” Schall, 467 U.S. at 265. The U.S. Supreme Court in this same opinion also states, “Children by definition are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its role as parens patraie.” Id.
The distinctions existing between juveniles and adults are recognized by the legislature in Ark. Code Ann. § 9-27-102, which states, “The General Assembly recognizes that children are defenseless and that there is no greater moral obligation upon the General Assembly than to provide for the protection of our children and that our child welfare system needs to be strengthened by establishing a clear policy of the state that the best interests of the children must be paramount and shall have precedence at every stage of juvenile court proceedings....” This is consistent with the parens patriae interest as discussed in the U.S. Supreme Court cases. Implicit in the General Assembly’s statement is the recognition that a juvenile will not be competent in the sense an adult would be, because they are assumed not to have the capacity to take care of themselves. In fact, the juvenile proceedings are designed to accomplish its ends without regard to the juvenile’s competence because its absence is presumed.
As referenced by the majority, “[T]here is no doubt that the Due Process Clause is applicable in juvenile proceedings.” Schall, 467 U.S. at 263. The U.S. Supreme Court went on to note the issue in the application of the Due Process Clause “is to ascertain the precise impact of the due process clause requirement upon such proceedings.” In re Gault, 387 U.S. 1, 13-14 (1967), cited in Schall, 467 U.S. at 263. The Supreme Court then went on to note it had decided in the past that the Due Process Clause required application of certain constitutional rights enjoyed by adults and did apply to minors. The court listed the rights, including notice of charges, right to counsel, privilege against self-incrimination, right of confrontation, and proof beyond a reasonable doubt. Schall,467 U.S. 263. The Supreme Court then notes that the Constitution does not mandate elimination of all differences in the treatment of juveniles. At issue in Schall was whether preventative detention of juveniles, as set out in the New York statute, was “compatible with the ‘fundamental fairness’ required by due process.” Id. “We do not mean...to indicate that the hearing must conform with all of the requirements of a criminal trial or even that of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” In re Gault, 387 U.S. 1, 30 (1966), (citing Kent v. State, 383 U.S. 541, 562 (1966)). The Supreme Court in Schall stated that the inquiry required was two fold: whether the statute served a legitimate State objective, and whether the procedural safeguards are adequate.
Because the U.S. Supreme Court speaks of a “legitimate State objective,” the applicable test is the “rational basis test.” Arkansas Hosp. Ass’n v. Arkansas State Bd of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989). That test is whether there is any rational basis connected to a legitimate State purpose. The statute may not be arbitrary or capricious. Streight v. Ragland Comm’r, 280 Ark. 206, 655 S.W.2d 459 (1980); see also, Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999). I would hold that there is a rational basis for the juvenile code not providing for competency hearings in juvenile cases. Therefore, I respectfully dissent.
Golden’s attorney agreed to stipulate to the facts of the case; however, he did not plead guilty; in other words, he did not stipulate to the intent. He chose to proceed to trial rather than appeal interlocutory from the court’s order regarding the competency and insanity issues.
Although it may not be applied retroactively, it should be noted that when the General Assembly amended the juvenile code in 1999, it added an entire section on competency, found at Ark. Code Ann. § 9-27-502 (Repl. 1999). The new language provides for a determination of capacity to stand trial for juveniles charged with certain crimes (capital murder being one of them). Further, it properly provides for an “age appropriate” capacity standard to apply to juveniles, which is different than that of adults.
It should be noted that while the applicable juvenile code does not speak in terms of insanity as a defense, the 1999 amendment has included an evaluation of the juvenile’s mental state and capacity with regard to mental disease or defect as part of the process of evaluating a juvenile under the age of thirteen who is charged with capital murder or murder in the first degree. | [
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W.H. “Dub” Arnold, Chief Justice.
Appellant, Walsticappeals e. circuit-court judgment, based upon a jury verdict, awarding appellee, Carolyn Binns, $750,000.00 in compensatory damages and $2,000,000.00 in punitive damages relating to Binns’s abuse-of-process and malicious-prosecution claims against Wal-Mart. On appeal, Wal-Mart contends that the circuit court erred by failing to direct verdicts on both claims because Binns failed to prove (1) the essential elements of the tort of abuse of process, and (2) the elements of the tort of malicious prosecution, namely, lack of probable cause and malice. Additionally, Wal-Mart argues that Binns was erroneously awarded punitive damages based upon a lesser degree of scienter than was required for the underlying tort. Although the appeal was originally filed in the Court of Appeals, we granted appellant’s request for supreme-court jurisdiction and accepted the case to consider a significant issue needing clarification or development of the law. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. R. 1-2(b)(5) (1999). After considering the issues on appeal, we find merit in appellant’s arguments. Accordingly, we hold that the circuit court erred by failing to direct verdicts on the abuse-of-process and malicious-prosecution claims, and we reverse the award of punitive damages.
Background
Carolyn Binns was an employee in the Monticello, Arkansas, Wal-Mart lay-away department. David Craig and Tim Langley, two of Wal-Mart’s managers, suspected Binns of theft through falsification of computer cash-register entries. In support of management’s belief that Binns had taken money from the registers, Wal-Mart points to the following facts: (1) on numerous occasions Binns canceled the final payment on a lay-away account shortly after a customer paid off the account and received the merchandise; (2) the register cash reports failed to show an “overage” when Binns performed this function; (3) Craig and Langley believed that the cash reports should have shown an overage in that situation; and (4) no other Wal-Mart employee performed the function Binns performed.
Following an internal investigation and questioning of Binns, Langley called the Monticello Police Department and reported the results of Wal-Mart’s investigation. Detective Charles Cater continued the investigation at the Wal-Mart store and, according to Langley, reviewed the entire file compiled by management, including detail tapes, cash reports, Langley’s notes, and payroll archives, that reflected the cancellation of final lay-away payments and the fact that the cash drawer was not “over” on the days on which these layaway payments were canceled. Detective Cater copied some portion of the file and sought an arrest warrant for Binns. Following a probable-cause hearing, a warrant was issued for Binns’s arrest. Flowever, approximately one year later, the prosecuting attorney nolle prossed the charges against Binns, apparently based upon insufficient evidence. Subsequently, Binns filed an action against WalMart for negligent prosecution, abuse of process, and malicious prosecution. Although the circuit court granted Wal-Mart summary judgment on the negligent-prosecution claim, a jury ultimately returned a verdict in Binns’s favor on the remaining claims.
Appellee’s principal witness at trial was Kevin Parker, a former Wal-Mart assistant manager at the Monticello store while David Craig was manager. Parker testified as an expert witness regarding procedures Wal-Mart employees should follow in a theft investigation. He also tendered his opinion as to what cash reports and computer records would reveal when a final lay-away account payment was made, canceled, and money remained in the cash drawer. Significantly, Parker acknowledged that management believed they had probable cause to bring charges against Carolyn Binns. Moreover, he testified that, based upon his review of the evidence and his personal knowledge of Craig, there was no ill will, spite, hatred, or spirit of revenge at work.
Wal-Mart timely moved for directed verdicts on both the abuse-of-process and malicious-prosecution counts. In response, Binns argued that based upon Kevin Parker’s testimony, probable cause did not exist for her arrest and Craig and Langley were incompetent and negligent in referring her to authorities. She also suggested that Wal-Mart’s motivation was that “[t]hey didn’t know the computer system, . . . They didn’t know how to run it.” In fact, she described their conduct as a “mistake” because they did not ask her any questions about how the computer ran and mistakenly concluded that she took money. Notably, Binns also admitted that she had no indication that either Craig or Langley were motivated by revenge, ill-will, spite, or hatred.
Binns also averred that Wal-Mart used the criminal prosecution in an effort to extort money from her. However, her own recollection belies that claim. She testified that Langley told her, “No matter what you say we’re going to prosecute; you’re going to pay this money back.” In light of this statement, Binns argues that the evidence was sufficient for the jury to infer malice, a required element for the tort of malicious prosecution. The circuit court agreed and denied appellant’s directed-verdict motions. From the verdict and damages awarded in favor of appellee, comes the instant appeal.
I. Abuse of process
Wal-Mart’s first point on appeal challenges the circuit court’s denial of its directed-verdict motion on Binns’s abuse-of-process claim. In reviewing the trial court’s denial of appellant’s directed-verdict motion, we must view all reasonable inferences in the light most favorable to Binns and affirm the jury’s verdict if there is substantial evidence to support it. Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture. Garrett v. Brown, 319 Ark. 662, 665, 893 S.W.2d 784, 786 (1995). Here, we conclude that the jury lacked sufficient evidence to support the verdict, and we reverse.
In order to prove the tort of abuse of process, a plaintiff must establish the following elements: (1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a willful act in the use of process not proper in the regular conduct of the proceeding. Union Nat. Bank of Little Rock v. Kutait, 312 Ark. 14, 16, 846 S.W.2d 652, 654 (1993). The key to an abuse-of-process claim is improper use of process after issuance, even when issuance has been properly obtained. Id. As distinguished from malicious prosecution, abuse of process “is somewhat in the nature of extortion or coercion.” Id.
In the instant case, Binns failed to introduce sufficient evidence to support her abuse-of-process claim. First, she produced no evidence that Wal-Mart committed an abusive or coercive act after the arrest warrant was issued. Second, she introduced no evidence that the process was initiated to accomplish an ulterior purpose for which it was not designed. In fact, Binns’s own testimony failed to support her theory that Wal-Mart threatened criminal prosecution in an effort to extort money from her. According to Binns’s, Langley told her, “No matter what you say we’re going to prosecute; you’re going to pay this money back.” The tenor of Langley’s alleged statement is that Binns would not escape prosecution regardless of her promise to pay. Likewise, appellee’s suggestion that Langley attempted to have her criminal charges reinstated after they were nolle prossed is not sufficiently borne out by the record. Langley testified only that he may have made one phone call to the prosecutor after he learned that the criminal charges were nolle prossed.
In sum, we cannot say that substantial evidence supported the jury’s findings that Wal-Mart’s actions were undertaken to accomplish an ulterior purpose for which the process was not designed. Nor can we find substantial evidence in the record that Wal-Mart acted wilfully in the use of process after issuance. Viewing all reasonable inferences in the light most favorable to appellee, we reverse the circuit court’s denial of appellant’s direct-verdict motion, and we reverse the jury’s verdict.
II. Malicious prosecution
Wal-Mart’s second point on appeal assigns as error the circuit court’s denial of its directed-verdict motion with respect to Binns’s malicious-prosecution claim. Again, when we review the trial court’s denial of appellant’s directed-verdict motion, we must view all reasonable inferences in the light most favorable to Binns and affirm the jury’s verdict if there is substantial evidence to support it. Garrett, 319 Ark. at 665, 893 S.W.2d at 786. We have held that the essential elements of the tort of malicious prosecution are (1) lack of probable cause, and (2) malice. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 31, 781 S.W.2d 31, 33 (1989). Significantly, the two elements are not interchangeable, although malice may be inferred from lack of probable cause. Id. Probable cause for prosecution must be based upon the “existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which he is charged.” Id.
Generally, ordinary caution is a standard of reasonableness and an issue for the jury. Id. However, when the facts relied upon to establish probable cause are undisputed, the question of whether probable cause exists is one for the courts. Keebey v. Stifft, 145 Ark. 8, 21, 224 S.W. 396, 400 (1920). If Wal-Mart, as the defendant in this malicious-prosecution case, “believed and had grounds for entertaining ‘honest and strong suspicion’ that (Binns] was guilty” of a crime, it was entitled to a directed verdict. See id. Here, Wal-Mart claims that its employees, Craig and Langley, believed and had grounds for an honest and strong suspicion that Binns was taking money from the cash registers because (1) she canceled customers’ final lay-away payments shortly after they left the store with merchandise, and (2) cash reports revealed no corresponding cash overage. Notably, Binns introduced no evidence to contradict Wal-Mart’s argument that Craig and Langley believed that the cash report should have shown an overage under these circumstances. In fact, she suggested that they made a “mistake.” Viewed in the light most favorable to Binns, we cannot say that the jury had substantial evidence to find that Wal-Mart lacked probable cause.
To maintain a malicious-prosecution action, Binns must also prove the existence of malice. See Kable v. Carey, 135 Ark. 137, 142, 204 S.W. 748, 750 (1918). In support of the malice element, Binns relies upon the expert testimony of Kevin Parker, who reported that the Wal-Mart computer system would not have shown an overage when she canceled the last payment, even if she did not remove from the drawer the amount of the canceled payment. However, Parker also testified that, in his opinion, Craig and Langley believed that they had probable cause to conclude that Binns was taking money from the register. Moreover, based upon his evidentiary review and personal knowledge, Parker admitted that he did not believe that Craig and Langley’s actions in initiating the criminal proceedings arose from ill will, spite, or a spirit of revenge. Similarly, Binns’s own testimony confirms her belief that Wal-Mart management acted out of incompetence.
In the absence of any evidence of malice, the malicious-prosecution claim dissolves. Moreover, we expressly reject Binns’s argument that malice may be presumed from appellant’s negligence. Viewing all reasonable inferences in the light most favorable to Binns, we hold that the jury lacked substantial evidence to satisfy the elements of malicious prosecution. Accordingly, we conclude that the trial court erred by failing to direct a verdict in Wal-Mart’s favor, and we reverse the jury’s verdict.
III. Punitive damages
Wal-Mart’s final point on appeal is that the circuit court erred by permitting punitive damages to be awarded based upon a lesser degree oí scienter than was required for the underlying tort. The jury returned a general verdict for damages, awarding Binns $750,000.00 in compensatory damages and $2,000,000.00 in punitive damages, attributable to both the abuse-of-process and malicious-prosecution claims. Based upon AMI 2217, the circuit court instructed the jury that “in order to recover punitive damages from [Wal-Mart], Carolyn Binns has the burden of proving that the defendant intentionally pursued a course of conduct for the purpose of causing damage.” (Emphasis added.) In selecting AMI 2217, the court declined Wal-Mart’s proffered instruction requiring Binns to prove ' that Wal-Mart “intentionally and maliciously pursued a course of conduct for the purposes of causing damages to Carolyn Binns, carried out with the state of mind characterized by hatred, ill will, or a spirit of revenge.”
Appellant notes that the use of AMI 2217 under the instant facts creates an inconsistent standard for awarding punitive damages when the underlying tort involves malice. We agree. For example, the underlying claim of malicious prosecution (which could have formed the sole basis for the challenged punitive-damages award), requires that the plaintiff prove intent and a spirit of ill will, hatred, or revenge. However, the jury instruction submitted inconsistendy permits an award based on a lesser degree of scienter, merely proof that the defendant intentionally pursued a course of conduct for the purpose of causing damage. In hght of the nature of appellee’s claim, we conclude that the circuit court erred by submitting AMI 2217 to the jury because the instruction is inadequate for a tort requiring proof of malice. We reverse the circuit court’s judgment and award of punitive damages.
Special Associate Justices W.H. “SONNY” DILLAHUNTY and JONANN CONIGLIO FLEISCHAUER, join.
Glaze and Brown, JJ., dissent.
Corbin, Imber, and Smith, JJ., not participating. | [
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Conley Byrd, Justice.
Following the remand of this case to the Arkansas Savings and Loan Association Board pursuant to our decision in Arkansas Savings & Loan Ass'n Board v. Central Arkansas Savings & Loan Ass'n, 256 Ark. 864, 510 S.W. 2d 872 (1974), the Arkansas Savings and Loan Association Board again sustained the protest of appellant Security Savings & Loan Association by denying Central Arkansas Savings & Loan Association’s application for a charter. Before the order denying the application had been served upon the parties, appellant’s counsel picked up a copy of the order at the Board’s office and, notwithstanding that his protest had been sustained, filed an appeal in the Circuit Court of Pulaski County. Thereafter appellee, Central Arkansas Savings and Loan Association, filed an appeal in the Circuit Court of Faulkner County. The Circuit Court of Pulaski County upon motion transferred the appeal pending therein to the Circuit Court of Faulkner County. From that order appellant brings this appeal which we dismiss for the reasons stated in Arkansas Savings & Loan Ass’n Board v. Corning Savings & Loan Ass’n, 252 Ark. 264, 478 S.W. 2d 431 (1972).
Appeal dismissed. | [
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George Rose Smith, Justice.
This suit, originally a divorce case, has narrowed down to a dispute about the custody of the parties’ four-year-old daughter, Amy. In December of 1972 the appellee, the husband, obtained an uncontested decree of divorce upon allegations of desertion and adultery. The chancellor awarded custody of the child to the appellee, finding that he was a proper person to have the care of the child and that the mother was morally unfit for that responsibility.
A few months later the appellant, who had married David Jaworski three weeks after the divorce, sought custody of her daughter, asserting a change of conditions. After an extended hearing the chancellor entered an order enlarging the mother’s visitation privileges but denying her request for a change of custody. This appeal is from the latter part of that order.
We need not detail the testimony, which simply presents contested issues of fact. The weight of the evidence shows that the appellee filed suit for divorce after the appellant had left him, had taken Amy with her to Memphis, Tennessee, and there had occupied an apartment with Jaworski. In the court below the appellant admitted that while she was living in that apartment she had permitted another young woman to spend the night there upon a number of occasions with any one of several different men.
We cannot say that the chancellor was wrong in not finding a change of conditions sufficient to require a change of custody. In the original decree of divorce the court found that the appellant was morally unfit to have the custody of her daughter. Later events of an external nature, such as the appellant’s marriage to Jaworski, her attendance at church services, and her ability to provide a home for Amy, fall short of compelling one to conclude that the appellant’s character has also changed. For that reason the cases relied upon by the appellant are not persuasive. For example, in Perkins v. Perkins, 226 Ark. 765, 293 S.W. 2d 889 (1956), we pointed out that there was nothing in the record to indicate that the mother was not a proper person to have the custody of her child. No such statement can be made in this case.
In electing to decide the case upon its merits we are to some extent bypassing the appellee’s insistence that the appeal should be dismissed because of the appellant’s asserted failure to obtain from the trial court, in the time and manner specified by Ark. Stat. Ann. § 27-2127.1 (Supp. 1973) and by Supreme Court Rule 26A, an extension of time for the filing of the record in this court. Upon this point the proof, which is not entirely clear, suggests that the extension was sought not because the court reporter was unable to meet the deadline for filing the record but because counsel wanted more time for the preparation of the appellant’s brief in this court. In fact, a motion for an.extension of brief time was sent to our clerk before the record had been lodged here and hence before we had jurisdiction of the case.
As we pointed out in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973), the legislative intent in the enactment of Section 27-2127.1, supra, was to eliminate unnecessary delay in the docketing of appeals to this court. Certainly the legislative purpose was not to provide a means by which needless postponements could be obtained. We expect com-plicance with the spirit of the statute, to the end that lawsuits may progress as expeditiously as justice requires.
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W.H. “Dub” Arnold, Chief Justice.
The issue in this appeal stice. reserving his objections to jurisdiction and service of process and reserving the right to plead further in his original responsive pleading, the appellee “asserted” these defenses, as required by Ark. R. Civ. P. 12(b). We hold that appellee’s reserving of objections amounted to “asserting” the defenses, and we hereby affirm the trial court’s dismissal of this action.
Appellant, as executrix of the estate of Carrie Floy Rickett, sued appellee on a promissory note. That case was dismissed without prejudice because appellant failed to obtain service of process upon appellee within the time allowed under Ark. R. Civ. P. 4(i). Appellant refiled her action against appellee on January 19, 1999, and appellee answered the complaint on January 26, 1999, without process ever having been served upon him. Appellee’s answer included the following separate paragraph:
Defendant reserves the right to plead further and reserves objections on the basis of (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state facts upon which relief can be granted, and (7) failure to join a party under Rule 19, if any.
Service of process was admittedly never made upon appellee, and on May 26, 1999, appellee filed a motion to dismiss, contending that the time allowed for obtaining service of process upon him had elapsed and that he was therefore now entitled to an order of dismissal with prejudice. The trial court agreed and dismissed the case with prejudice in an order filed on August 24, 1999. This appeal followed.
As a sole point on appeal, appellant asserts that by filing an answer in which he simply reserved his objections to jurisdiction and service of process, rather than asserting these grounds as defenses, the appellee had submitted himself to the jurisdiction of the lower court by virtue of his answer, thereby waiving any objections he might otherwise have had. We disagree that appellee’s actions constituted a waiver of defenses and hold instead that said defenses were properly preserved by the appellee.
Appellant contends that neither Ark. R. Civ. P. 12(h) nor the case of Farm Bureau Mutual Insurance Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), permits a defendant to reserve the right to plead further or to reserve objections which, under Rule 12(h), must be made prior to or be included in the original responsive pleading. In that case, the defendant specifically answered the complaint and at the same time reserved its objections to the court’s lack of jurisdiction and the plaintiffs’ insufficient service of process, just as the appellee did in the instant case. The trial court in Farm Bureau dismissed the case, finding that neither waiver nor estoppel applied; we affirmed the trial court therein, noting that in deciding whether a defendant has waived his rights and entered his appear anee, the determining factor is whether the defendant seeks affirmative relief, that is, whether the pleading filed is more than a defensive action. See Story v. Brewer, 232 Ark. 558, 339 S.W.2d 104 (1960). Just as in the instant case, the defendant in Farm. Bureau asked for no affirmative relief.
We further held in Farm Bureau that estoppel does not apply where the defect in the summons itself is so substantial as to render the process void. See Storey, supra. Here, as in Farm Bureau, the appellant admits that no service of summons whatever was made on the appellee; thus, estoppel simply is inapplicable iii these circumstances and will not be applied.
Rule 12(b) of the Arkansas Rules of Civil Procedure provides that every defense to a claim for relief in any pleading “shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (2) lack of jurisdiction over the person, ... (5) insufficiency of service of process.” (Emphasis added.) Rule 12(h), governing waiver or preservation of certain defenses, provides that a defense of lack of jurisdiction over the person or insufficiency of service of process “is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading.”
In this case, although service of process was admittedly never made upon appellee, the appellee filed an answer specifically reserving his objections to the jurisdiction of the person and the insufficiency of service of process. Then, after the time for service of process had expired, he elected to file a motion to dismiss based on these grounds, pursuant to Rule 12(b). We hold that appellee properly asserted these defenses and clearly preserved them under Rule 12(h) by including them in his original responsive pleading and by further filing a motion to dismiss once the time for service of process had expired. As such, we affirm the trial court’s dismissal.
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DONALD L. Corbin, Justice.
Appellants Floyd G. “Buddy” stice. official capacity as Pulaski County Judge, and Pat Tedford, in her official capacity as Pulaski County Treasurer, appeal the judgment of the Pulaski County Circuit Court finding that Appellants were estopped from removing $109,332.51 from the Pulaski County Common School Fund and requiring a return of the money to that fund. Appellees Pulaski County Board of Education and its individual members cross-appeal the trial court’s finding that Act 213 of 1997 is constitutional. We have jurisdiction of this case pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(1) & (6). Appellants argue that the trial court lacked subject-matter jurisdiction to hear this claim. We agree, and we reverse.
The record reflects that for a period of approximately forty years prior to 1997, the Pulaski County Treasurer divided penalty payments from delinquent taxes equally between the common school fund and the Pulaski County General Fund. The parties agree that until February 19, 1997, there was no statutory authority for such division and disbursement. On that date, however, Governor Mike Huckabee signed Act 213, now codified at Ark. Code Ann. § 26-36-209 (Supp. 1999), which provided that all such penalties are to be divided equally between the common school fund and the county general fund if such division was the practice at the time of the statute’s enactment.
On March 27, 1997, Appellant Villines signed an executive order removing all funds placed in the common school fund for the months of January, February, and March 1997. Those funds totaled $109,332.51, and were subsequently transferred to the county general fund. Appellees filed suit in circuit court alleging that the order removing the funds violated section 26-36-209. Specifically, Appellees contended that Appellants were estopped from removing such funds because of their prior practice of placing those monies in the common school fund.
Appellees sought a declaratory judgment that the removal was illegal and further requested that Appellants be required to return the money to the common school fund. Appellants filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(1) and (6) alleging lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted. In an order dated May 20, 1998, the circuit court found that it had jurisdiction over the subject matter of the claim. The court went on to find that Act 213 was constitutional because its provisions did not conflict with Article 16, § 11, of the Arkansas Constitution. The court further found that the Act was “enacted” for purposes of the statutory language on February 19, 1997, the date the governor signed the act. Finally, the court reserved ruling on the issue of whether the State was estopped from discontinuing payments or withdrawing payments already made. A hearing was held on February 1, 1999, to decide the estoppel issue. The circuit court ultimately entered an order finding that Appellants were estopped from removing the $109,332.51 and required Appellants to return the money to the common school fund. This appeal followed.
Appellants’ initial argument on appeal is that the circuit court lacked subject-matter jurisdiction to hear this claim because county courts have jurisdiction over cases involving county funds. Appellees respond by arguing that school taxes are the subject of this lawsuit, not county taxes; thus, county court does not have jurisdiction. We agree with Appellants that the circuit court lacked subject-matter jurisdiction.
Article 7, § 28, of the Arkansas Constitution provides that county courts shall have exclusive original jurisdiction over all matters relating to county taxes. This jurisdictional rule is also set out in Ark. Code Ann, § 14-14-1105(b)(1) (Repl. 1998). It provides in relevant part:
Jurisdiction shall include all real and personal ad valorem taxes collected by a county government, including all related administrative processes, assessment of property, equalization of assessments on appeal, tax levies, tax collection, and distribution of tax proceeds.
Moreover, this court has repeatedly held that county courts have exclusive jurisdiction in all matters relating to county taxes. Pockrus v. Bella Vista Village Property Owners Ass’n, 316 Ark. 468, 872 S.W.2d 416 (1994); McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990). Even though the present matter does not involve a county tax, it certainly involves a matter relating to a county tax, namely, the assessment of a penalty resulting from the delinquent payment of county taxes.
Appellees attempt to argue that this matter involves an illegal exaction because a tax levied for schools was being used for another purpose in contravention of Article 16, § 11. This argument fails for two reasons. First, this matter does not involve any tax, but rather a penalty assessed because of late payment of all ad valorem taxes, not just school taxes. Second, the issue here is one involving a procedural matter, namely, how to distribute collected penalties. This is more analogous to those procedural matters involving erroneous assessments or collections. In Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809, reh’g granted on other grounds, 321 Ark. 116-A, 901 S.W.2d 809 (1995), this court pointed out the distinction between a suit alleging that a tax is illegal and one alleging that a lawful tax is being erroneously assessed or collected. With regard to the latter, we stated that subject-matter jurisdiction belonged exclusively in county court. Likewise, subject-matter jurisdiction over this matter belongs exclusively in county court. Because we hold that the circuit court lacked subject-matter jurisdiction to hear this claim, it not necessary to address Appellants’ other points on appeal or Appellees’ point on cross-appeal. We thus reverse and dismiss this matter.
Glaze and Imber, JJ., concur. | [
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BRANDON J. HARRISON, Judge
11A casket bearing the remains of Frank Clayton lies buried in a Newton County cemetery, where it has been interred for almost twenty years. The casket was manufactured by appellee Batesville Casket Company and was sold in 1996 to Frank’s widow, appellant Zelma Magby, and his son, appellant Garry Clayton, by appellee Humphrey Funeral Service.
In 2010, Clayton and Magby sued Bates-ville and Humphrey based on a belief that the casket’s seal had been breached by water. Their complaint contained over a dozen counts and alleged similar problems with other Batesville caskets. Batesville and Humphrey moved to dismiss, citing the statute of limitation and the complaint’s failure to plead damages caused by a defect in the Clayton casket. The circuit court dismissed all causes of action with prejudice. We affirm.
|?In reviewing the grant of a motion to dismiss, we focus on the content of the pleadings and treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Hall v. Janes, 2015 Ark. 2, 453 S.W.3d 674. We will not reverse unless the circuit court abused its discretion in granting the motion to dismiss. See id.
The relevant pleadings in this case began in January 2008 when Clayton joined a class-action suit that had been filed in federal court against Batesville. The case pled that Batesville had guaranteed its caskets to resist penetration by water and other gravesite substances and that, because that guarantee was false, Batesville had violated the Arkansas Deceptive Trade Practices Act (ADTPA), breached warranties and contracts, committed fraud, and been unjustly enriched. On 1 October 2009, Clayton voluntarily nonsuited his federal-court case.
Less than a year later, on 30 September 2010, Clayton and Magby sued Batesville and Humphrey in Pope County Circuit Court, pleading most of the same counts that had been raised in the dismissed class-action suit — violation of the ADTPA, breach of warranty, breach of contract, and fraud. They also added several other causes of action: negligent design; negligent manufacturing; strict liability; outrage; violation of property rights involving a corpse (which was part of the strict-liability count); violation of a Federal Trade Commission (FTC) order; violation of “the funeral rule,” a federal regulation aimed at funeral providers; and civil action by a crime victim, pursuant to Arkansas Code Annotated section 16-118-107 (Supp. 2013). Their complaint essentially alleged that they had purchased a Bates-ville casket from Humphrey in 1996, that the |Rcasket was warranted not to leak for forty years after interment, and that they “learned that they may have been defrauded” in 2005 after becoming aware of other incidents involving Batesville’s caskets.
Because the Clayton casket was purchased in 1996 and the state-court complaint was not filed until 2010, Batesville and Humphrey moved to dismiss based on the statutes, of limitation — which ranged from three to five years on the claims pled in the complaint. Clayton and Magby responded that they could not have-discovered their claims until 2006 (a date set forth in an amended complaint) given Bates-ville’s and Humphrey’s fraudulent concealment. See Hipp v. Vernon L. Smith & Assocs., Inc,, 2011 Ark. App. 611, 386 S.W.3d 526 (holding that fraudulent concealment suspends the running of the statute of limitation until such time as the plaintiff discovers the fraud or should have discovered it by reasonable diligence).
The circuit court took up the issues and immediately trimmed three counts from Clayton and Magby’s complaint: violation of the FTC order for want of a private cause of action; violation of the funeral rule for want of a private cause of action; and civil action by a crime victim for want of conduct that constituted a crime. Clayton and Magby do not challenge these dismissals on appeal, so we affirm them without further discussion.
The circuit court then turned to the statute-of-limitation questions and ruled that Clayton and Magby failed to plead facts showing fraudulent concealment by Batesville and Humphrey. Consequently, in orders dated 30 March 2012, the court dismissed most of Clayton and Magby’s claims as time-barred. The only exceptions were the claims that Clayton had voluntarily dismissed in his federal-court case — violation of the ADTPA, |4breach of warranty, breach of contract, and fraud. The court reasoned that Clayton’s refiling of those claims within one year after their being nonsuited saved them from being dismissed. See Ark.Code Ann. § 16-56-126 (Repl. 2005) (the Arkansas Savings Statute).
Clayton and Magby asked for reconsideration and a chance to amend their complaint, despite having already amended it at least twice. The court allowed yet another amendment and emphasized that, if Clayton and Magby were to avoid a time-bar, they must plead facts showing Bates-ville’s and Humphrey’s fraudulent concealment. Clayton and Magby filed a third amended comjplaint, which stated that, due to fraudulent concealment, Clayton had not learned of his claims until 2006. The complaint did not say when Magby learned of her causes of action.
The court was generally satisfied that Clayton and Magby’s amendment made a case for fraudulent concealment. Nevertheless, in an order entered on 14 January 2013, the court dismissed most of their claims. The court ruled that, because Clayton had pled that he learned of his claims in 2006, the September 2010 complaint was too late to preserve his counts for negligent design, negligent manufacturing, breach of warranty, strict liability, fraud, outrage, and violation of property rights involving a corpse, all of which carried either three-year or four-year statutes of limitation. The court left standing Clayton’s claims for breach of contract and violation of the ADTPA, which were subject to five-year statutes of limitation. As to Magby, the court dismissed all of her claims because the complaint did not specify when she became aware of them.
At this point, the presiding judge, Judge Kenneth Coker, transferred the case to Judge Dennis Sutterfield for administrative reasons. Judge Sutterfield reviewed the entire |Bcase and entered an order on 24 May 2013 that dismissed all of Clayton and Magby’s claims with prejudice. Judge Sutterfield stated that he agreed with the earlier, partial dismissal by Judge Coker but that, in addition, “none of the causes of action should survive because sufficient facts have not been plead to establish actual injury or damages to the plaintiffs.” More precisely, he ruled that “there have been no facts set forth in the plaintiffs’ pleadings which establish any actual defects or failure of the casket involved in this lawsuit which resulted in any harm, injury or recoverable damages to the plaintiffs.” Clayton and Magby appealed.
We begin with Judge Sutter-field’s ruling that Clayton and Magby failed to plead facts showing any harm from a defect or failure in the casket they purchased. The essential law of pleading is that a plaintiffs complaint must contain a statement in ordinary and concise language of facts showing the pleader is entitled to relief. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377; Ark. R. Civ. P. 8(a) (2014). A complaint must state facts, not mere conclusions, and is subject to dismissal for failure to state facts on which relief can be granted. Hall, supra; Ark. R. Civ. P. 12(b)(6) (2014).
The original complaint in this case (which was incorporated into all amended complaints) scattered various allegations against Batesville and Humphrey throughout its twenty-four pages and ninety-one paragraphs. It alleged that the Clayton casket had “defects” and that Batesville and Humphrey misrepresented the casket’s resistance to water. Also, the complaint referenced what may be termed general design flaws found in Batesville caskets, stating that: “Plaintiffs became aware that other ‘leak-proof caskets marketed, sold, and distributed by the Defendants under warranties and/or with ^representations similar to, if not identical to, those made to them ... did in fact leak”; the defective caskets caused “tremendous emotional pain and suffering and financial loss to the families of those buried therein”; and “it was widespread knowledge throughout the casket/funeral industry that these so-called ‘sealer’ caskets did in fact begin to leak almost immediately” and “hastened the natural decomposition of the human body.” The damages pled by Clayton and Magby included mental anguish, mutilation of a corpse, and the difference between the value of the casket they were promised and the value of the casket they actually purchased.
We construe the complaint liberally, resolving all reasonable inferences in its favor. Ballard Group, Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, 436 S.W.8d 445. Yet, even under this lenient standard, the complaint here does not meet Arkansas’s fact-pleading standard.
A complaint is subject to dismissal if it fails to state general facts on which relief can be granted, or fails to include specific facts pertaining to one or more of the elements of the plaintiffs claim (after accepting all facts in the complaint as true and viewing them in the light most favorable to the plaintiff). See Smith v. Eisen, 97 Ark. App. 130, 245 S.W.3d 160 (2006) We must look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled—specific facts are required. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377.
Clayton and Magby’s complaint is devoid of specific facts showing that an identifiable defect existed in the particular casket that they purchased and that the defect caused their alleged damages. A conclusory statement that a product is defective is not 17sufficient; some factual support is required. See West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991). If a plaintiff asserts that he has been damaged, then his complaint must state facts that link his damages to the conduct of, or product supplied by, the defendant. That link was not established in this case.
The complaint also fails to include facts pertaining to all elements of the causes pled. An essential element of Clayton and Magby’s tort claims is that their damages were the result of a defect in the specific casket that holds the remains of their decedent. See Pace v. Davis, 2012 Ark. App. 193, 394 S.W.3d 859 (causation is an element of negligence); Ark.Code Ann. § 4-86-102 (Repl. 2011) (same for strict liability); Ark.Code Ann. § 4—88—113(f) (Repl. 2011) (violation of the ADTPA); Overturff v. Read, 2014 Ark. App. 473, 442 S.W.3d 862 (fraud); Coombs v. J.B. Hunt Transp., Inc., 2012 Ark. App. 24, 388 S.W.3d 456 (outrage). Similarly, an essential element of Clayton and Magby’s breach-of-contract and breach-of-warranty claims is that the sellers’ performance or the condition of the particular casket sold to them did not conform to the warranty or contract. See Forever Green Ath. Fields, Inc. v. Lasiter Constr., Inc., 2011 Ark. App. 347, 384 S.W.3d 540; AMI Civ. 2401 (2014) (breach of contract); F.L. Davis Bldrs. Supply, Inc. v. Knapp, 42 Ark. App. 52, 853 S.W.2d 288 (1993) (breach of implied warranties); Ark.Code Ann. § 4-2-714 (Repl. 2001); AMI Civ. 1012 (2014) (breach of express warranty).
Clayton and Magbjfs complaint states no facts that connect a defect in the particular casket they purchased to any damages they alleged. This is due, in no small part, to the fact that they have no way of knowing the condition of the casket they purchased; it has not been disinterred or inspected since its burial in 1996. Facts in a complaint are | ^treated as true, but a plaintiffs theories or speculation are not. Hamby v. Health Mgmt. Assocs., Inc., 2015 Ark. App. 298, 462 S.W.3d 298. The circuit court did not abuse its discretion in dismissing the complaint as factually deficient.
We turn now to Clayton and Magb/s claim that the circuit court erred in dismissing their complaint without allowing them to plead further. Rule 15 of the Arkansas Rules of Civil Procedure encourages liberal amendment of pleadings, although an amendment may be denied where the court determines that prejudice would result to the other party or that the disposition of the cause would be unduly delayed. Ark. R. Civ. P. 15(a). Similarly, Arkansas Rule' of Civil Procedure 12(j) provides that “if appropriate” a party will be given a chance to plead further following a dismissal. Still, the circuit court is vested with broad discretion in allowing or denying amendments. Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393, 430 S.W.3d 29.
Clayton and Magby filed their original complaint, plus other amended complaints, before suffering significant dismissals on 30 March 2012. Thereafter, they were given a final chance to amend their complaint to avoid dismissal. They duly made the amendment but still were unable to fully remedy their pleading deficiencies. Given these circumstances, Clayton and Magby were not deprived of a chance to amend their complaint and avoid a dismissal.
Along this same line, Clayton and Magby contend that Judge Sutterfield’s dismissal should have been without prejudice. But the two-dismissal rule, Arkansas Rule of Civil Procedure 41, works against them. When Judge Sutterfield dismissed the case, each of Clayton and Magby’s claims had previously been dismissed, either through a' voluntary |flnonsuit or for failure to state a cause of action or plead facts to avoid the statute of limitation. A second dismissal operates as an adjudication on the merits and is with prejudice. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003); Ark. R. Civ. P. 41(b). Some causes of action in this case had actually been dismissed more than once, and could have been dismissed with prejudice earlier. In any event, Judge Sutterfield’s final dismissal with prejudice was correct under the two-dismissal rule. See Ballard, supra; Smith, supra.
Our decision makes it unnecessary to address the parties’ arguments regarding the statute of limitation or the alternate reasons for affirmance put forth by Bates-ville and Humphrey.
Affirmed.
Gruber and Vaught, JJ., agree. | [
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COURTNEY HUDSON GOODSON, Associate Justice
IsAppellants GGNSC Arkadelphia, LLC d/b/a/ Golden Living Center-Arkadelphia, and others, bring this interlocutory appeal from the order entered by the Ouachita County Circuit Court certifying a class action filed by appellees Nellie R. Lamb, by and through Richard Williams, as guardian of the estate and person of Nellie R. Lamb, and others. For reversal, appellants contend that appellees did not meet their burden of proving the predominance of common issues for the certification of the class. They also argue that class adjudication is neither efficient nor fair and that the class definition is flawed. We affirm the circuit court’s decision.
I. Factual Background
The appellants in this case are twelve nursing-home facilities doing business as Golden |fiLiving Centers in cities throughout the State of Arkansas. Appellants also include alleged related entities and various officers, directors, administrators, and persons allegedly serving in leadership positions. Appellees, who are former residents of the nursing homes or special administrators, guardians, or attorneys-in-fact of former residents, brought this class-action suit against appellants in the Circuit Court of Ouachita County. In a second amended complaint, appellees individually, and on behalf of all residents of the Golden Living Centers from December 2006 to July 1, 2009, alleged -that appellants breached their statutory and contractual obligations by failing to properly staff the facilities and by failing to meet minimum staffing requirements. Specifically, appellees asserted that the alleged practice of chronically understaffing the nursing homes breached the facilities’ standard admission agreement and violated the Arkansas Long-Term Care Residents’ Rights Act (Residents’ Rights Act). Based on the alleged violation of the Residents’ Rights Act, they also presented a claim under the Arkansas Deceptive Trade Practices Act (ADTPA). Appellees sought punitive damages and compensation for an array of injuries arising from the loss of dignity, the deprivation of residents’ rights, poor hygiene, filthy living conditions, foul odors, the delivery of cold food, as well as damages for other injuries including pressure sores, malnutrition, dehydration, infection, bone fractures, falls, concussions, lacerations, and medical errors.
Following the initial complaint and also after filing the second amended complaint, 17appellees moved for class certification of the three claims. Appellants opposed the motions, and the parties briefed the contested issues. After conducting two hearings, the circuit court entered an order granting class certification on July 11, 2014. The court defined the class as,
All residents and estates of residents who resided at the Golden Living nursing homes in Arkansas from December 2006, through July 1, 2009. Excluded from the Class are (1) residents that have sued in the past or presently have lawsuits pending against any of the Defendants except the plaintiffs named herein; (2) all present and former employees, officers, directors, of Defendants; (3) any Class Member who timely elects to be excluded from the class; and (4) any employee of the Circuit Court of Ouachita County, Arkansas, or any officer of any court presiding over this action.
In its order, the court noted that the class exceeded 3,400 residents. Further, the circuit court found that commonality was established because the central issue affecting both the named plaintiffs and the putative class is whether appellants’ alleged business practice of chronically un-derstaffing the nursing homes breached the standard admission agreement and violated the Residents’ Rights Act, as well as the ADTPA. In particular, the circuit court found that the issues common to all class members included,
A. Whether Defendants’ standard admission agreement imposes minimum-staffing requirements;
B. Whether Ark.Code Ann. § 20-10-1201, et seq. imposes minimum staffing requirements;
C. Whether Defendants failed to meet the minimum staffing requirements of Ark.Code Ann. § 20-10-1201, et seq., and the Defendants’ standard admission agreement;
D. Whether failure to meet the minimum staffing requirements breaches the standard admission agreement;
E. Whether failure to meet minimum staffing requirements violates Ark.Code Ann. § 20-10-1201 et seq.;
|SF. Whether failure to meet minimum staffing requirements of Ark.Code Ann. § 20-10-1201 et seq., is a violation of the Arkansas Deceptive Trade Practices Act; and
G. Whether Leslie Campbell, Cindy Susienka, James Avery, Andrea Clark, David Mills, Julianne Williams, David Stordy, Larry McFadden, Angela Mar-lar, Billie Palculict, Sybil Adams, Troy Morris, Avie Singleton, Tracey Burlison, Mincie Thomas, Tommy Johnston, John McPherson, Laurie Herron, Margaret Green, Noreen Bailey, Marsha Parker, and Lisa Hensley are control persons as defined in Ark.Code Ann. § 4-88-113(d)(1) and therefore jointly and severally liable for the damages suffered by the plaintiff class.
Based on this court’s precedent in Beverly Enterprises-Arkansas, Inc. v. Thomas, 870 Ark. 310, 259 S.W.3d 445 (2007), the circuit court found that the issues common to the class predominated over any individual issues and that the element of superiority was satisfied. The court also determined that appellees established the requirements of typicality and adequacy. Finally, the circuit court concluded that the class definition was sufficient. Appellants bring this interlocutory appeal from the circuit court’s order, as permitted by Arkansas Rule of Appellate Procedure-Civil 2(a)(9).
II. Standards of Review
At the outset, we note that class certification of a lawsuit is governed by Rule 23 of the Arkansas Rules of Civil Procedure. Circuit courts are given broad discretion in matters regarding class certification, and we will not reverse a circuit court’s decision to grant or deny class certification absent an abuse of discretion. ChartOne, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008). When reviewing a circuit court’s class-certification order, this court reviews the evidence contained in the record to determine whether it supports the circuit court’s decision. Teris, LLC v. Golliher, 371 Ark. 369, 266 S.W.3d 730 (2007). Our focus |9is “whether the requirements of Rule 23 are met,” and “it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action.” Philip Morris Cos. v. Miner, 2015 Ark. 73, at 3, 462 S.W.3d 313 (quoting Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004)). Stated another way, “we will not delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met.” Id. (quoting Nat’l Cash Inc. v. Loveless, 361 Ark. 112, 116, 205 S.W.3d 127, 130 (2005)).
Our law is well settled that the six requirements for class-action certification, as stated in Rule 23, are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). In addition to the requirements of Rule 23, the court must be able to objectively identify members of the class. Farmers Ins. Co. v. Snowden, 366 Ark. 138, 233 S.W.3d 664 (2006).
IÍI. Predominance
As their primary issue on appeal, appellants contend that the circuit court abused its discretion by finding that the issues common to the class predominate over individual issues. In this regard, appellants assert that the questions of causation and injury are foundational elements of all the claims and that class certification is improper because these issues must be resolved on an individual basis. They maintain that for each claim, whether it be the alleged breach of admission agreement or alleged violations of the Residents’ Rights Act and the ADTPA, appellees must prove a causal connection between the allegation of understaffing and 1 inany resulting injury. Appellants contend that the experiences and injuries of the residents are varying and that individualized proceedings will be necessary to determine if any alleged injury was proximately caused by understaffing. In making this argument, appellants rely on the affidavit of Elaine Townsley, a registered nurse who is famil iar with staffing requirements of long-term-care facilities. She averred that “not all residents are affected the same by a facility’s failure to meet minimum staffing requirements for a particular shift” and that some residents may “suffer no injury as a result of this failure to meet minimum staffing requirements.”
Rule 23(a)(2) provides that a representative party may sue on behalf of a class only if there are “questions of law or fact common to the class.” “When the party opposing the class has engaged in some conduct afflicting a group that gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.” Faigin v. Diamante, 2012 Ark. 8, at 5, 386 S.W.3d 372, 376. Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members[.]” Predominance is a more stringent requirement than commonality. United Am. Ins. Co. v. Smith, 2010 Ark. 468, 371 S.W.3d 685. This court has explained that the starting point in examining the predominance issue is whether a common wrong has been alleged against the defendant. Diamante v. Dye, 2013 Ark. 501, 430 S.W.3d 710. If a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement of Rule 23 is satisfied, even if the circuit court must subsequently determine individual damage issues in bifurcated proceedings. DIRECTV v. Murray, 2012 Ark. 366, 423 S.W.3d 555. We have recognized that a bifurcated process of certifying a class to resolve preliminary, common issues and then decertifying the class to resolve individual issues, such as damages, is consistent with Rule 23. Id. Thus, this court has observed that the question becomes whether there are overarching issues that can be addressed before resolving individual issues. Hotels.com, L.P. v. Pine Bluff Advertising & Promotion Comm’n, 2013 Ark. 392, 430 S.W.3d 56. However, if preliminary issues are individualized, then the predominance requirement is not satisfied. Johnson’s Sales Co. v. Harris, 370 Ark. 387, 260 S.W.3d 273 (2007). Indeed, this court has observed that a case which presents numerous individual issues regarding the defendants’ conduct, causation, injury, and damages will best be resolved on a case-by-case basis. Baker v. Wyeth-Ayerst Lab. Div., 338 Ark. 242, 992 S.W.2d 797 (1999).
In Thomas, supra, the plaintiffs pursued a class-action suit against a nursing home located in Batesville. The complaint asserted that, pursuant to the facility’s admission agreement, as well as the Residents’ Rights Act, the nursing home was obligated to take care of the residents’ basic daily needs and that the nursing home had failed to meet this obligation by neglecting to properly and adequately staff the facility. The circuit court granted class certification, finding that the common issues predominated over individual ones. On appeal, the nursing home argued that the circuit court erred by certifying the class because the identified questions of fact could not be resolved without a detailed examinations of the individual circumstances of each class member and because the predominant issues raised involved only individualized issues of liability, causation, and the existence and extent of | ^injury for each class member. This court rejected the nursing home’s argument and affirmed the class-certification order, holding as follows:
We conclude that one main and preliminary overarching issue does exist in this case, which is whether the Bates-ville nursing facility was chronically understaffed so as to violate the residents’ statutory and contractual rights. In its order, the circuit court found thirteen questions of fact and law and five issues that must be resolved, which are common to all class members. The five issues all involved understaffing. The court then found that the common factual and legal issues predominated over the individual issues because all residents relied upon the same Resident Admission Agreement and statutory law to assert that systemic understaffing resulted in undignified living conditions for the residents, which breached that agreement and violated state law. The circuit court recognized that once these predominating issues were resolved, the class could be decertified, if necessary, to determine individual restitution and damage issues for class members for breach-of-contract and statutory violations.
We hold that the circuit court did not abuse its discretion in determining that the overarching issue of understaffing is common to the class and may be resolved before individual issues of damages must be addressed. The predominance criterion is satisfied in this case.
Thomas, 370 Ark. at 318, 259 S.W.3d at 450.
Here, appellants acknowledge that in Thomas we rejected essentially the same arguments appellants raise in the instant appeal. However, they contend that the circuit court misplaced its reliance on Thomas in light of subsequent case law. Appellants assert that the law as it has been developed since Thomas precludes class certification where causation and injury are foundational elements to a determination of liability and where there is no one set of operative facts to establish a defendant’s liability to the class members. Specifically, appellants suggest that the holding in Thomas has been eroded by the decisions in Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493, Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1, and Union Pacific Railroad v. Vickers, 2009 Ark. 259, 308 S.W.3d 573.
|1sIn Bedell, this court held that causation is an element necessary for the recovery of damages under the Residents’ Rights Act and that the circuit court erred by not including the element of causation in the jury instructions. In Hernandez, the circuit court denied certification of a subclass of apartment dwellers who asserted tort claims arising from carbon monoxide exposure allegedly caused by the flawed design of HVAC and hot-water systems in the apartment complex. We affirmed that decision on the basis that proximate causation is a “foundational element” of the asserted torts of strict liability, negligence, wrongful death, and outrage. Hernandez, 2009 Ark. 480, at 31, 347 S.W.3d at 19. In so holding, we reasoned that the plaintiffs could not establish liability without addressing the individualized issues of proximate causation, which involved a consideration of the extent of exposure to carbon monoxide and how that exposure caused damage to the putative class members. Similarly, in Vickers, this court reversed the certification of a class where the alleged wrongdoing involved allegations that the railroad had engaged in settlement practices that violated the ADTPA and that constituted the illegal practice of law. We determined that class certification was improper because the railroad’s settlement practices differed from class member to class member, such that there was no common pattern of facts to establish liability. Because there was “no one set of operative facts” to establish liability, we deemed certification inappropriate. Vickers, 2009 Ark. 259, at 19, 308 S.W.3d at 582.
Contrary to appellants’ assertion, this court broke no new ground in either Her nandez or Vickers. In each case, we referred to our decision in Baker, supra, a mass-tort action filed against manufacturers, suppliers, and distributors of certain diet drugs, alleging claims for [ unegligence, products, liability, failure to warn, and breach of warranties. The plaintiffs in that case argued the predominance of common issues, such as whether the diet drugs were defective products and whether the defendants gave adequate warning of the risks associated with taking diet drugs. However, the circuit court denied class certification. This court affirmed, holding that “this case presents numerous individual issues that go to the heart of the defendants’ conduct, causation, injury, and damages such that the defendants’ liability as to each plaintiff will have to be resolved on a case-by-case basis.” Baker, 338 Ark. at 249, 992 S.W.2d at 801. We further observed that the amount or combination of diet drugs a plaintiff took, combined with his or her personal medical history, might make the drugs dangerous for one party and not for another. We also commented that “the only thing the plaintiffs have in common is that they all took one or a combination of the diet drugs listed in the complaint.” Id.; see also Mittry v. Bancorpsouth Bank, 360 Ark. 249, 200 S.W.3d 869 (2005) (holding that individualized questions concerning the defendant’s responsibility for diminished sales prices of class members’ bonds predominated over any common questions, rendering class certification inappropriate).
The common thread in Hernandez, Vickers, and Baker is that in each of those cases there was no overarching issue common to the class that would establish the defendants’ liability. Instead, the defendants’ liability depended on an examination of facts that were peculiar to each class member. By contrast here, there are core issues common to each class member on the issues of liability concerning (1) whether appellants had a duty to provide appropriate staffing pursuant to the admission agreement and the Residents’ Rights Act; (2) whether a 1 ^violation of the residents’ rights establishes liability under the ADT-PA, and (3) whether appellants failed to meet the statutory and contractual obligations by chronically understaffing the facilities. Answering these common questions has the capacity to “reveal the possibility for a claim against [appellants], or wipe out the possibility of a claim for every class member.” Snowden, 366 Ark. at 149-50, 233 S.W.3d at 672. Thus, we disagree with appellants’ argument that the issue of causation and varying fact patterns are sufficient to defeat class certification under these circumstances.
Furthermore, our decision in Thomas stands on solid footing as reflected in both prior and subsequent case law. Before that decision, we had observed that there is a distinction between the individualized issues of recovery and common issues of a defendant’s overall liability:
Challenges based on the statute of limitations, fraudulent concealment, releases, causation, or reliance have usually been rejected and will not bar predominance satisfaction because those issues go to the right of a class member to recover, in'contrast to underlying common issues of the defendant’s liability.
SEECO, Inc. v. Hales, 330 Ark. 402, 413, 954 S.W.2d 234, 249 (1997) (citing 1 Herbert B. Newberg, Newberg on Class Actions § 4.26 (3d ed.1992)); see also Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). Since the decision in Thomas, “we have said time and time again, the mere fact that individual issues or defenses may be raised regarding the recovery. of individual class members cannot defeat class certification where there are common questions that must be resolved for all class members.” Hotels.com, 2013 Ark. 392, at 14, 430 S.W.3d at 64 (emphasis supplied); see also Kersten v. State Farm Mut. Auto. Ins. Co., 2013 Ark. 124, 426 S.W.3d 455; Ark. Media, LLC v. Bobbitt, 2010 Ark. 76, 360 S.W.3d 129; | Rosenow v. Alltel Corp., 2010 Ark. 26, 358 S.W.3d 879; Vickers, supra; The Money Place, LLC v. Barnes, 349 Ark. 518, 78 S.W.3d 730 (2002). Stated another way, predominance does not fail simply because there are individual issues that may arise; the central question to be resolved by the circuit court is whether there are overarching issues that can be addressed before resolving individual issues. FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008).
Given the distinction we have drawn between individualized issues of liability and ultimate recovery, it is apparent that appellants have taken out of context our observations in Hernandez that causation is a foundational element of tort liability and in Vickers that class treatment is inappropriate when there is no one set of operative facts to establish liability. In those cases, the element of predominance was not satisfied because liability could not be established without individualized inquiry. In other cases, like Thomas, class certification may be proper when issues of liability are common to the class and predominate over individualized issues regarding a class member’s right to recover damages. When we apply our precedents here, the common, overarching issues concern whether appellants have liability for chronic understaffing under the admission agreement and the asserted statutes. These central issues can be decided on a classwide basis, and they manifestly predominate over individual issues concerning a class member’s right to recovery, which can be determined in bifurcated proceedings. The circuit court did not abuse its discretion in concluding that the element of predominance was satisfied based on the common issues of establishing liability.
Appellants also contend that predominance is defeated because five of the forty-three |17named class representatives and some of the putative class members may have entered into optional arbitration agreements. Citing Sanders v. Robinson Humphrey / American Express, Inc., 1986 WL 10096, at *6 (N.D.Ga.1986), appellants argue that the existence of arbitration agreements with a substantial number of class members provides another individual issue that predominates over common issues. In Sanders, class certification was denied 'because virtually all of the putative class members had entered into an arbitration agreement. While there might be an occasion where the number of class members subject to an arbitration agreement could militate against class treatment, appellants fail to persuade us that this individualized issue predominates in this case. On this record, we cannot conclude that a significant number of class members have agreed to arbitration so as to override the certification of the class.
In addition, appellants assert that class treatment is inappropriate regarding the claim that is based on the admission agreement. They argue that preliminary issues of whether each class member had a contract with appellants and whether those contracts were standard, identical, or substantially similar must be resolved before it can be determined whether any such agreement was breached. We cannot agree. Throughout the proceedings, ap-pellees maintained that appellants used a standard admission form at each facility. Appellees based this assertion on representations made by appellant Leslie Camp bell, a ranking corporate officer of the facilities. Although appellants disputed this assertion by presenting evidence of other admission agreements, the circuit court did not abuse its discretion, as the court could rely on the representation made by Campbell. Moreover, appellants have failed to demonstrate that these other agreements are materially different from the standard admission agreement [ 18submitted by appellees.
IV. Superiority
In challenging the circuit court’s superiority finding, appellants continue to assert that individual issues dominate those common to the class. They maintain that the bifurcated process is not feasible in this case because a phase-one class proceeding focused on the question of understaffing at twelve different facilities over a two-and-one-half-year period covering 944 days and 32,031 unique shifts makes the class approach unworkable. They contend that, because it is necessary to determine injury, causation, and damages on an individual basis after decertification, the determination of understaffing will create practical difficulties for the circuit court in managing the case as a class action.
This court has repeatedly held that the superiority requirement is satisfied if class certification is the more efficient way of handling the case and is fair to both sides. Rosenow, supra. The avoidance of multiple suits lies at the heart of any class-action decision. Id. Furthermore, where a cohesive and manageable class exists, we have often held that “real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for a trial on individual issues, if necessary.” Snowden, 366 Ark. at 150, 233 S.W.3d at. 672.
Also, this court has repeatedly recognized that conducting a trial on the common issue in a representative fashion can achieve judicial efficiency. Bryant, supra. Furthermore, we have routinely stated that the bifurcated process of class actions is consistent with Rule 23(d), which allows the circuit court to enter orders necessary for the appropriate management of the class |]9action. Id.
We hold that the circuit court did not abuse its discretion in finding that the class-action approach is a superior method for resolving the question of appellants’ liability. As we said in Thomas, “[t]he most efficient way to handle this ease is to certify a class to determine the issue of whether Beverly systematically and chronically understaffed the Batesville nursing facility and then to decertify the class, if necessary, to determine individual restitution and damage claims as well as any defenses in separate proceedings.” Thomas, 370 Ark. at 320, 259 S.W.3d at 451 — 52. The same is true here. Determining the central questions whether understaffing creates contractual or statutory liability and whether chronic understaffing occurred are more efficiently handled in a single proceeding. Otherwise, there exists the possibility of a multiplicity of suits across the state with the potential that circuit courts may reach inconsistent results. See Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991) (holding that the repeated litigation of the liability question and the possibility of inconsistent results outweighed the fact that each claimant would have different evidence regarding damages). We also do not agree that efficiency is compromised because the class action covers twelve facilities. As appellants have acknowledged, the facilities are required to submit a written report of all shifts that fail to meet minimum staffing requirements. See Ark. Code Ann. § 20-10-1407 (Repl. 2014). Therefore, the determination of under- staffing is not unmanageable simply because twelve facilities are involved. We see little to be gained by requiring, as appellants’ argument would suggest, class-action suits for each facility. The promotion of judicial economy is best served by a single proceeding rather than twelve | ^separate class actions. We affirm on this point.
V. Class Definition
As their final point on appeal, appellants contend that the class definition is fatally overbroad and imprecise because it does not limit the class to members who suffered an injury and sustained damages as a result of understaffing. This argument is decidedly without merit.
Before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. Baptist Health v. Hutson, 2011 Ark. 210, 382 S.W.3d 662. The class must first be susceptible to precise definition to ensure that the class is neither “amorphous,” nor “imprecise.” Ferguson v. Kroger Co., 343 Ark. 627, 632, 37 S.W.3d 590, 593 (2001). Furthermore, for a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria. Hutson, supra.
Appellants misstate our case law as requiring that a class must be defined to limit membership only to those who have sustained actual harm. What we have said, many times, is that “[cjlearly defining the class ensures that those people who are actually harmed by a defendant’s wrongful conduct will participate in the relief ultimately awarded.” Hutson, 2011 Ark. 210, at 5, 382 S.W.3d at 667; see also United Am. Ins. Co., supra; Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008); Golliher, supra; State Farm Fire & Casualty Co. v. Ledbetter, 355 Ark. 28, 129 S.W.3d 815 (2003); Ark. Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Ferguson, supra., Ensuring the participation of all those who have been harmed does not translate into a requirement that the definition must include an element of actual harm. On the contrary, it would be improper to define a class by reference to actual injury because this would require a determination of the merits of a putative class member’s claim. However, neither the circuit court nor the appellate court may delve into the merits of the underlying claim when deciding whether the requirements of Rule 23 have been met. Sw. Bell Yellow Pages, Inc. v. Pipkin Enters., Inc., 359 Ark. 402, 198 S.W.3d 115 (2004) (reversing class definition that required delving into the merits of the case). Accordingly, we find no abuse of discretion in the circuit court’s definition of the class.
Affirmed.'
Hart and Wood, JJ., dissent.
. The facilities are located in Arkadelphia, Camden, Crossett, El Dorado, Harrison, He-ber Springs, Hot Springs, McGehee, Monticello, North Little Rock, and Rogers. | [
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James H. Mckenzie, Special Justice.
This is an illegal exaction suit filed pursuant to Article 16, Section 13 of the Arkansas Constitution and the Declaratory Judgment Act, Ark. Stat. Ann. § 34-2501 et. seq. (Repl. 1962). Jim Murphy, the plaintiff and appellant, is a citizen and taxpayer of Pope County, Arkansas. In this action, he represents all taxpayers within the state who might be potentially affected by the alleged illegal exactions. By his complaint in Pope County Chancery Court, the plaintiff alleged that the Arkansas Housing Development Agency should be enjoined from issuing Single Family Mortgage Bonds and Multi-Family Mortgage Bonds pursuant to Arkansas Acts 1977, No. 427 (“Act 427”). The Chancellor, in a well-considered memorandum opinion, held that the Single Family Bonds and the Multi-Family Bonds did not violate the Arkansas Constitution and were for a valid public purpose. He ordered the plaintiff’s complaint dismissed. It is from this order of dismissal that the appellant appeals.
The Arkansas Housing Development Agency (“AHDA”) was created by the Arkansas General Assembly by Act 427. The portions of the Act material to this litigation are as follows: Sections 2.00 through 2.02 are recitations as to the need for the AHDA and the public purposes it is to serve, i.e., basically the need for housing for the people with low and moderate incomes. Sections 4.00 through 4.08 establish a public body corporate and politic with corporation succession to be known as the AHDA with a board of directors consisting of the Director of the Department of Finance and Administration and six members appointed by the Governor. Sections 5.00 through 5.23 state the powers of the Agency to include the power to borrow money and to issue bonds. Sections 7.00 through 7.15 authorize the Agency to make loans to mortgage lenders under rules adopted by the Agency, and Sections 8.00 through 8.13 authorize the Agency to purchase and participate in mortgages made to eligible persons or families within the State of Arkansas. Sections 9.00 through 9.03 empower the Agency to issue revenue bonds from time to time and in amounts to be determined by the Agency. The bonds shall be authorized by resolution of the Agency to be made in such denominations, to mature at such time and to bear interest at such rate as the Agency shall determine not to exceed 10 percent per annum. The bonds shall be executed by the signature of the Chairman of the Agency and the Director of the Agency. The Agency shall adopt a seal, and each bond shall be impressed with the seal of the Agency. Section 10.00 requires it be plainly stated on the face of each bond that it is issued under the provisions of Act 427 and that the bonds shall be obligations only of the Agency and that in no event shall they constitute an indebtedness for which the faith and credit of the State of Arkansas or any of its revenues are pledged. Section 10.01 provides that the principal of, interest on and the trustee’s paying agent’s fees in connection with the bond shall be secured by a lien and pledge of the loans made or mortgages purchased from the bond proceeds and the collateral security received by the Agency. Section 12.00 says that the bonds shall be exempt from all state, county and municipal taxes, except property taxes. Section 16.00 states that all revenues received by the Agency, except revenues derived from appropriation, are specifically declared to be cash funds restricted to be used solely as provided in Act 427. These revenues shall not be deposited into the State Treasury but deposited in an account for the Agency.
The Board of Directors of the AHDA on June 14, 1984, adopted a series of resolutions which authorized the issuance by the Agency of $150,000,000 of single family residential mortgage revenue bonds (hereinafter referred to as “Single Family Bonds”) and $30,078,090 of multi-family housing revenue bonds (hereinafter referred to as “Multi-Family Bonds”). The proceeds from the sale of the Single Family Bonds will be used by the AHDA to purchase mortgages secured by single family dwellings of families with low and moderate income as those terms are defined by the Agency. The proceeds from the sale of the Multi-Family Bonds will be used to provide funding for the rehabilitation and construction for multi-family housing projects in the State of Arkansas. These are revenue bonds to be repaid from the mortgage payments made by the owners of the single family and multi-family residences. The interest on the bonds will be exempt from federal income taxation if certain criteria are met and the bonds are issued prior to January 1, 1985. The appellant contends that the bond issues are illegal in that they violate Article 16, Section 1 and Amendment 20 of the Arkansas Constitution and that they are not for a valid public purpose.
It is the opinion of this court that for the proposed revenue bonds to be valid, they must pass two tests: 1) Not to be in violation of the Arkansas Constitution; and 2) Be for a public purpose. We have concluded that these particular bonds meet both of these tests for the reasons explained below.
1. Constitutional.
First, we point out that this case is factually distinguishable from Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936 (1984), where the court was considering bonds issued by the City of Little Rock to be paid by revenues generated under a lease to La Quinta of a motel on property owned by the City. The Purvis v. City of Little Rock, supra, bonds were issued pursuant to Arkansas Constitution Amendment 49, Act 9 of 1960 and Act 380 of 1971. In the case at bar, the bonds are authorized and issued by the AHDA pursuant to Act 427 and are not issued by the State of Arkansas or even in the name of the State of Arkansas. The AHDA is, by Section 4.00 of Act 427, a public body corporate and politic with corporation succession. The bonds here in question are obligations only of the AHDA and so state on their face. They do not constitute an indebtedness of the State of Arkansas under Section 10.00 of Act 427. Each bond bears the seal of the AHDA and not the State of Arkansas.
The Arkansas Constitution is not a grant of enumerated powers to the legislature but rather the legislature may rightfully excercise the power of the people subject only to the restrictions of the state or federal constitutions. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979). In the context of this case, the Arkansas Legislature could rightfully enact Act 427 to allow AHDA to issue the proposed revenue bonds without an election by the people of this state unless prohibited by the Constitution of the United States and/or Arkansas. It is not contended by either party that any provision of the United States Constitution is applicable, but appellant does argue that Article 16, Section 1 and Amendment 20 of the Arkansas Constitution prohibit the proposed bond issues. We do not agree. The concurring opinion of Justice Dudley in Purvis v. City of Little Rock, supra, is a recent statement of the reason why:
“Our cases constitute a well developed body of precedent, now stretching over half a century, by which this court has consistently interpreted the constitution to authorize governments to incur long term debt, without elective approval, in order to make authorized improvement for public purposes when the debt is to be paid out of revenues.”
282 Ark. at 126, 667 S.W.2d at 948. See also Miles v. Gordon, 234 Ark. 525, 353 S.W.2d 157, Davis v. Phipps, 191 Ark. 298, 85 S.W.2d 1020 (1935), Jacobs v. Sharp, 211 Ark. 865, 202 S.W.2d 964 (1947) and McArthur v. Smallwood, 225 Ark. 328 281 S.W.2d 428 (1955).
In Miles v. Gordon, supra, suit was brought seeking an injunction to prohibit the issuance of certificates of indebtedness to finance construction of buildings at the state-supported university and colleges under Act 65 of 1961. The certificates were to be repaid with interest received from the investment income received by the State Board of Finance on state funds. This interest went into a special fund and was pledged to the payment of the certificates of indebtedness. This was the sole source from which payment could be made. This court held that Act 65 and the certificates of indebtedness were not in violation of Article 16, Section 1 of the Constitution and said:
“Article 16, Section 1, of the Arkansas Constitution provides, inter alia, that the state shall not lend its credit for any purpose whatever. The answer to that argument is simply that Act 65 does not call for the State to lend its credit. The obligation arising under Act 65 is solely that of the Reserve Fund Commission. In Brown v. Arkansas Centennial Commission, 194 Ark. 479, 107 S.W.2d 537, the same contention was made in an attack upon Act 180 of 1935. This Court, after citing language of the Act to the effect that no bond, note, or other evidence of indebtedness issued under the Act or created by the Commission should be held or construed as an obligation of the State of Arkansas, stated:
‘It is plainly manifest from this language that the bonds to be issued are not obligations of the state, but “shall be solely and exclusively the obligations of the Commission in its corporate and representative capacity.” ’
This language is too plain to be misunderstood and is not open to construction. So the state is not lending its credit and it is not issuing any interest bearing treasury warrants or scrip, and the provisions of said section of the Constitution are not invaded.”
The Miles v. Gordon decision also concluded that Act 65 of 1961 did not violate Amendment 20.
In the case at bar, the AHDA is issuing bonds solely and exclusively as the Agency’s obligations and Act 427 specifically provides that the bonds shall be obligations only of the Agency. Those bonds are secured by a lien and pledge of the loans made or mortgages purchased from the proceeds and the collateral security received by the Agency. Section 10.01. The purchaser has no legal recourse against the State of Arkansas in the event of default of the bonds. Therefore, we conclude that on this set of facts, the state has not lent its credit. Consequently, Act 427 and the proposed bonds to be issued thereunder are not in violation of Article 16, Section 1.
Amendment 20 of the Constitution, as pertinent to this case, provides:
. . the State of Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the State or any of its revenues for any purpose whatsoever, except by and with the consent of the majority of the qualified electors of the State voting on the question at a general election or at a special election called for that purpose.”
Section 10.00 of Act 427 specifically says:
“It shall be plainly stated on the face of each bond that it has been issued under the provisions of this Act, that the bonds shall be obligations only of the Agency, and that in no event shall they constitute an indebtedness for which the faith and credit of the State of Arkansas or any of its revenues are pledged.”
In Purvis v. Hubbell, 273 Ark. 330, 620 S.W.2d 282 (1981), this court reviewed the holdings of McArthur v. Smallwood, supra, Miles v. Gordon, supra, and Holmes v. Cheney, 234 Ark. 503, 352 S.W.2d 943 (1962). It was concluded that bonds which are clearly not general obligation bonds of the city or state but are revenue bonds payable as authorized by the legislature from special funds not available for general purposes are not prohibited by the Arkansas Constitution, and such revenue bonds do not have to be approved by an election.
The bonds issued under Act 427 do not pledge the full faith and credit of the state nor the state’s revenues at all. The only revenues that are to be used to repay the bonds are the collection of the principal and interest from the loans made or mortgages, purchased with the bond proceeds. These revenues received by the Agency are not to be deposited into the State Treasury but rather are restricted in their use to be used by the Agency solely for the purposes of carrying out the provisions of Act 427. Section 16.00. There is no public money, either in the form of appropriations, rentals, license fees or the like, being pledged to support the repayment of these bonds. This is even a clearer case of there being no state revenues involved than were the facts of Purvis v. Hubbell, supra, Mr Arthur v. Smallwood, supra, Holmes v. Cheney, supra, and Miles v. Gordon, supra.
Act 427 is not in violation of Article 16, Section 1 or Amendment 20 of the Arkansas Constitution, and the revenue bonds to be issued by the AHDA are not subject to the requirement of an election. The remaining question is whether these bonds are for a public purpose.
2. Public Purpose.
In reviewing whether this legislation serves a public purpose, we do so in accordance with Kerr v. East Central Arkansas Housing Authority, 208 Ark. 625, 187 S.W.2d 189 (1945):
“Public policy is declared by the General Assembly; not by courts. Unless there is something in the Constitution restraining the Legislature from saying that a designated course of conduct or a policy is for the public welfare, or unless the thing authorized is so demonstrably wrong that reasonable people would not believe that such was the legislative intent; the Act must prevail.”
The concurring opinion of Justice Dudley in Purvis v. City of Little Rock, supra, can be applied in determining whether or not Act 427 is for a public purpose. That opinion, when applied to Act 427, says that the determi nation of whether legislation fulfills a public purpose is a legislative decision and a court will reverse that decision only if the legislature acted arbitrarily, unreasonably or capriciously. The court should not substitute its own j udgment for that of the legislature. As the Chancellor stated in his memorandum opinion, the legislature studied the need for the creation of the Arkansas Housing Development Agency and included in Act 427 particular findings of fact as to why it felt there was a public purpose. It is to be noted that Act 427 is the enabling legislation for the issuance of the Single Family Bonds and the Multi-Family Bonds. However, both series of bonds are issued under the AHDA’s bond authorization resolutions which set forth the terms of the bonds and how the bond proceeds will be used within the confines of Act 427. So, when this court examines the public policy of the bonds, we are not only reviewing the legislation but also the administration of this Act by the AHDA.
The evidence in the trial court concerning public purpose was either stipulated or uncontradicted.
As to the bond issue for single family dwellings, the proof shows that, at least in 1974, 70 percent of the state’s population was unable to afford a home through conventional private financing. The loan supported by the Single Family Bonds will be available only to families with annual incomes of $40,000 or less plus an additional $2,000 for each dependent. The interest rate for loans made under the bond issue is anticipated to be 11.5 percent, and the conventional loan interest rate is between 14 percent and 14.25 percent. Consequently, 20,000 potential home buyers would be eliminated from the housing market if the proposed bond issue is not implemented. The minimum qualifying income for a conventional loan of $37,000 is $21,469.68 per year. The qualifying annual income under the AHDA Single Family Bonds is $18,070.32. The median income in Arkansas is $19,737.00. Therefore, the proposed bond issue will allow families with less than the median income to purchase a home and save approximately $28,500 in interest over the life of a 30-year mortgage on a $37,000 loan. The testimony is that the AHDA bonds bring low and moderate income buyers into the housing market making it possible for them to obtain home loans where otherwise not available. There is a public purpose served by aiding the low and middle income residents of Arkansas to secure adequate housing which would otherwise be beyond their reach.
As to the Multi-Family Bond issue, 51 percent or more of the occupants must be families whose incomes do not exceed 1.5 times the median income of the State of Arkansas or the county in which the project is located, whichever is greater. Twenty percent of the occupants must have incomes of less than 80 percent of the median income. This is necessary because Act 427 does say that the bonds issued by the AHDA are to be tax exempt. To qualify as tax exempt, the Multi-Family Bond proceeds must be used to provide projects for residential rental property where 20 percent or more (except in “target areas”, where it is 15 percent) are to be occupied by individuals of low or moderate income, meaning the percentage of median gross income shall be 80 percent. 26 USCA Section 108. These requirements are to assure an “economic mix” of tenants. The testimony is that this will result in greater overall stability of the multi-family project, because there will be a mixture of economic households rather than being solely low income persons. This is to avoid the adverse consequences of isolating low income households. Wooten Epes, Executive Director of AHDA, testified that the requirement of 20 percent of the units in the project be reserved for persons whose income is not more than 80 percent of the median income is a form of rent subsidy for the poor. The developer will have to charge higher rent for the remainder of the units to generate enough cash flow to repay the indebtedness secured by the mortgage on the project that is pledged to the AHDA under the bond issue.
The concept of an ‘ ‘economic mix” in housing has been recognized in other jurisdictions as being for a public purpose by both courts and legislatures. The dominant intention of Act 427 is to provide adequate housing to people of low and moderate income. The concentration of low income families even in standard structures has been recognized as not eradicating undesirable housing or social conditions for the poor. However, integrating the housing of persons with varied economic means in the same rental projects and neighborhoods is conducive to the permanent elimination of substandard living conditions. Massachusetts Acts 1966, Chapter 708, Section 2; Tedford v. Massachusetts Housing Finance Agency, 459 N.E.2d 780 (Mass. 1984). This concept encourages the investment of private capital and stimulates construction of residential housing for the low and moderate income people by stabilizing the longevity of the project with an economic mix of residents. Virginia Housing Development Authority Act, Code Section 56-55.25; Infants v. Virginia Housing Development Authority, 272 S.E.2d 649 (Va., 1980). Act 427 states in Section 2.00 the legislature’s concern over depreciated property values, impaired economic values of large areas and reduced capacity to pay taxes where there exists a shortage of safe, adequate and sanitary residential housing in the state. We are persuaded by the reasoning of Infants v. Virginia Housing Development Authority, supra, that promotion of economic and social integration in low and moderate income housing will serve to reduce unsatisfactory social conditions in the rural and urban areas of this state. This intermingling of households of different economic strata reflects a legitimate public purpose of avoiding ethnic, economic and racial isolation. California Housing Finance Agency v. Elliot, 551 P.2d 1195 (Cal., 1976).
It is not overlooked that persons with unrestricted incomes will have access to possibly 49 percent of the multifamily housing allowed to be financed with Multi-Family Bonds. It is our conclusion that this is incidental and subordinate to the primary purpose of providing satisfactory housing for the poor and moderate income citizens of this state. In Grubbs v. Iowa Housing Finance Authority, 255 N.W.2d 89 (Ia., 1977), the Supreme Court of Iowa held a housing finance plan that required 30 percent of all housing units be for the elderly, handicapped and very low income to be for a public purpose and said:
"This built-in flexibility is reasonably designed by the legislature to promote the goal of adequate housing for the designated beneficiaries of the enactment, and does not convert a public policy into an unconstitutional private purpose.”
255 N.W.2d at 94.
Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940), held that housing for the low and moderate income is a valid public purpose. The Legislature has stated in Sections 2.00 through 2.02 of Act 427 that the statute is for a public purpose. The uncontradicted and stipulated proof in this case is that the statute and its administration by the AHDA with the proposed bond issue are for a public purpose. The Chancellor found the bonds to be for a public purpose. This court’s standard for reviewing a Chancellor’s finding of fact is that his decision will be affirmed unless clearly against the preponderance of the evidence. For the reasons set forth above, we are unable to say that the Chancellor erred in finding the issuance of the Single Family Bonds and the Multi-Family Bonds is for a valid public purpose.
We affirm the Chancellor’s dismissal of the appellant’s complaint.
Hubbell, C.J., and Hollingsworth, J., not participating.
Purtle, J., concurs. Hickman, J. dissents. | [
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George Rose Smith, Justice.
Section 23'of the Probate Code states what has long been the law in Arkansas: “If after making a will the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator’s spouse are thereby revoked.” Ark. Stat. Ann. § 60-407 (Supp. 1983). The question in this case, as argued by the appellant, is whether the statute is applicable when the testator’s marriage was void for bigamy. The probate judge held that, on the facts, the divorced wife of the testator is estopped to take advantage of the statute. We agree with that decision.
The testator, Charles A. Rickner, and the appellant, Nell Tarwater Rickner, were married in Mississippi in 1950, although Rickner was riot divorced from his first wife until 1952. In 1978 Rickner executed his will, naming his wife, the appellant, as his residuary beneficiary, with the property to be held in trust for the testator’s grandchildren if his wife predeceased him. In 1979 Rickner obtained a divorce from the appellant. The decree approved a property settlement agreement by which Mrs. Rickner received about $80,000 in cash or promissory notes, seven shares of stock, a car, and assorted household goods and furniture. Rickner died in 1980 without having revoked his will.
On the foregoing facts the case was submitted to the probate judge on briefs in September 1981. After an unexplained delay of two years the court entered a judgment holding that the decree of divorce was not void on its face and that the appellant, having received her share of the marital property, is estopped to claim that there was no valid marriage. The appeal comes to us under Rule 29 (1) (c).
It is conceded that a bigamous marriage is void. We need not decide, however, whether our implied revocation statute would apply to Rickner’s will if there were no basis for the trial court’s finding of an estoppel. There is a solid basis for that finding. The appellant recognized the validity of her marriage in obtaining her share of the marital property in the divorce proceeding. Without offering to return that property, she now seeks to obtain the bulk of her former husband’s remaining property on the ground that the marriage was void. The contradiction is undeniable. A party cannot invoke a court’s jurisdiction to obtain a benefit and then complain, in order to obtain an additional benefit, that the court had no jurisdiction. See Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959). Nothingwould be gained by our discussing the issue in further detail.
Affirmed. | [
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